Exhibit 10.20
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment") made as of the 1st day of December,
1995, by and among WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland real
estate investment trust ("Borrower"), THE FIRST NATIONAL BANK OF BOSTON,
individually ("FNBB"), the other lenders which are a party to this
Amendment, and THE FIRST NATIONAL BANK OF BOSTON, as Agent (the
"Agent").
W I T N E S E T H:
WHEREAS, Borrower, Agent and the lenders a party thereto entered
into that certain Second Amended and Restated Revolving Credit Agreement
dated June 30, 1995 (the "Credit Agreement"); and
WHEREAS, Borrower has requested that Agent, FNBB and the other
lenders which are a party hereto modify and amend certain terms and
provisions of the Credit Agreement;
NOW, THEREFORE, for and in consideration of the sum of TEN and
NO/100 DOLLARS ($10.00), and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
hereto do hereby covenant and agree as follows:
1. Definitions. All the terms used herein which are not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement.
2. Modification of the Credit Agreement. Borrower, Banks and
Agent do hereby modify and amend the Credit Agreement as follows:
(a) By inserting the following definitions in Section 1.1 of
the Credit Agreement:
"Bonds. The Palomino Park Public Improvements
Corporation Assessment Lien Revenue Bonds Series
1995-$14,755,000.00.
Bond Trustee. United States Trust Company of New York or
its permitted successors and assigns.
LC Expiration Date. The date upon which the Letter of
Credit has expired by its terms and been returned to the
Letter of Credit Issuer or has otherwise been surrendered to
the Letter of Credit Issuer without possibility of any further
drawing thereunder, and (i) all amounts owing to the Letter of
Credit Issuer under the Reimbursement Agreement and the other
Related Documents have been paid in full, and (ii) all
Obligations hereunder with respect to the Letter of Credit or
Loans made pursuant to Section 2.9 have been paid in full.
LC Exposure. The sum, as of any date of determination,
of (i) the maximum amount which the Letter of Credit Issuer
may be required to pay on such date or at any future time
under the Letter of Credit (without regard to any amounts that
as of such date of determination have been advanced and may be
reinstated in the future), plus (ii) the aggregate amount of
all payments that have been made by Letter of Credit Issuer
with respect to the Letter of Credit but have not been
reimbursed by the Borrower or any other person pursuant to the
Reimbursement Agreement or the promissory notes executed
pursuant thereto or converted into Loans pursuant to Section
2.9 hereof.
Letter of Credit Commitment. With respect to each Bank
the amount set forth on Schedule 1 hereto as the amount of
such Bank's Lender of Credit Commitment to make or maintain
advances with respect to the Letter of Credit, as the same may
be changed from time to time in accordance with the terms of
this Agreement. The Letter of Credit Commitment shall equal
$15,773,702.00 in the aggregate, except as such amount may be
reduced from time to time in accordance with the terms of this
Agreement; it being agreed that the Letter of Credit
Commitment shall not exceed $15,773,702.00.
Letter of Credit Commitment Percentage. With respect to
each Bank the percentage set forth on Schedule 1 hereto as
such Bank's percentage of the aggregate Letter of Credit
Commitments of all of the Banks, as the same may be changed
from time to time in accordance with the terms of this
Agreement.
Palomino Park. Palomino Park Public Improvements
Corporation, a Colorado nonprofit corporation.
Reimbursement Agreement. The Letter of Credit
Reimbursement Agreement among Palomino Park, Borrower and
Letter of Credit Issuer, dated as of December 1, 1995,
relating to the Letter of Credit, together with all
amendments, modifications, restatements, supplements or
consolidations thereof.
Related Documents. The "Related Documents," as such term
is defined in the Reimbursement Agreement, together with all
amendments, modifications, restatements, supplements or
consolidations thereof.
Revolver Commitment. With respect to each Bank the
amount set forth on Schedule 1 hereto as the amount of such
Bank's Revolver Commitment to make or maintain Loans to the
Borrower (other than with respect to advances relating to the
Letter of Credit pursuant to Section 2.9), as the same may be
changed from time to time in accordance with the terms of this
Agreement. The Revolver Commitment shall equal $133,000,000.00
in the aggregate, as such amount may be changed from time to
time in accordance with the terms of this Agreement.
Revolver Commitment Percentage. With respect to each
Bank, the percentage set forth on Schedule 1 hereto as such
Bank's percentage of the aggregate Revolver Commitments of all
of the Banks, as the same may be changed from time to time in
accordance with the terms of this Agreement.
