AMENDED AND RESTATED CASH COLLATERAL AGREEMENT
THIS AMENDED AND RESTATED CASH COLLATERAL AGREEMENT (this "Agreement"),
dated as of July 16th, 1998, by and among WELLSFORD/WHITEHALL HOLDINGS,
L.L.C., a Delaware limited liability company ("Borrower"), WASH MANAGER
L.L.C., a Delaware limited liability company ("Manager"), WELLS AVENUE
HOLDINGS L.L.C., a Delaware limited liability company ("Member"; the
Borrower, Manager and Member are sometimes hereinafter referred to as the
"Borrower Parties" ), and BANKBOSTON, N.A., a national banking association
("BKB") as Agent for itself and the other Banks from time to time party to
the Credit Agreement (as hereinafter defined) (BKB, in its capacity as Agent,
is hereinafter referred to as "Agent").
W I T N E S S E T H:
WHEREAS, Wellsford/Whitehall Properties, L.L.C. ("WWP"), BKB, the other
Banks a party thereto and Agent entered into that certain Revolving Credit
Agreement dated December 15, 1997 (the "Original Credit Agreement"); and
WHEREAS, WWP has merged with and into Borrower, with Borrower being the
surviving entity, and pursuant thereto all of the assets and liabilities of
WWP have been transferred to and assumed by Borrower; and
WHEREAS, the Banks and the Agent have consented to such merger and
transfer of assets and liabilities; and
WHEREAS, Wells Avenue Senior Holdings LLC (the "Property Owner") is the
owner of the "Mezzanine Property" (as defined in the Credit Agreement); and
WHEREAS, Manager and Member are the sole members of the Property Owner;
and
WHEREAS, Borrower is the sole member of Member; and
WHEREAS, Borrower, BKB, the other Banks a party thereto and Agent have
entered into that certain First Amended and Restated Loan Agreement dated of
even date herewith (as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified or restated, the "Credit
Agreement"), which in part amends and restates the Original Credit Agreement,
and pursuant to which the Banks have agreed to provide a loan to Borrower of
up to $300,000,000.00 (the "Loan"), which Loan is evidenced by those certain
Notes made by Borrower to the order of the Banks in the aggregate principal
face amount of $300,000,000.00 (such Notes, together with such other Notes as
may be issued pursuant to the Credit Agreement, as the same may be varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified or
restated, are hereinafter referred to collectively as the "Note"); and
WHEREAS, WWP, Manager, Member and Agent have entered into that certain
Cash Collateral Agreement dated as of May 15, 1998 (the "Original Cash
Collateral Agreement"); and
WHEREAS, in connection with the execution of the Credit Agreement, the
Borrower and the Agent desire to amend and restate the Original Cash
Collateral Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
agreements set forth hereinbelow, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged, and as a material inducement to the Banks and Agent to advance
a portion of the Loan to Borrower relating to the Mezzanine Property, the
parties hereto amend and restate the Original Cash Collateral Agreement in
its entirety and covenant and agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement, but which
are not otherwise expressly defined in this Agreement, shall have the
respective meanings given thereto in the Credit Agreement. In addition, the
following terms shall have the following meanings:
Accounts Depository Bank: Such bank or institution as may now or
hereafter hold funds pursuant to the accounts and sub-accounts created under
the Mezzanine Mortgage Loan Agreement or the Deposit Account Agreement.
Clearing Account. See Paragraph 4(e).
Collateral: See Paragraph 2.
Deposit Account: The "Deposit Account" as defined in the Mezzanine
Mortgage Loan Agreement.
Event of Default: See Paragraph 6.
Excess Property Income. All funds or other amounts from time to
time deposited in or credited to the Property Owner's Subaccount or are
otherwise distributed, paid or released to Property Owner pursuant to the
Mezzanine Mortgage Loan Documents.
Instruction Letter: As defined in the Assignment of Interests.
Property Owner's Subaccount: The subaccount of the Deposit Account
referred to as the "Borrower's Subaccount" in the Deposit Account Agreement.
Rents. As defined in the Mezzanine Mortgage Loan Agreement.
