AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment") is made
and executed as of the 6th day of April, 1998 by each of the entities
identified on Schedule A annexed hereto (collectively, the "Borrower"), and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation
(the "Lender").
RECITALS
R-1. AP-Anaheim LLC, a California limited liability company, AP-
Arlington LLC, a California limited liability company, AP-Atlantic LLC, a
California limited liability company, AP-Cityview LLC, a California limited
liability company, AP-Redlands LLC, a California limited liability company,
AP-Palmdale LLC, a California limited liability company, AP-Farrell Ramon
LLC, a California limited liability company, AP-Sierra LLC formerly known as
Abbey Sierra LLC, a California limited liability company, AP-Victoria LLC, a
California limited liability company, and AP-Victorville LLC, a Delaware
limited liability company (collectively, the "Original Borrowers") executed
and delivered a certain Revolving Credit Agreement dated August 28, 1997 (the
"Original Agreement"), whereby the Original Borrowers borrowed from Lender,
on a secured revolving credit basis, up to the maximum principal amount of
SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00).
R-2. AP-Edinger LLC, a California limited liability company, AP-
Glendora LLC, a California limited liability company and AP - Diamond Bar
LLC, a California limited liability company (collectively, the "Additional
Borrowers"), have, pursuant to certain Revolving Credit Assumption Agreements
dated December 10, 1997, December 24, 1997 and January 16, 1998,
respectively, assumed all obligations under the Original Agreement on a joint
and several basis with the Original Borrowers and each other Additional
Borrower (the Original Agreement, as assumed and/or modified, as the case may
be, by said three Revolving Credit Assumption Agreements, collectively, the
"Loan Agreement"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Loan Agreement.
R-3. The Borrower requests, and the Lender has agreed, to increase the
maximum outstanding principal amount available pursuant to the Loan Agreement
from SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00) to ONE HUNDRED
TWENTY MILLION AND NO/100 DOLLARS ($120,000,000.00) subject to and in
accordance with the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, as an inducement for Lender to increase the aggregate
principal amount available to Borrower pursuant to the Loan Agreement, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties do hereby agree as follows:
1. The Recitals set forth hereinabove are hereby incorporated by this
reference with the same force and effect as if fully set forth herein.
2. Lender's obligation to increase the maximum principal amount of
the Loan as contemplated hereunder is subject to the satisfaction of each of
the following conditions as determined by Lender. All documents,
instruments, certificates and opinions referred to below shall be
satisfactory in form and substance to Lender in its sole discretion:
(a) Guaranty Amendment. Guarantor shall have executed and
delivered to Lender an Amendment to and Reaffirmation of Guaranty with
respect to the guaranty previously executed and delivered by Guarantor in
connection with the Loan.
(b) Promissory Note Amendment. Borrower shall have executed and
delivered to Lender an Amendment to Promissory Note (the "Note Amendment")
pursuant to which, among other things, the principal amount of the Note shall
be increased to $120,000,000.
(c) First Amendment to Deed of Trust. Each Borrower shall have
executed and delivered to Lender a First Amendment to Deed of Trust, Security
Agreement, Assignment of Rents and Fixture Filing and First Amendment to
Assignment of Leases and Rents and Security Deposits (the "Security
Amendment") in recordable form with respect to the Mortgage and the
Assignment of Leases and Rents and Security Deposits encumbering the Subject
Property owned or leased by such Borrower pursuant to which, among other
things, the amounts secured by such documents shall be increased to
$120,000,000.
(d) Certificate as to Organizational Documents of Each Borrower.
Lender shall have received copies of amendments to the operating agreements
of each of the Borrowers reflecting the increase in the Loan contemplated
hereby as well as a certificate from the Managing Member of each Borrower
certifying that there have been no other changes to the organizational
documents of such Managing Member or the Borrower as previously delivered to
Lender as well as updated good standing certificates for each Borrower and
the Managing Member thereof.
(e) Resolutions of Each Borrower Approving the Transaction.
Lender shall have received resolutions duly adopted by the Members of each
Borrower approving the transactions contemplated hereby.
(f) Consents. Lender shall have received copies of any required
consents which are necessary in connection with the consummation of the
transactions contemplated hereby including, without limitation, the consent
and estoppel of any ground lessor in substantially the same form as delivered
at the original closing of the Loan.
(g) Fees and Expenses. Borrower shall have paid the legal fees
and expenses of Lender's Counsel and any local counsel retained by Lender in
connection with the negotiation, preparation, execution and delivery of this
Amendment and the other documents contemplated hereby as well as all other
costs and expenses in connection with the transactions contemplated
hereunder.
(h) Title Policies. Lender shall have received an endorsement
to each of the policies of title insurance previously delivered to Lender,
which endorsements shall without further exception unless approved by Lender
(i) update the date of each such policy to the date hereof and (ii) increase
the insured amount to $120,000,000.
(i) Opinion of Counsel. Lender shall have received an opinion
of counsel with respect to the transactions contemplated hereby and which
shall also serve to update the opinion delivered to Lender at the time of the
execution and delivery of the Original Agreement.
(j) No Default. No Event of Default or Default shall have
occurred and be continuing and no Default or Event of Default will occur as a
result of the consummation of any of the transactions contemplated hereby.