Stated Amount. The term "Stated Amount" shall have the
meaning given to such term in Paragraph 2 of the Letter of
Credit.";
(b) By deleting the definition of the terms "Commitment,"
"Commitment Percentage," "Letter of Credit," "Letter of Credit Request"
and "Loans" appearing in Section 1.1 of the Credit Agreement, and
inserting in lieu thereof the following:
"Commitment. With respect to each Bank the Letter of
Credit Commitment and Revolver Commitment for such Bank, as
the same may be changed from time to time in accordance with
the terms of this Agreement.
Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's
percentage of the aggregate Letter of Credit Commitments and
Revolver Commitments of all of the Banks.
Letter of Credit. The Irrevocable Letter of Credit No.
967-95 in the stated amount of $15,773,702.00 issued by Letter
of Credit Issuer, dated December 1, 1995, together with any
replacements, substitutes, amendments, modifications or
supplements thereto permitted by this Agreement.
Letter of Credit Issuer. Dresdner Bank AG, New York
Branch, or any other branch or agency thereof which may issue
a substitute Letter of Credit as permitted in the
Reimbursement Agreement.
Loans. The aggregate Loans to be made by the Banks
hereunder, including without limitation, Loans made pursuant
to Section 2.1 and Section 2.9.";
(c) By deleting Section 2.1 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Agreement, each of the Banks severally
agrees to lend to the Borrower, and the Borrower may borrow (and
repay and reborrow) from time to time between the Closing Date and
the Maturity Date upon notice by the Borrower to the Agent given in
accordance with Section 2.6, such sums as are requested by the
Borrower for the purposes set forth in Section 7.11 up to a maximum
aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's Commitment,
provided, that, in all events no Default or Event of Default shall
have occurred and be continuing, and provided, further that at any
time the LC Exposure shall be greater than zero or any Loan made
pursuant to Section 2.9 shall remain Outstanding, none of the Banks
shall have any obligation to have an aggregate principal amount
outstanding under this Section 2.1 at any time greater than such
Banks' Revolver Commitment. In no event shall the outstanding
principal amount of the Loans pursuant to this Section 2.1 at any
time exceed the Total Commitment (or, if the LC Exposure is greater
than zero or any Loan made pursuant to Section 2.9 shall remain
Outstanding, the aggregate of the Revolver Commitments) or cause a
violation of the covenants set forth in Section 7.15 nor shall the
sum of (a) the outstanding principal amount of the Loans made
pursuant to this Section 2.1, and (b) the amount of the LC Exposure
and Loans made pursuant to Section 2.9 at any time exceed the Total
Commitment or cause a violation of the covenants set forth in
Section 7.15. The Loans pursuant to Section 2.1 shall be made pro
rata in accordance with each Bank's Commitment Percentage or if
prior to the LC Expiration Date, the Revolver Commitment
Percentage. The funding of a Loan hereunder shall constitute a
representation and warranty by the Borrower that all of the
conditions set forth in Section 10 and Section 11, in the case of
the initial Loan and Section 11, in the case of all other Loans,
have been satisfied on the date of such funding.";
(d) By deleting Section 2.2 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 2.2. Facility Fee. The Borrower agrees to pay to
the Agent for the accounts of the Banks in accordance with their
respective Commitment Percentages a facility fee calculated at the
rate of one-fourth of one percent (0.25%) per annum on the average
amount by which the Total Commitment exceeds the outstanding
principal amount of Loans made pursuant to Section 2.1 and Section
2.9 plus the amount of the LC. Exposure during each calendar
quarter or portion thereof commencing on the date hereof and ending
on the Maturity Date, provided, however, that in the event for any
quarter the ratio (expressed as a percentage) of (a) the average
amount of the outstanding principal amount of the Loans made
pursuant to Section 2.1 and Section 2.9 plus the amount of the LC
Exposure during such quarter to (b) the Total Commitment is greater
than sixty percent (60%), then the facility fee shall be calculated
at the rate of one-eighth of one percent (0.125%) for such quarter.