2. Security for Obligations. To secure the full and punctual payment
and performance by the Borrower of all duties, responsibilities and
obligations under this Agreement, the Credit Agreement, the Note and the
other Loan Documents (such duties, responsibilities and obligations are
hereinafter referred to as the "Obligations"), Borrower hereby sells,
assigns, conveys, grants, pledges, hypothecates and transfers to Agent a
first-in-lien-priority continuing security interest in and to the following
property of Borrower, in each case whether certificated or uncertificated,
whether now owned or existing or hereafter acquired or arising and regardless
of where located (all of the same, collectively, the "Collateral"):
(a) all right, title and interest of Borrower in and to any
and all Excess Property Income from time to time, now or hereafter available
in the Deposit Account or otherwise and required or permitted, by the terms
of the Mezzanine Mortgage Loan Documents, to be disbursed to or on behalf of
Property Owner or is required, by the terms of the Instruction Letter, this
Agreement or the other Loan Documents, to be paid by the Mezzanine Mortgagee,
the Account Depository Bank or any other Person to Agent, and all rights of
the Borrower to receive such Excess Property Income under the Mezzanine
Mortgage Loan Documents or otherwise;
(b) all right, title and interest of Borrower in and to cash,
checks, drafts, certificates, passbooks, instruments and other amounts, if
any, from time to time (whether by physical possession, book entry or
otherwise) evidencing the Excess Property Income;
(c) all right, title and interest of Borrower in and to all
interest, dividends, cash, instruments and other property from time to time
held (whether by physical possession, book entry or otherwise) in, received,
receivable, or otherwise payable in respect of, or in exchange for, any or
all of the foregoing;
(d) all right, title and interest of Borrower in and to all
accounts, contract rights, general intangibles and other rights and interests
pertaining to any of the foregoing, all replacements, substitutions, renewals
or proceeds of any of the foregoing, and all powers, options, rights,
privileges and immunities pertaining thereto (including the right to make
withdrawals therefrom); and
(e) to the extent not covered by clauses (a), (b), (c) or
(d), above, all proceeds of any or all of the foregoing.
3. Collection of Collateral.
(a) It is acknowledged and agreed by the parties hereto that Agent
shall have sole and exclusive possession of the Collateral and that this
Agreement constitutes a present, absolute and current assignment of all the
Collateral and is effective upon the execution and delivery hereof. Payments
under or with respect to the Collateral shall be made as follows:
(i) Except as otherwise specifically provided in this
Paragraph 3, Borrower shall have no right to receive payments made
under or with respect to the Collateral (including without
limitation any Collateral from or relating to any sale, transfer,
assignment, conveyance, option or other disposition of, or any
pledge, mortgage, encumbrance, financing or refinancing of, or
casualty to or condemnation of, any of the Collateral, the
Mezzanine Collateral or the Mezzanine Property regardless of
whether such event is permitted under the terms of the Loan
Documents), and all such payments shall be delivered directly by
the Property Owner to Agent for application by Agent in
satisfaction of the Obligations in such order as Agent in its sole
and absolute discretion shall determine.
(ii) Except as otherwise specifically provided in this
Paragraph 3, if Borrower shall receive any payments made under or
with respect to the Collateral (including without limitation any
Collateral from or relating to any sale, transfer, assignment,
conveyance, option or other disposition of, or any pledge,
mortgage, encumbrance, financing or refinancing of, or casualty to
or condemnation of, any of the Collateral, the Mezzanine Collateral
or the Mezzanine Property regardless of whether such event is
permitted under the terms of the Loan Documents), Borrower shall
hold all such payments in trust for Agent, will not co-mingle such
payments with other funds of Borrower, and will immediately pay and
deliver in kind, all such payments directly to Agent (with such
endorsements and assignments as may be necessary to transfer title
to Agent) for application by Agent in satisfaction of the
Obligations in such order as Agent in its sole and absolute
discretion shall determine.
(b) Each of Borrower, Manager and Member shall cause the Property
Owner, the Manager and the Member promptly to distribute all net proceeds of
the sale, transfer, assignment, conveyance, option or other disposition of,
or any mortgage, hypothecation, encumbrance, financing or refinancing of, or
casualty to or condemnation of, any of its assets or properties, and any and
all other Distributions distributable or payable by the Property Owner, the
Manager or the Member or any member thereof under the terms of the Property
Owner Organizational Agreements, the Manager Organizational Agreements or the
Member Organizational Agreements, as applicable.