(k) Representations and Warranties. All representations and
warranties made by the Borrower and the Guarantor in any Loan Document shall
remain true, correct and complete in all material respects as of the date
hereof as if made on the date hereof.
(l) Participation. Lender shall have entered into an amendment
of the Loan Participation Agreement with Wellsford Real Properties, Inc. (the
"Participant") dated August 28, 1997 pursuant to which the Participant shall
have consented to the increase in the Loan contemplated hereunder and agreed
to participate in the Loan, as increased, on the same terms and conditions as
currently in effect.
(m) Other Documents. Lender shall have received such other
documents, instruments, certificates and assurances relating to the
transactions contemplated hereby as Lender may reasonably request.
3. References in the Loan Agreement to "$70,000,000" ,
"$70,000,000.00" or to "SEVENTY MILLION AND NO/100 DOLLARS ($70,000,000.00)"
set forth on the cover page thereof, in the first recital thereof, in the
definition of "Commitment" set forth in Section 1.01 thereof, in Section 5.02
thereof and in Section 8.25 thereof are hereby deleted and are hereby
replaced by, respectively, "$120,000,000", $120,000,000.00" or "ONE HUNDRED
TWENTY MILLION AND NO/100 DOLLARS ($120,000,000.00)".
4. The definition of the term "Note" set forth in Section 1.01 is
hereby deleted in its entirety and the following definition is hereby
substituted therefor:
"Note" means that certain Promissory Note dated August 28, 1997
executed by the Original Borrowers in the original maximum
principal amount of $70,000,000 as assumed and/or modified by
Promissory Note Assumption Agreements dated December 10, 1997,
December 24, 1997 and January 16, 1998, executed by AP-Edinger
LLC, a California limited liability company, AP-Glendora LLC, a
California limited liability company and AP - Diamond Bar LLC, a
California limited liability company, respectively, as further
modified and increased to $120,000,000 pursuant to an Amendment to
Promissory Note between Borrower and Lender dated as of April _,
1998, as the same may be further modified, assumed or supplemented
from time to time.
5. Section 2.01(a) of the Loan Agreement is hereby modified by
deleting the figure "$80,000,000" as it appears therein and replacing it with
the figure "$130,000,000".
6. The last line of Section 3.01(b) of the Loan Agreement is hereby
modified by deleting the phrase "Three Hundred Fifty Thousand Dollars
($350,000.00)" and replacing it with the phrase "Six Hundred Thousand Dollars
($600,000.00)".
7. Each Borrower hereby reaffirms all of its covenants and
obligations under the Loan Agreement as modified hereby. Each of the
Borrowers represents and warrants to Lender that all of the representations
and warranties contained in the Loan Agreement made by such Borrower remain
true and correct in all material respects as of the date hereof as if made on
the date hereof and are true and correct with respect to this Amendment, the
Note Amendment and the Security Amendment. Each Borrower acknowledges and
agrees that it has no offsets, counterclaims or defenses to any of its
obligations under the Loan Agreement as modified hereby.
8. Except as modified hereby, the Loan Agreement remains unmodified
and in full force and effect.
9. This Amendment may be executed in any number of counterparts, all
of which, when taken together, shall constitute but one and the same
instrument.
[Signatures Appear on Following Page]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the day and year first hereinabove written.
BORROWER:
AP - DIAMOND BAR LLC, a California limited
liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
______________________________
Name:Donald G. Abbey
Title:President
AP - EDINGER LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - GLENDORA LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
[Signatures Continue on Following Page]
AP - ANAHEIM LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - ARLINGTON LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - ATLANTIC LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - CITYVIEW LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
[Signatures Continue on Following Page]
AP - REDLANDS LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - PALMDALE LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - FARRELL RAMON LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - SIERRA LLC (formerly known as Abbey
Sierra LLC), a California limited liability
company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
[Signatures Continue on Following Page]
AP - VICTORIA LLC,
a California limited liability company
By: Abbey Investments, Inc., a
California corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
AP - VICTORVILLE LLC,
a Delaware limited liability company
By: DA Investments Properties, Inc.,
a Delaware corporation, its
Manager
By:/s/ Donald G. Abbey
_____________________________
Name:Donald G. Abbey
Title:President
LENDER:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:/s/ Bernard J. Costello
___________________________________
Name: Bernard J. Costello
Title: Vice President
By:/s/ E. Thornton
___________________________________
Name: E. Thornton
Title: Vice President
SCHEDULE A
Borrower Entities
1. AP - DIAMOND BAR LLC, a California limited liability company
2. AP - EDINGER LLC, a California limited liability company
3. AP - GLENDORA LLC, a California limited liability company
4. AP - ANAHEIM LLC, a California limited liability company
5. AP - ARLINGTON LLC, a California limited liability company
6. AP - ATLANTIC LLC, a California limited liability company
7. AP - CITYVIEW LLC, a California limited liability company
8. AP - REDLANDS LLC, a California limited liability company
9. AP - PALMDALE LLC, a California limited liability company
10. AP - FARRELL RAMON LLC, a California limited liability company
11. AP - SIERRA LLC (formerly known as Abbey Sierra LLC), a California
limited liability company
12. AP - VICTORIA LLC, a California limited liability company
13. AP - VICTORVILLE LLC, a Delaware limited liability company