The facility fee shall be payable quarterly in arrears on the first
day of each calendar quarter for the immediately preceding calendar
quarter or portion thereof, and on any earlier date on which the
Commitments shall be reduced or shall terminate as provided in
Section 2.3, with a final payment on the Maturity Date.";
(e) By deleting Section 2.3 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 2.3. Reduction and Termination of Commitment. The
Borrower shall have the right at any time and from time to time
upon five Business Days' prior written notice to the Agent to
reduce by $1,000,000 or an integral multiple of $100,000 in excess
thereof or to terminate entirely the unborrowed portion of the
Commitments, whereupon the Commitments of the Banks shall be
reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case
may be, terminated, any such termination or reduction to be without
penalty (unless such termination or reduction requires repayment of
a Eurodollar Rate Loan); provided, however that the Commitments
shall not be reduced below the amount of the LC Exposure. Promptly
after receiving any notice of the Borrower delivered pursuant to
this Section 2.3, the Agent will notify the Banks of the substance
thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Agent for the respective
accounts of the Banks the full amount of any facility fee under
Section 2.2 then accrued on the amount of the reduction. No
reduction or termination of the Commitment may be reinstated. At
any time that any amount is available to be drawn under the Letter
of Credit or may be reinstated thereunder, the Letter of Credit
Commitment may be reduced only as provided in Paragraph 3(b) of the
Letter of Credit, and in the event of any reduction in the Letter
of Credit Commitment as provided herein, the Revolver Commitment
shall be increased on a dollar for dollar basis. In the event that
the Letter of Credit Commitment shall be reduced and the Revolver
Commitment increased as provided in the preceding sentence, the
Revolver Commitment Percentages and Letter of Credit Commitment
Percentages shall be adjusted in the following manner: (i) Letter
of Credit Issuer's Letter of Credit Commitment Percentage shall
equal fifty percent (50%); (ii) the sum of each Bank's Letter of
Credit Commitment and Revolver Commitment shall continue to equal
such Bank's Commitment; (iii) the Revolver Commitment and the
Letter of Credit Commitment, respectively, shall be equal for all
Banks that have equal Commitment Percentages; and (iv) Agent in the
exercise of its good faith judgment, while attempting to maintain
the relative proportions of the Banks existing prior to such
reallocation, shall allocate the increase in the Revolver
Commitment, and, subject to clause (i) above, the decrease in the
Letter of Credit Commitment among the Banks in such manner as Agent
shall determine. Following such allocation, the Revolver
Commitment, the Letter of Credit Commitment, the Revolver
Commitment Percentages and the Letter of Credit Commitment
Percentages of the Banks shall be recalculated by Agent, and such
calculations shall be binding upon Borrower and the Banks.";
(f) By inserting the following sentence at the end of Section
2.7 of the Credit Agreement:
"To the extent that Section 2.1 shall only require a Bank to
make available its Revolver Commitment Percentage of a requested
Loan, the references in this Section 2.7 to a Bank's Commitment
Percentage shall be deemed to be a reference to such Bank's
Revolver Commitment Percentage.";
(g) By deleting the fourth (4th) sentence of Section
2.8(a)(iv) of the Credit Agreement, in inserting in lieu thereof the
following:
"In the event that the amount approved by the Agent, the Banks
and the Potential Banks pursuant to Section 2.8(a)(iv) for such
extension is less than the Total Commitment, then the Borrower may
not request, and the Banks shall not be obligated to make, any
Loans pursuant to Section 2.1 for a period which is thirty (30)
days prior to the then effective Maturity Date which, when added to
the LC Exposure and any Loans made pursuant to Section 2.1 and
Section 2.9, would be in excess of the amount of the Total
Commitments approved by the Banks and the Potential Banks. ";
(h) By deleting Section 2.9 of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"Section 2.9 Letter of Credit.
(a) The Borrower has requested that Letter of Credit Issuer
provide the Letter of Credit as credit enhancement for the Bonds.
Park at Highlands LLC, a Subsidiary of the Borrower, is the owner
of Real Estate located in Xxxxxxx County, Colorado which will be
benefitted by the issuance of the Bonds and the improvements to be
constructed with the proceeds from the issuance of the Bonds. The
issuance of the Bonds and the Letter of Credit will inure to the
direct interest and benefit of the Borrower. The Borrower
acknowledges and agrees that the Letter of Credit Issuer would not
have agreed to provide the Letter of Credit unless the Banks agreed
to participate in advances made thereunder as provided in this
Agreement, and the Banks would not have agreed to participate in
such advances without (i) the agreement of the Borrower to repay
such advances in accordance with the terms of this Agreement and
(ii) the reservation of the Letter of Credit Commitment from the
Total Commitment.
(b) In the event that the Letter of Credit Issuer shall honor
any draw or other presentation for payment under the Letter of
Credit and the amount so paid by Letter of Credit Issuer shall not
be reimbursed by the Borrower or any other Person in the manner and
within the time period set forth in Section 2.1 or Section 2.2 of
the Reimbursement Agreement, the Letter of Credit Issuer shall
promptly notify the Agent in writing of the amount of such draw and
whether such draw was an "Interest Drawing," a "Principal Drawing'
or a "Liquidity Drawing" (as such terms are defined in the Letter
of Credit). In the event such notice shall be delivered to Agent
on or before 10:00 a.m. (Boston time) of a Business Day, the Agent
shall, prior to the end of such Business Day, without notice to or
the consent of the Borrower, notify the Banks of such draw, and the
Banks shall make available to the Agent in accordance with Section
2.7 their respective Letter of Credit Commitment Percentages of the
amount so paid by the Letter of Credit Issuer on or before 12:00
noon (Boston time) on the next Business Day; provided, however,
that the Letter of Credit Issuer shall automatically and without
further action be deemed to have advanced to itself on such
Business Day the amount of its Letter of Credit Commitment
Percentage of such draw without funding the same to the Agent.