(c) Each of Borrower, Manager and Member hereby irrevocably
designates and appoints Agent its true and lawful attorney-in-fact, which
appointment is coupled with an interest, either in the name of Agent, or in
the name of Borrower, Manager or Member, as applicable, at Borrower's sole
cost and expense, and to take any or all of the following actions:
(i) to ask, demand, sue for, attach, levy, settle,
compromise, collect, compound, recover, receive and give receipt
and acquittances for any and all Collateral and to take any and all
actions as Agent may deem necessary or desirable in order to
realize upon the Collateral, or any portion thereof, including,
without limitation, making any statements and doing and taking any
actions on behalf of such Person which are otherwise required of
such Person under the terms of any agreement as conditions
precedent to the payment of the Collateral, and the right and power
to receive, endorse, assign and deliver, in the name of such Person
any checks, notes, drafts, instruments or other evidences of
payment received in payment of or on account of all or any portion
of the Collateral, and each of Borrower, Manager and Member hereby
waives presentment, demand, protest and notice of demand, protest
and non-payment of any instrument so endorsed; and
(ii) to institute one or more actions against the
Property Owner, any member thereof or any other Person in
connection with the collection of the Collateral to prosecute to
judgment, settle or dismiss any such actions, and to make any
compromise or settlement deemed desirable, in Agent's sole and
absolute discretion, with respect to such Collateral to extend the
time of payment, arrange for payment in installments or otherwise
modify the terms of any agreements with respect to the Collateral
or release the Property Owner, any member thereof or any other
Person from their respective obligations to pay any Collateral,
without incurring responsibility to, or affecting any liability of,
Borrower under any such agreements;
it being specifically understood and agreed, however, that Agent shall not be
obligated in any manner whatsoever to give any notices of default (except as
may be specifically required herein or the other Loan Documents) or to
exercise any such power or authority or be in any way responsible for the
preservation, maintenance, collection of or realizing upon the Collateral, or
any portion thereof, or any of Borrower's rights therein. Notwithstanding
anything in this Paragraph 3 to the contrary, provided no Event of Default
has occurred and is continuing, Borrower shall have a license (revocable upon
the occurrence of an Event of Default) to receive and retain Excess Property
Income attributable to (A) rents, issues and profits paid under Mezzanine
Leases not more than one (1) month in advance, (B) excess proceeds from a
sale of a Mezzanine Property that has been released in accordance with
Section 5.3(b) of the Credit Agreement, (C) proceeds from a casualty
permitted to be paid to Borrower pursuant to Section 7.7(k) of the Credit
Agreement, (D) excess amounts released from the reserves maintained under
Sections 7.2, 7.3, 7.4 and 7.5 of the Mezzanine Mortgage Loan Agreement, and
(E) rebates or refunds of property taxes paid with respect to the Mezzanine
Property. The foregoing appointment is irrevocable and continuing and any
such rights, powers and privileges shall be exclusive in Agent, its
successors and assigns until this Agreement terminates as provided in
Paragraph 12, below.
(d) Notwithstanding anything contained in this Agreement or any of
the other Loan Documents to the contrary, all Excess Property Income released
to Borrower in accordance with the terms of the Loan Documents (including
without limitation the terms of this Paragraph 3) (i) shall be the property
of Borrower, (ii) shall not constitute a part of the Collateral and (iii) may
be further distributed by Borrower to its members or otherwise pursuant to
the terms of its organizational agreements.
4. Warranties and Covenants. Borrower hereby warrants and represents
to, and covenants and agrees with, Agent as follows:
(a) Borrower is and shall remain the sole, lawful, beneficial
and record owner of the Collateral, free and clear of all liens,
restrictions, claims, pledges, encumbrances, charges, claims of third parties
and rights of set-off or recoupment whatsoever (other than those in favor of
Agent hereunder), and Borrower has the full and complete right, power and
authority to create a security interest in the Collateral in favor of Agent,
in accordance with the terms and provisions of this Agreement.
(b) This Agreement creates a valid and binding first-in-lien
priority pledge and assignment of and security interest in the Collateral
securing the payment and performance of the Obligations, and upon the filing
of UCC Financing Statements in the office of the Register of the City of New
York, New York County, the New York Secretary of State, the City of Boston,
the City of Newton and the Massachusetts Secretary of State, all filings and
other actions necessary to perfect and protect such pledge and security
interests shall have been duly made and taken. The Borrower has not
performed and will not perform any acts which might prevent Agent from
enforcing any of the terms and conditions of this Agreement or which would
limit Agent in any such enforcement.
(c) The taxpayer identification number of the Borrower is 13-
3962862.
(d) For the purposes of Article 9-401 of the New York Uniform
Commercial Code, the principal place of business of Borrower is in New York
County, New York. If Borrower has more than one place of business in New
York, its chief executive office is located in New York County, New York.
In order to perfect the pledge and security interests granted herein against
Borrower to the extent the same can be perfected by filing a financing
statement, UCC Financing Statements must be filed with the Secretary of State
of New York, the office of the Register of the City of New York, New York
County, the City of Boston, the City of Newton and the Massachusetts
Secretary of State.
(e) The Property Owner, the Mezzanine Mortgagee and the Account
Depository Bank have executed and delivered the Mezzanine Mortgage Loan
Agreement and the Deposit Account Agreement, as applicable, and the Central
Account and the other sub-accounts described in the Mezzanine Mortgage Loan
Agreement have been created. Other than the bank account described on
Exhibit "A" hereto (the "Clearing Account"), there are no other accounts
maintained by any of the Borrower Parties, the Property Owner or any manager
of the Mezzanine Property for the collection of Rents with respect to the
ownership and operation of the Mezzanine Property and that, so long as any of
the Obligations shall be outstanding or any Bank shall have an obligation to
advance proceeds of the Loan to Borrower, none of the Borrower Parties
shall, nor shall any of the Borrower Parties permit the Property Owner or any
manager of the Mezzanine Property to, open any account for the collection of
Rents with respect to the Mezzanine Property other than those created
pursuant to the Mezzanine Mortgage Loan Agreement and shall deposit all Rents
in the Deposit Account as required therein.
