Exhibit 10.59
MARCH 2004 AMENDMENT TO THE
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
MARCH 2004 AMENDMENT TO THE LETTER OF CREDIT REIMBURSEMENT AGREEMENT
(this "Amendment"), dated as of March 11, 2004, among Palomino Park Public
Improvements Corporation, a Colorado nonprofit corporation (the "Bond Issuer"),
Wellsford Real Properties, Inc., a Maryland corporation ("WRP"), and Commerzbank
AG, acting through its New York Branch (the "Bank"). All capitalized terms
defined in the hereinafter defined Letter of Credit Agreement shall have the
same meaning when used herein unless otherwise defined herein.
W I T N E S S E T H:
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WHEREAS, the Bond Issuer, WRP and the Bank are parties to a Letter of
Credit Reimbursement Agreement dated as of June 16, 2000 (as in effect on the
date hereof, the "Letter of Credit Agreement"); and
WHEREAS, the Bond Issuer, WRP and the Bank desire to amend the Letter of
Credit Agreement as hereinafter provided;
and
WHEREAS, ERP Operating Limited Partnership, an Illinois limited
partnership, has guaranteed certain obligations of the Account Parties incurred
or to be incurred pursuant to the Letter of Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Amendment to the Letter of Credit Agreement. Section 6.17(1) of the
Letter of Credit Agreement is hereby amended its entirety to the following:
(1) Minimum Shareholder's Equity. WRP will not, at the end of any
fiscal quarter, permit its Shareholder's Equity to be less than
$120,000,000 (the "Shareholder's Equity Threshold").
2. Representations and Warranties. In order to induce the Bank to
enter into this Amendment, each of the Bond Issuer and WRP hereby
represents and warrants that:
(a) no Default or Event of Default exists or will exist as of the date
hereof or after giving effect to this Amendment; and
(b) as of the date hereof, and after giving effect to this Amendment,
all representations, warranties and agreements of the Bond Issuer and WRP
contained in the Letter of Credit Agreement will be true and correct in all
material respects.
3. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF
LAW PROVISIONS THEREOF.
4. Effectiveness. This Amendment shall be effective upon execution of
this Amendment by the parties hereto and payment by WRP to the Bank of an
amendment fee of $10,000.
5. Agreement Not Otherwise Amended. This Amendment is limited
precisely as written and shall not be deemed to be an amendment, consent,
waiver or modification of any other term or condition of the Letter of
Credit Agreement or any of the instruments or agreements referred to
therein, or prejudice any right or rights which the Bank may now have or
may have in the future under or in connection with the Letter of Credit
Agreement or any of the instruments or agreements referred to therein.
Except as expressly modified hereby, the terms and provisions of the Letter
of Credit Agreement shall continue in full force and effect. Whenever the
Letter of Credit Agreement is referred to in the Letter of Credit Agreement
or any of the instruments, agreements or other documents or papers executed
and delivered in connection therewith (including, without limitation, the
Letter of Credit or the Guaranty), it shall be deemed to be a reference to
the Letter of Credit Agreement as modified hereby.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
PALOMINO PARK PUBLIC IMPROVEMENTS
CORPORATION
By /s/ David M. Strong
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Name: David M. Strong
Title: President
WELLSFORD REAL PROPERTIES, INC.
By /s/ James J. Burns
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Name: James J. Burns
Title: Vice President, Chief
Financial Officer
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COMMERZBANK AG,
NEW YORK BRANCH
By /s/ Christian Berry
--------------------------
Name: Christian Berry
Title: Vice President
By /s/ James Brett
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Name: James Brett
Title: Assistant Treasurer
Acknowledged and consented to:
ERP OPERATING LIMITED PARTNERSHIP
By EQUITY RESIDENTIAL, General Partner
By /s/ Robert Tanaka
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Name: Robert Tanaka
Title: Vice President
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