Each Bank's obligation to make such payment to the Agent shall not
be limited or impaired by the occurrence or continuance of any
Default or Event of Default by Borrower, the failure to meet any
condition that otherwise must be met for the funding of any Loan,
or the failure of any other Bank to make any payment under this
Section 2.9(b), and each Bank further agrees that such payment
shall be made without any offset, abatement, withholding or
reduction whatsoever except as otherwise provided in any
intercreditor agreement among the Banks and Agent. The proceeds of
such funding by the Banks received by 12:00 noon (Boston time)
shall be paid by the Agent to the Letter of Credit Issuer on such
Business Day (or if received after such time, by the close of the
following Business Day) and all such amounts advanced by the Banks
hereunder (including, without limitation, the Letter of Credit
Issuer) shall be evidenced by the Notes. The amount so drawn shall
from the date of such advance by the Banks pursuant to this Section
2.9 be considered Loans for all purposes hereunder bearing interest
as provided in Section 2.5(a); provided, however, that the Borrower
shall pay the Letter of Credit Issuer interest at the rate and upon
the terms contained in the Reimbursement Agreement on the amount so
drawn from the date of such advance by the Letter of Credit Issuer
until the date of such advance by the Banks to Agent as provided
above. The Borrower irrevocably authorizes each Bank to make or
cause to be made such advances at such time notwithstanding the
fact that any other conditions to the obligations of the Banks to
make such advances to the Borrower under this Agreement may not
have been satisfied. At such time as the Banks shall fund or be
deemed to have funded a Loan pursuant to this Section 2.9(b), the
Borrower will be deemed to have reimbursed the Letter of Credit
Issuer under the Reimbursement Agreement for such amounts, and the
Borrower and Palomino Park therefore shall no longer be obligated
to reimburse such amounts pursuant to the Reimbursement Agreement,
and such obligation shall thereafter be evidenced by the Notes.
The provisions of Section 2.7 shall apply to any Banks failing or
refusing to fund its Letter of Credit Commitment Percentage with
respect to any such draw, and shall not affect the Borrower's and
Palomino Park's reimbursement obligations under the Reimbursement
Agreement and the Related Documents being deemed to have been
satisfied; provided, however, that the Borrower's and Palomino
Park's obligations under the Reimbursement Agreement and the
Related Documents with respect to a payment made under the Letter
of Credit shall not be deemed to have been reimbursed in the event
that all of the Banks fail or refuse to fund a Loan with respect
thereto pursuant to this Section 2.9(b) and none of such Banks
cures such failure or refusal within the time period permitted in
any intercreditor agreement among the Banks and Agent. If after
receipt of such funding from any Bank the Letter of Credit Issuer
receives payment from the Borrower or any other source on account
of the reimbursement obligation that was so funded, or the interest
accrued thereon, the Letter of Credit Issuer shall remit such
payment to the Agent for distribution to the Banks to the extent of
their participation therein.
(c) Provided that no Event of Default shall have occurred,
the Borrower may in connection with any prepayment of the
Obligations designate that any such prepayment be applied to reduce
the amount of Loans made pursuant to this Section 2.9 in order to
cause a reinstatement of the Letter of Credit in accordance with
its terms. Unless the amount of any "Liquidity Drawing" (as
defined in the Reimbursement Agreement) honored by Letter of Credit
Issuer is reimbursed by the Borrower or any other person to Letter
of Credit Issuer pursuant to Section 2.2 of the Reimbursement
Agreement in the manner and within the time period set forth in
Section 2.2 of the Reimbursement Agreement, no amount available to
be drawn under the Letter of Credit shall bc reinstated except as
provided in this Section 2.9(c).
(d) The Borrower acknowledges and agrees that the terms and
conditions of the Reimbursement Agreement and the Related Documents
are independent of the terms and provisions of this Agreement and
the other Loan Documents and shall not diminish, restrict or
otherwise limit the terms of this Agreement or any other of the
Loan Documents. The Reimbursement Agreement and the Related
Documents are not, and shall not be deemed to be, a novation,0
cancellation, satisfaction or substitution of this Agreement or any
other Loan Documents or the Obligations.