5. General Covenants. The Borrower covenants and agrees that, so long
as any of the Obligations are outstanding or have not been paid or performed
or any Bank shall have an obligation to advance proceeds of the Loan to
Borrower:
(a) Borrower, without the prior written consent of Agent,
which consent may be withheld by Agent in its sole and absolute discretion,
shall not directly, indirectly or by operation of law sell, transfer, assign,
dispose of, pledge, convey, option, mortgage, hypothecate or encumber any of
the Collateral.
(b) Borrower shall at all times defend the Collateral against
all claims and demands of all persons at any time claiming any interest in
the Collateral adverse to Agent's interest in the Collateral as granted
hereunder.
(c) Borrower shall pay all taxes and other charges imposed against
the Collateral, shall not use the Collateral illegally, and shall not suffer
to exist any loss, theft, damage or destruction of the Collateral and shall
suffer to exist no levy, seizure or attachment of the Collateral.
(d) Borrower authorizes Agent, at the expense of Borrower, to
execute and file any financing statement or statements reasonably deemed
necessary by Agent to perfect its security interest in any of the Collateral.
Any such financing statement may be signed by Agent alone. Borrower will
sign and deliver any financing statements and other documents, and perform
such other acts as Agent reasonably may deem necessary or desirable from time
to time to establish and maintain in favor of Agent, valid and perfected
security interests in the Collateral, free of all other liens, encumbrances,
security interests and claims other than as permitted by the terms of this
Agreement. Borrower shall also furnish to Agent such evidence as it
reasonably may require to confirm the value of the Collateral, and shall do
anything else Agent may reasonably require from time to time to establish a
valid security interest in and to further protect and perfect its security
interest in the Collateral.
(e) Except for those items of the Collateral that are delivered to
Agent as provided herein, all records of Borrower relative to the Collateral
are and will be kept either at the office of Borrower located in New York
County, New York or at the offices of Borrower's managing agent in Newton,
Middlesex County, Massachusetts. Borrower shall give Agent not fewer than
thirty (30) days prior written notice of any proposed change in Borrower's
name and any proposed change in the location of such records, and Borrower
will not, without the prior written consent of Agent, move such records to
a location outside of New York County, New York or Newton, Middlesex County,
Massachusetts or keep duplicate records with respect to the Collateral at any
address outside such county or township, as the case may be. Nothing
contained in this subparagraph shall be construed so as to prevent Borrower
from keeping material abstracted from the books and records described herein
at any of its offices as necessity or convenience dictates.
(f) The Borrower shall cause the Property Owner and any
manager of the Mezzanine Property to deposit all amounts into the Deposit
Account that are required to be deposited therein pursuant to the Mezzanine
Mortgage Loan Agreement and the Deposit Account Agreement and to utilize such
funds in accordance with and as and to the extent required by the Mezzanine
Mortgage Loan Agreement and the Deposit Account Agreement. The Borrower
shall promptly notify the Agent of any change in the Account Depository Bank,
and upon the request of the Agent, shall cause such new Account Depository
Bank to execute and deliver to Agent an Instruction Letter in substantially
the form delivered to Agent on the date hereof.
(g) By execution hereof, the Borrower, Manager and Member
hereby irrevocably direct that the Property Owner, the Manager and Member
cause all Excess Property Income to be paid to Agent hereunder, and the
Borrower, Manager and Member hereby agree for the benefit of the Property
Owner, the Manager and Member that all such payments actually received by
Agent pursuant thereto shall be deemed payments to Manager and Member by the
Property Owner, payments to Member by Manager, and payments to Borrower by
Member. By execution hereof, Property Owner, the Manager and Member
acknowledges such direction and the terms of this Agreement. By execution
hereof, Property Owner, Manager and Member acknowledge and agree that neither
Property Owner, Manager, Member nor any other Person has any right, title or
interest in and to any amounts now or hereafter deposited in the Property
Owner's Subaccount or any other Excess Property Income or any interest earned
thereon and that all such amounts are the property of the Borrower, subject
to the security interests in favor of the Agent hereunder.
(h) The Property Owner and Agent, by their execution of the
Instruction Letter and by their delivery thereof to the Mezzanine Mortgagee
and the Account Depository Bank, have irrevocably directed and authorized the
Mezzanine Mortgagee and the Account Depository Bank, and hereby reiterate and
reaffirm such direction and authorization to the Mezzanine Mortgagee and the
Account Depository Bank, when and as required from time to time by the
Mezzanine Mortgage Loan Documents and the Instruction Letter upon notice from
Agent to transfer immediately from the Deposit Account to Agent any and all
Excess Property Income remaining in the Deposit Account which pursuant to the
terms of the Mezzanine Mortgage Loan Documents is required to be disbursed to
Property Owner or the manager of the Property, and any and all other amounts
which are required pursuant to the Mezzanine Mortgage Loan Documents to be
disbursed to Property Owner or the manager of the Mezzanine Property as and
when permitted under the terms of the Mezzanine Mortgage Loan Documents.