(e) Unless all of the Banks otherwise consent in writing, the
term of the Letter of Credit shall not be extended or renewed, nor
shall the terms of the Letter of Credit be amended, modified or
waived. The amount drawn under the Letter of Credit shall reduce
on a dollar for dollar basis the amount available to be drawn under
the Letter of Credit Commitment and the Total Commitment as a Loan;
provided, however, that the amount available to be drawn under the
Letter of Credit Commitment shall increase to the extent that
amounts available to be drawn under the Letter of Credit are
reinstated as provided in the first sentence of Section 2.9(c).
(f) Without duplication hereunder, the Borrower shall pay to
the Letter of Credit Issuer a non-refundable letter of credit
facing fee as provided in Section 2.8 of the Reimbursement
Agreement.
(g) The Borrower shall pay to the Agent for the account of
the Banks in accordance with their respective Letter of Credit
Commitment Percentages, a non-refundable letter of credit retention
fee calculated at the rate of one percent (1.0%) per annum of the
Stated Amount (without regard to reductions in the Stated Amount
subject to reinstatement, it being understood that reductions
effected by submission of a certificate in the form of Exhibit "D"
to the Letter of Credit are not subject to reinstatement). The
first payment of such fee shall be due January 1, 1996 for the
period from the date of issuance of the Letter of Credit through
December 31, 1995, and shall be payable quarterly in arrears
thereafter on the first (1st) day of each calendar quarter
thereafter for each quarter or portion thereafter, and on any
earlier date upon which the Letter of Credit shall expire or
terminate.
(h) On the LC Expiration Date, the Letter of Credit
Commitment shall be merged into the Revolver Commitment (which
shall then equal the Total Commitment) and the Borrower may borrow
(and repay and reborrow) such amounts as provided in this
Agreement, and each Bank's Commitment Percentage shall be
determined based upon the ratio that the sum of such Bank's
Commitment bears to the Total Commitment."
(i) By deleting the words "(including Letters of Credit
outstanding and accepted but unpaid)", appearing in the second (2nd) and
third (3rd) lines of Section 3.2 of the Credit Agreement, and inserting
in lieu thereof the words "(which for the purposes hereof shall include
the LC Exposure)";
(j) By inserting the following sentence at the end of Section
3.4 of the Credit Agreement:
"Notwithstanding the foregoing, except as otherwise provided
in Section 2.9(c) with respect to a reinstatement of the Letter of
Credit, each partial prepayment of the Loans shall be applied to
reduce the Loans made under Section 2.1 and the Loans made under
Section 2.9 on a pro rata basis based upon the aggregate amount of
each type of Loan Outstanding.";
(k) By deleting Section 4.4(c) of the Credit Agreement in its
entirety, and inserting in lieu thereof the following:
"(c) The obligations of the Borrower to the Banks under this
Agreement shall be absolute, unconditional and irrevocable, and
shall not be subject to any right of setoff or counterclaim against
any Bank, and shall be paid and performed strictly in accordance
with the terms of this Agreement, under all circumstances
whatsoever, including, without limitation, the following
circumstances: (i) any lack of validity or enforceability of this
Agreement, any other Loan Document or any Related Document; (ii)
any improper use which may be made of any Letter of Credit or any
improper acts or omissions of any beneficiary or transferee of any
Letter of Credit in connection therewith; (iii) any amendment or
waiver of, or any consent to departure from, all or any of the
Related Documents, this Agreement or any other Loan Document other
than, with respect to any particular obligation, the specific
waiver by the Banks of such particular obligation under this
Agreement, such Related Document or such Loan Document; (iv) the
existence of any claim, setoff, defense or any right which the
Borrower may have at any time against the Bond Trustee, any
beneficiary or any transferee of the Letter of Credit (or Persons
for whom the Bond Trustee, any such beneficiary or any such
transferee may be acting), the Banks (other than the defense of
payment to the Banks in accordance with the terms of this
Agreement) or any other Person, whether in connection with the
Letter of Credit, this Agreement, any other Loan Document, or any
other Related Document, the transactions contemplated herein or
therein or any unrelated transaction; (v) any statement,
certificate or any other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in
any respect whatsoever; (vi) any breach of any agreement or dispute
among or between Borrower and Bond Trustee, any beneficiary or
transferee of the Letter of Credit, Palomino Park or any other
Person; (vii) any irregularity in the transaction with respect to
which the Letter of Credit is issued, including any fraud by the
Bond Trustee or any beneficiary or transferee of the Letter of
Credit; (viii) any non-application or misapplication by the Bond
Trustee of the proceeds of any drawing under the Letter of Credit
or any other act or omission of the Bond Trustee or any other
Person in connection with the Letter of Credit; (ix) payment by the
Letter of Credit Issuer under the Letter of Credit against
presentation of a certificate which does not comply with the terms
of the Letter of Credit, (x) any extension of time for or delay,
renewal or compromise of or other indulgence or modification
granted or agreed to by the Banks with or without notice to or
approval by the Borrower with respect to the transactions
contemplated by this Agreement and the Reimbursement Agreement
other than, with respect to any particular obligation or cost, the
specific modification to the Borrower by the Banks of such
particular obligation or cost; and (xi) any other circumstance or
happening whatsoever, whether or not similar to any of the
foregoing. Nothing herein shall limit any rights which the Borrower
may have against the Letter of Credit Issuer pursuant to Section
8.1 of the Reimbursement Agreement.
(d) As among the Agent, the Banks and the Borrower, Borrower
assumes all risks of the acts or omissions of the Bond Trustee and
any transferee of the Letter of Credit with respect to its use of
the Letter of Credit. None of the Agent or the Banks nor any of
their respective officers or directors shall be liable or
responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Bond Trustee and any
beneficiary or transferee in connection therewith; (ii) any
reference which may be made to this Agreement, the Reimbursement
Agreement or the Letter of Credit in any agreements, instruments or
other documents; (iii) the validity, sufficiency or genuineness of
any document, or of any endorsement(s) thereon, even if any such
document should in fact prove to be in any or all respects,
invalid, insufficient, fraudulent or forged or any statement
therein should in fact prove to be untrue or inaccurate in any
respect whatsoever; (iv) payment by Letter of Credit Issuer against
presentation of documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (v) any
other circumstances whatsoever in making or failing to make payment
under the Letter of Credit. Without limiting the foregoing, the
Letter of Credit Issuer may accept any document that appears on its
face to be in order, without responsibility for further
investigation. The determination of whether a drawing has been made
under the Letter of Credit prior to its expiration date or whether
a drawing made under the Letter of Credit is in proper and
sufficient form shall be made by the Letter of Credit Issuer in its
sole discretion, which determination shall be conclusive and
binding upon Borrower to the extent permitted by law. Borrower
hereby waives any right to object to any payment made under the
Letter of Credit with regard to a drawing that is in the form
provided in the Letter of Credit, but which varies with respect to
punctuation, capitalization, spelling or similar matters of form.
Notwithstanding the forgoing, the Letter of Credit Issuer (but not
Agent or any of the other Banks) shall be liable to Borrower for
acts or events described in subsections (i) through (v) above to
the extent, but only to the extent, of any direct, as opposed to
indirect or special or consequential, damages suffered by Borrower
which Borrower proves were caused by: (x) the gross negligence or
willful misconduct of the Letter of Credit Issuer in determining
whether any draft or demand presented under the Letter of Credit
complies with the terms and conditions therefor stated in the
Letter of Credit, or (y) the willful failure of the Letter of
Credit Issuer to pay any draft or demand presented under the Letter
of Credit strictly complying with the terms and conditions of the
Letter of Credit; provided, however, that the maximum amount of
damages recoverable by Borrower as provided above is expressly
limited as provided in the Reimbursement Agreement to the Stated
Amount of the Letter of Credit.";
(l) By deleting the words "(including Loans and other
outstanding Letters of Credit (including Letters of Credit accepted but
unpaid))" appearing in the fifth (5th), sixth (6th) and seventh (7th)
lines of Section 7.1 5(a)(i) of the Credit Agreement, and inserting in
lieu thereof the words: "(including Loans and the LC Exposure");
(m) By inserting the following paragraph as Section 12.1(q)
of the Credit Agreement, appearing on page 64 thereof:
"(q) The Borrower or Palomino Park shall fail to perform any
term, covenant or agreement contained in the Reimbursement
Agreement or any of the other Related Documents;";
(n) By deleting the words "amount of the outstanding Letters
of Credit (including Letters of Credit accepted but unpaid)" appearing
in the twenty-eighth (28th) and twenty-ninth (29th) lines of Section
12.3 of the Credit Agreement, and inserting in lieu thereof the words
"amount of the LC Exposure";
(o) By inserting the following clause following the words "be
made among the Bank's pro rata" appearing in the fourteenth (14th) line
of Section 12.4(b) of the Credit Agreement, appearing on page 66
thereof:
"(it being agreed that such amounts shall be applied pro rata
among the Banks between the aggregate Obligations relating to Loans
made pursuant to Section 2.1 and Loans made pursuant to Section
2.9)";
(p) By inserting the following clause prior to the words "in
each case including" appearing in the thirtieth (30th) line of Section
16 of the Credit Agreement, appearing on page 73 thereof:
"(h) any untrue statement or alleged untrue statement of
any material fact contained or incorporated by reference in
any private placement memorandum, official statement,
preliminary official statement or other agreement relating to
the Bonds or the Letter of Credit (other than information
relating to the Letter of Credit Issuer and provided by the
Letter of Credit Issuer for inclusion therein), or the
omission or alleged omission to state in any private placement
memorandum, official statement, preliminary official statement
or other agreement relating to the Bonds or the Letter of
Credit any material fact necessary to make such statements, in