Agent shall not deliver a further notice to the Mezzanine Mortgagee and the
Account Depository Bank pursuant to the Instruction Letter demanding that all
Excess Property Income be paid to Agent until the occurrence of an Event of
Default. Subject to the terms of this Agreement and the Assignment of
Interests, Borrower shall further cause the Property Owner or any manager of
the Mezzanine Property to pay to the Agent any and all Excess Property Income
or any other amounts which are required pursuant to the Mezzanine Mortgage
Loan Documents to be disbursed to the Property Owner or the manager of the
Mezzanine Property in the event that such amounts are disbursed to such
Person.
6. Events of Default. An Event of Default shall exist hereunder upon
the occurrence of any of the following:
(a) Any warranty, representation or statement made by or on behalf
of the Borrower in this Agreement proves untrue or misleading in any material
respect upon the date when made or deemed to have been made or repeated; or
(b) Borrower shall fail to duly and fully comply with any
covenant, condition or agreement in Paragraphs 4(e), 5(a), 5(f), 5(g) or 5(h)
of this Agreement (provided that as to a failure to comply with paragraphs
5(f), 5(g) or 5(h) only, the same is not cured within five (5) days following
receipt of notice of such default); or
(c) Borrower shall fail to duly and fully comply with any other
covenant, condition or agreement of this Agreement (other than those
specified above in this Paragraph 6) and the same is not cured within thirty
(30) days following receipt of written notice of such default; or
(d) The occurrence of an Event of Default under any of the Loan
Documents.
7. Remedies.
(a) Upon the occurrence and during the continuance of an Event of
Default, Agent, without limitation, may:
(i) without notice to Borrower, except as required by law,
and at any time or from time to time, charge, set-off, and otherwise apply
all or any part of the Collateral against the Obligations or any part
thereof;
(ii) in its sole discretion, at any time and from time to
time, exercise any and all rights and remedies available to it under this
Agreement, and/or as a secured party under the Uniform Commercial Code; and
(iii) demand, collect, take possession of, receipt for,
settle, compromise, adjust, sue for, foreclose, or otherwise realize upon
the Collateral (or any portion thereof) as Agent may determine in its sole
discretion.
(b) The Borrower hereby expressly waives, to the fullest extent
permitted by law, presentment, demand, protest or any notice of any kind in
connection with this Agreement or the Collateral except as otherwise
specifically provided herein or in any of the Loan Documents. Agent may take
any action deemed by Agent to be necessary or appropriate to the enforcement
of the rights and remedies of Agent under this Agreement, and/or under any of
the other Loan Documents. The remedies of Agent shall include, without
limitation, all rights and remedies specified this Agreement and the other
Loan Documents, all remedies of Agent under applicable general or statutory
law, and the remedies of a secured party under the Uniform Commercial Code as
enacted in the State of New York, regardless of whether the Uniform
Commercial Code has been enacted or enacted in that form in any other
jurisdiction in which such right or remedy is asserted. In addition to such
other remedies as may exist from time to time, whether by way of set-off,
banker's lien, consensual security interest or otherwise, upon the occurrence
and during the continuance of an Event of Default, Agent is authorized at any
time and from time to time, without notice to or demand upon the Borrower
(any such notice or demand being expressly waived by the Borrower) to charge
any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by Agent to
or for the credit of or the account of the Borrower against any and all of
the Obligations, irrespective of whether or not Agent shall have made any
demand for payment and although the Obligations may be unmatured. Any notice
required by law, including, but not limited to, notice of the intended
disposition of all or any portion of the Collateral, shall be reasonable and
properly given in the manner prescribed for the giving of notice herein, and,
in the case of any notice of disposition, if given at least ten (10) days
prior to such disposition. Agent may require the Borrower to assemble the
Collateral and make it available to Agent at any place to be designated by
Agent which is reasonably convenient to the parties hereto. It is expressly
understood and agreed that Agent shall be entitled to dispose of the
Collateral at any public or private sale, without recourse to judicial
proceedings and without either demand, appraisement, advertisement or notice
of any kind, all of which are expressly waived, and that Agent shall be
entitled to bid and purchase at any such sale. In the event that Agent is
the successful bidder at any public or private sale of any note or other
document or instrument evidencing Borrower's right to receive the Collateral,
Agent shall be entitled to credit the amount bid by Agent against the
obligations evidenced by such note, document or instrument rather than the
obligations evidenced by the Note. To the extent the Collateral consists of
marketable securities, Agent shall not be obligated to sell such securities
for the highest price obtainable, but shall sell them at the market price
available on the date of sale. Agent shall not be obligated to make any sale
of the Collateral if it shall determine not to do so regardless of the fact
that notice of sale of the Collateral may have been given. Agent may,
without notice or publication, adjourn any public sale from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. Each such purchaser at any such sale shall hold the Collateral
sold absolutely free from claim or right on the part of Borrower. In the
event that any consent, approval or authorization of any governmental agency