light of the circumstances under which they are or were made,
not misleading, (i) the execution and delivery or transfer of,
or payment or failure to pay under, the Letter of Credit, (j)
the issuance and sale of the Bonds, or (k) the use of the
proceeds of the Bonds,";
(q) By inserting the following Section 32 to the Credit
Agreement:
"Section 32. Additional Waivers. Borrower hereby agrees that
its obligations under this Agreement and the Loan Documents shall
not be affected or impaired by, and hereby waives and agrees not to
assert or take advantage of any defense based on: (a) the
incapacity or lack of authority of Palomino Park or any other
Person, or the failure of Agent or Letter of Credit Issuer to file
or enforce a claim against the estate (either in administration,
bankruptcy or in any other proceeding) of Palomino Park or any
other Person; (b) the voluntary or involuntary liquidation, sale or
other disposition of all or substantially all of the assets of
Palomino Park; (c) the voluntary or involuntary receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, assignment, composition, or readjustment of, or any
similar proceeding affecting, Palomino Park or any other Person, or
any of Palomino Park's or such other Person's properties or assets;
(d) the failure of the Agent, Letter of Credit Issuer or any of the
Banks to give notice of the existence, creation or incurrence of
any new or additional Obligation or of any action or nonaction on
the part of any other Person whomsoever in connection with any
Obligation; (e) any failure or delay of the Agent or the Letter of
Credit Issuer to commence an action against Palomino Park, to
assert or enforce any remedies against Palomino Park under the
Reimbursement Agreement or any other of the Related Documents, or
to realize upon any security; (f) any failure of any duty on the
part of the Agent, Letter of Credit Issuer or any of the Banks to
disclose to Borrower any facts it may now or hereafter know
regarding Palomino Park or the Bonds, whether such facts materially
increase the risk to Borrower or not; (g) the invalidity or
unenforceability of the Bonds, the Reimbursement Agreement or the
other Related Documents; (h) the compromise, settlement, release or
termination of any or all of the obligations of Palomino Park under
the Reimbursement Agreement or the other Related Documents; or (i)
to the fullest extent permitted by law, any other legal, equitable
or surety defenses whatsoever to which Borrower might otherwise be
entitled, it being the intention that the obligations of Borrower
hereunder are absolute, unconditional and irrevocable Borrower
further expressly waives any and all rights of subrogation to
Agent, Letter of Credit Issuer and the Banks against any Person
having any liability with respect to the Bonds (including, without
limitation, Palomino Park), and Borrower hereby waives any rights
to enforce any remedy which Agent, Letter of Credit Issuer or the
Banks may have against any Person having any liability with respect
to the Bonds (including, without limitation, Palomino Park), and
any rights to participate in any collateral for such Person's
obligations.";
(r) By deleting Schedule 1 attached to the Credit Agreement
in its entirety, and inserting in lieu thereof Schedule 1 attached
hereto and made a part hereof;
(s) All references in the Credit Agreement to "Letters of
Credit" shall be deemed to refer to the Letter of Credit;
(t) All references in Credit Agreement to "Letters of Credit
accepted but unpaid" shall be deemed to refer to "any draws under the
Letter of Credit accepted but unpaid"; and
(u) Any amounts which may now or hereafter be owed by
Borrower to Letter of Credit Issuer under the Reimbursement Agreement or
the Related Documents shall in all circumstances be considered unsecured
Indebtedness of Borrower for the purposes of the Credit Agreement,
regardless of whether Letter of Credit Issuer may now or hereafter have
any collateral (such as pledged Bonds or a deed of trust) for such
obligations.
3. Notes. All references in the Notes to the Credit Agreement
shall be deemed a reference to the Credit Agreement as modified and
amended herein.
4. No Default. By execution hereof, the Borrower certifies that
the Borrower is and will be in compliance with all covenants under the
Loan Documents after the issuance of the Letter of Credit. Each of the
representations and warranties made by or on behalf of the Borrower and
its Subsidiaries in or in connection with this Amendment, the
Reimbursement Agreement or the other Related Documents is true and
correct and no Default or Event of Default has occurred and is
continuing.
5. Waiver of Claims. Borrower acknowledges, represents and
agrees that to the best of Borrower's knowledge and belief after
reasonable inquiry and investigation, Borrower has no defenses, setoffs,
claims, counterclaims or causes of action of any kind or nature
whatsoever with respect to the Loan Documents, the administration or
funding of the Loans or with respect to any acts or omissions of Agent
or any of the Banks, or any past or present officers, agents or
employees of Agent or any of the Banks.
6. Ratification. Except as hereinabove set forth, all terms,
covenants and provisions of the Credit Agreement remain unaltered and in
full force and effect, and the parties hereto do hereby expressly ratify
and confirm the Credit Agreement as modified and amended herein.
Nothing in this Amendment shall be deemed or construed to constitute,
and there has not otherwise occurred, a novation, cancellation,
satisfaction, release, extinguishment or substitution of the
indebtedness evidenced by the Notes or the other obligations of Borrower
under the Loan Documents.
7. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same
agreement.
8. Miscellaneous. This Amendment shall be construed and enforced
in accordance with the laws of the Commonwealth of Massachusetts. This
Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors,
successors-in-title and assigns as provided in the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have hereto set their hands
and affixed their seals as of the day and year first above written.
THE FIRST NATIONAL BANK OF BOSTON, individually and as Agent
By:/s/ Xxxxxxx Xxxxxxx
-----------------------
Vice President
(BANK SEAL)
WELLSFORD RESIDENTIAL PROPERTY TRUST
By:/s/ Xxxxxxx X. Xxxxxx
------------------------
Title: Vice President
(CORPORATE SEAL)
BANK OF AMERICA ILLINOIS
By:/s/ Xxxxxx X. XxXxxxx
---------------------------
Title: Vice President
(BANK SEAL)
BANK ONE, ARIZONA, NA
By:/s/ Xxxx X. Xxxx
------------------
Title: Vice President
(BANK SEAL)
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Xxxxx X. Xxxxx
----------------------
Title: Assistant Vice President
(BANK SEAL)
CORESTATES BANK, N.A.
By:/s/ Xxxx X. Xxxx
-------------------
Title: Vice President
(BANK SEAL)
SHAWMUT BANK, N A.
By:/s/ Xxxxxxxx X. Xxxxxxx
------------------------
Title: Vice President
(BANK SEAL)
DRESDNER BANK, AG New York Branch and Grand Cayman Branch
By:/s/ Xxxxxxx X. Xxxxxx
Title: Vice President
Attest:/s/ Xxxxxx X. Xxxxxx
Title: Vice President
(BANK SEAL)
KREDIETBANK N.V.
By:/s/ Xxxxxxx Xxxxx
Title: Assistant V.P.
By:/s/ Xxxxxx Xxxxxxxx
Title: Vice President
(BANK SEAL)
SCHEDULE I
BANKS AND COMMITMENTS
Revolver Letter of Credit
Commitment Revolver Commitment Letter of Credit Commitment
Name and Address Commitment Percentage Commitment Percentage Commitment Percentage
---------------- ---------- ---------- ---------- ---------- ---------------- ----------------
The First National Bank of $30,000,000.00 20.000% $28,000,000.00 21.052632% $2,000,000.00 11.764706%
Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Eurodollar Lending Office
Same as above
Bank of America Illinois $20,000,000.00 13.333% $18,800,000.00 14.135338% $1,200,000.00 7.058824%
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx XxXxxxx
Eurodollar Lending Office
Same as above
Bank One, Arizona, NA $20,000,000.00 13.333% $18,800,000.00 14.135338% $1,200,000.00 7.058824%
Real Estate Lending
Dept. A-387
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxx Xxxx
Eurodollar Lending Office
Same as above
The First National Bank $20,000,000.00 13.3333% $18,800,000.00 14.135338% $1,200,000.00 7.058824%
of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx
00000-0000
Attn: Xx. Xxxxx X. Xxxxx
Eurodollar Lending Office
Same as above
Shawmut Bank, NA $20,000,000.00 13.333% $18,800,000.00 14.135338% $1,200,000.00 7.058824%
Commercial Real Estate
One Federal Street
OF 3003
Xxxxxx, Xxxxxxxxxxxxx
00000
Attn:
Xx. Xxxxxxxx X. Xxxxxxx
Eurodollar Lending Office
Same as above
Dresdner Bank, AG New York $15,000,000.00 10.0% $ 6,500,000.00 4.887218% $8,500,000.00 50.000000%
Branch and Grand Cayman
Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attn: Xx. Xxxxxxx Xxxxxx
Eurodollar Lending Office
Same as above
Kredietbank, N.V. $15,000,000.00 10.0% $14,000,000.00 10.526316% $1,000,000.00 5.882353%
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
Eurodollar Lending Office
Same as above
CoreStates Bank, N.A. $10,000,000.00 10.0% $9,300,000.00 6.992481% $ 700,000.00 4.117647%
Real Estate and Construction
Finance
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxx
Eurodollar Lending Office
Same as above
Percentages may not equal
100% due to rounding.