or commission will be necessary to effectuate any such sale or sales,
Borrower shall execute all such applications or other instruments as Agent
may deem reasonably necessary to obtain such consent, approval or
authorization. Agent may notify any account debtor or obligor with respect
to the Collateral to make payment directly to Agent, and may demand, collect,
receipt for, settle, compromise, adjust, sue for, foreclose or realize upon
the Collateral as Agent may determine whether or not the Obligations or the
Collateral are due, and for the purpose of realizing Agent's rights therein,
Agent may receive, open and dispose of mail addressed to Borrower and endorse
notes, checks, drafts, money orders, documents of title or other evidences of
payment, shipment or storage or any other form of Collateral on behalf and in
the name of Borrower, as its attorney-in-fact. In addition, Borrower hereby
irrevocably designates and appoints Agent its true and lawful attorney-in-
fact either in the name of Agent or Borrower to (i) sign Borrower's name on
any Collateral, drafts against account debtors, assignments, any proof of
claim in any bankruptcy or other insolvency proceeding involving any account
debtor, any notice of lien, claim of lien or assignment or satisfaction of
lien, or on any financing statement or continuation statement under the
Uniform Commercial Code relating to the Collateral; (ii) send verifications
of accounts receivable to any account debtor; and (iii) in connection with a
transfer of the Collateral as described above, sign in Borrower's name any
documents necessary to transfer title to the Collateral to Agent or any third
party. All acts of said power of attorney are hereby ratified and approved
and Agent shall not be liable for any mistake of law or fact made in
connection therewith. This power of attorney is coupled with an interest and
shall be irrevocable so long as any amounts remain unpaid on any of the
Obligations. All remedies of Agent shall be cumulative to the full extent
provided by law, all without liability except to account for property
actually received, but the Agent shall have no duty to exercise such rights
and shall not be responsible for any failure to do so or delay in so doing.
Pursuit by Agent of certain judicial or other remedies shall not abate nor
bar other remedies with respect to the Obligations or to other portions of
the Collateral. Agent may exercise its rights to the Collateral without
resorting or regard to other collateral or sources of security or
reimbursement for the Obligations.
(c) If a Borrower Party fails to perform any agreement or covenant
contained in this Agreement beyond any applicable period for notice and cure,
Agent may itself perform, or cause to be performed, any agreement or covenant
of such Borrower Party contained in this Agreement which such Person shall
fail to perform, and the cost of such performance, together with any
reasonable expenses, including reasonable attorneys' fees actually incurred
(including reasonable attorneys' fees incurred in any appeal) by Agent in
connection therewith, shall be payable by Borrower upon demand and shall
constitute a part of the Obligations and shall bear interest at the rate for
overdue amounts as set forth in the Credit Agreement. Notwithstanding the
Agent's right to perform, at its sole discretion, certain obligations of the
Borrower Parties, Agent's exercise of any of its rights or remedies
hereunder, under any of the other Loan Documents, or otherwise at law or in
equity, Agent shall not be deemed to be a mortgagee-in-possession, nor shall
Agent be subject to any liability with respect to the Mezzanine Property, the
Collateral, or otherwise based upon any claim of lender liability.
(d) Whether or not an Event of Default has occurred and whether or
not Agent is the absolute owner of the Collateral, Agent may take such action
as Agent may deem necessary to protect the Collateral or its security
interest therein, Agent being hereby authorized to pay, purchase, contest and
compromise any encumbrance, charge or lien which in the judgment of Agent
appears to be prior or superior to its security interest, and in exercising
any such powers and authority to pay necessary expenses, employ counsel and
pay reasonable attorney's fees. Any such advances made or expenses incurred
by Agent shall be deemed advanced under the Loan Documents, shall increase
the indebtedness evidenced and secured thereby, shall be payable upon demand
and shall bear interest at the rate for overdue payments set forth in the
Credit Agreement.
8. Duties of Agent. The powers conferred on Agent hereunder are
solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Agent's duty with reference to the
Collateral shall be solely to use slight care in the custody and preservation
of the Collateral, which shall not include any steps necessary to preserve
rights against prior parties. Agent shall have no responsibility or
liability for the collection of any Collateral or by reason of any
invalidity, lack of value or uncollectability of any of the payments received
by it.
9. Indemnification.
(a) It is specifically understood and agreed that this Agreement
shall not operate to place any responsibility or obligation whatsoever upon
Agent, or cause Agent to be, or to be deemed to be, a member in the Property
Owner, the Manager or the Member and that in accepting this Agreement, Agent
neither assumes nor agrees to perform at any time whatsoever any obligation
or duty of Borrower relating to the Collateral or any other mortgage,
indenture, contract, agreement or instrument to which the Property Owner, the
Manager or the Member is a party or to which it is subject, all of which
obligations and duties shall be and remain with and upon Borrower; provided,
however, that Borrower shall not be liable for the performance of any
liabilities or duties under the Organizational Agreements of Member, Manager
or Property Owner which may result from written amendments thereof made by
Agent after the occurrence of an Event of Default.
(b) Borrower agrees to indemnify, defend and hold Agent and the
Banks harmless from and against any and all claims, expenses, losses and
liabilities growing out of or resulting from this Agreement (including,
without limitation, enforcement of this Agreement) or acts taken or omitted
by Agent hereunder or in connection herewith, except claims, expenses, losses
or liabilities resulting from Agent's or such Bank's gross negligence or
wilful misconduct.
(c) Borrower upon receipt of written demand shall pay to Agent the
amount of any and all reasonable expenses, including, without limitation, the
reasonable fees and disbursements of counsel actually incurred (including
those incurred in any appeal), and of any experts and agents, which Agent may
incur in connection with (i) the administration of this Agreement, (ii) the
sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of Agent hereunder, or
(iv) the failure by Borrower to perform or observe any of the provisions
hereof beyond any applicable period for notice and cure.
10. Security Interest Absolute. All rights of Agent, and the security
interests hereunder, and all of the obligations secured hereby, shall be
absolute and unconditional, irrespective of:
(a) Any lack of validity or enforceability of the Loan Documents
or any other agreement or instrument relating thereto;
(b) Any change in the time (including the extension of the
maturity date of the Note), manner or place of payment of, or in any other
term of, all or any of the Obligations or any other amendment or waiver of or
any consent to any departure from the Loan Documents;
(c) Any exchange, release or nonperfection of any other collateral
for the Obligations, or any release or amendment or waiver of or consent to
departure from any of the Loan Documents with respect to all or any part of
the Obligations; or
(d) Any other circumstance (other than payment of the Obligations
in full) that might otherwise constitute a defense available to, or a
discharge of, Borrower or any third party for the Obligations or any part
thereof.
11. Amendments and Waivers. No amendment or waiver of any provision of
this Agreement nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by Agent, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. No delay or omission of Agent to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be
a waiver of any such Event of Default, or acquiescence therein; and every
right, power and remedy given by this Agreement to Agent may be exercised
from time to time and as often as may be deemed expedient by Agent. Failure
on the part of Agent to complain of any act or failure to act which
constitutes an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Agent of Agent's rights hereunder
or impair any rights, powers or remedies consequent on any Event of Default.
Borrower hereby waives to the extent permitted by law all rights which
Borrower has or may have under and by virtue of the Uniform Commercial Code
as enacted in the State of New York, and any federal, state, county or
municipal statute, regulation, ordinance, Constitution or charter, now or
hereafter existing, similar in effect thereto providing any right of Borrower
to notice and to a judicial hearing prior to seizure by Agent of any of the
Collateral. Borrower hereby waives and renounces for itself, its heirs,
successors and assigns, presentment, demand, protest, advertisement or notice
of any kind (except for any notice required by law or the Loan Documents) and
all rights to the benefits of any statute of limitations and any moratorium,
reinstatement, marshaling, forbearance, valuation, stay, extension,
homestead, redemption and appraisement now provided or which may hereafter be
provided by the Constitution and laws of the United States and of any state
thereof, both as to itself and in and to all of its property, real and
personal, against the enforcement of this Agreement and the collection of any
of the Obligations.
12. Continuing Security Interest; Transfer of Note; Release of
Collateral. This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the
indefeasible payment in full of the Obligations and the termination of the
obligation of the Banks to make Loans to Borrower or the earlier termination
of the Assignment of Interests in accordance with its terms, (b) be binding
upon Borrower and its permitted successors and assigns, and (c) inure,
together with the rights and remedies of Agent hereunder, to the benefit of
Agent and the Banks and their respective successors, transferees and assigns.
Upon the indefeasible payment in full of the Obligations and the termination
of the obligation of the Banks to make Loans to Borrower or the earlier
termination of the Assignment of Interests in accordance with its terms, the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to Borrower; provided, however, that in the event
that a Mezzanine Property is released in accordance with the terms of the
Credit Agreement, this Assignment shall also terminate as to the Mezzanine
Property so released. Upon any such termination, Agent will at Borrower's
expense execute and deliver to Borrower such documents as Borrower shall
reasonably request to evidence such termination and the release of any lien
created by this Agreement.
13. Modifications, Etc. Borrower hereby consents and agrees that Agent
and the Banks may at any time and from time to time, without notice to or
further consent from Borrower, either with or without consideration,
surrender any property or other security of any kind or nature whatsoever
held by it or by any person, firm or corporation on its behalf or for its
account, securing the Obligations; substitute for any Collateral so held by
it, other collateral of like kind; agree to modification of the terms of the
Loan Documents; extend or renew the Loan Documents for any period; grant
releases, compromises and indulgences with respect to the Loan Documents for
any period; grant releases, compromises and indulgences with respect to the
Loan Documents to any persons or entities now or hereafter liable thereunder
or hereunder; release any guarantor, endorser or any other Person liable with
respect to the Obligations; or take or fail to take any action of any type
whatsoever; and no such action which Agent shall take or fail to take in
connection with the Loan Documents, or any of them, or any security for the
payment of the Obligations or for the performance of any obligations or
undertakings of Borrower, nor any course of dealing with Borrower or any
other person, shall release Borrower's obligations hereunder, affect this
Agreement in any way or afford Borrower any recourse against Agent.
14. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK.
15. Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement shall be deemed to have been
properly given or served if given in the manner provided in the Credit
Agreement.
16. No Unwritten Agreements. THE WRITTEN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
17. Cash Collateral. In the event that the Borrower becomes the
subject of a proceeding under the Bankruptcy Code, the parties hereto agree
that the Collateral shall constitute "cash collateral" of Agent under Section
363 of the Bankruptcy Code.
18. Miscellaneous. Time is of the essence of this Agreement. Title or
captions of paragraphs hereof are for convenience only and neither limit nor
amplify the provisions hereof. If, for any circumstances whatsoever,
fulfillment of any provision of this Agreement shall involve transcending the
limit of validity presently prescribed by applicable law, the obligation to
be fulfilled shall be reduced to the limit of such validity; and if any
clause or provision herein operates or would prospectively operate to
invalidate this Agreement, in whole or in part, then such clause or provision
only shall be held for naught, as though not herein contained, and the
remainder of this Agreement shall remain operative and in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AGENT:
BANKBOSTON, N.A., as Agent
By: /s/ Mark E. Basham
-------------------------------
Mark E. Basham, Managing Director
BORROWER:
WELLSFORD/WHITEHALL HOLDINGS, L.L.C., a
Delaware limited liability company, by its
managing member
By: Wellsford/Whitehall Properties II,
L.L.C., a Delaware limited liability
company, managing member
By: Wellsford Commercial Properties
Trust, a Maryland real estate
investment trust, its manager
By: /s/ Gregory F. Hughes
-------------------------------
Name: Gregory F. Hughes
Title: CFO & Treasurer
MEMBER:
WELLS AVENUE HOLDINGS L.L.C., a Delaware
limited liability company, by its sole member
By: Wellsford/Whitehall Holdings, L.L.C., a
Delaware limited liability company, its
managing member
By: Wellsford/Whitehall Properties II,
L.L.C., a Delaware limited liability
company, managing member
By: Wellsford Commercial Properties
Trust, a Maryland real estate
investment trust, manager
By: /s/ Gregory F. Hughes
-----------------------------
Name: Gregory F. Hughes
Title: CFO & Treasurer
MANAGER:
WASH MANAGER L.L.C., a Delaware limited
liability company, by its sole member
By: Wells Avenue Holdings L.L.C., a Delaware
limited liability company, by its sole
member
By: Wellsford/Whitehall Holdings, L.L.C.,
a Delaware limited liability company,
by its managing member
By: Wellsford/Whitehall Properties II,
L.L.C., a Delaware limited
liability company, by its managing
member
By: Wellsford Commercial Properties
Trust, a Maryland real estate
investment trust, manager
By: /s/ Gregory F. Hughes
-----------------------------
Name: Gregory F. Hughes
Title: CFO & Treasurer
Property Owner joins in the execution of this Agreement for the purposes of
acknowledging the provisions of Paragraphs 4(e), 5(g) and 5(h) above. By
acceptance of this Agreement, Agent acknowledges that a failure by Property
Owner to honor its agreements pursuant to this Agreement shall not give rise
to a monetary claim (whether in damages or otherwise) by Agent against
Property Owner.
WELLS AVENUE SENIOR HOLDINGS LLC, a
Massachusetts limited liability company, by its
managing member
By: WASH Manager L.L.C., a Delaware limited
liability company, by its sole member
By: Wells Avenue Holdings L.L.C., a
Delaware limited liability company,
by its sole member
By: Wellsford/Whitehall Holdings,
L.L.C., a Delaware limited
liability company, by its managing
member
By: Wellsford/Whitehall Properties
II, L.L.C., a Delaware limited
liability company, by its
managing member
By: Wellsford Commercial
Properties Trust, a Maryland
real estate investment
trust, manager
By: /s/ Gregory F. Hughes
---------------------------
Name: Gregory F. Hughes
Title: CFO & Treasurer
EXHIBIT "A"
CLEARING ACCOUNT
Account Name: Wells Avenue Senior Holdings LLC
c/o Saracen Companies
57 Wells Avenue
Newton, MA 02159
Account Number: 01-96-02642
ABA Number: 2113-70574