AMENDMENT NO. 2 TO WARRANT AGREEMENT
This AMENDMENT NO. 2 (this "Amendment") to the Warrant Agreement, dated as
of August 28, 1997, as amended , is made and entered into as of May 28, 1999 by
and between Wellsford Real Properties, Inc., a Maryland corporation (together
with its successors and permitted assigns, the "Company"), and United States
Trust Company of New York (together with its successors and permitted assigns,
the "Warrant Agent").
R E C I T A L S
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WHEREAS, the Company and the Warrant Agent are parties to that certain
Warrant Agreement, dated as of August 28, 1997 (the "Original Warrant
Agreement"), pursuant to which the Company had issued to WHWEL Real Estate
Limited Partnership, a Delaware limited partnership ("WHWEL"), five million
(5,000,000) warrants (the "Warrants") to purchase shares of the Company's common
stock;
WHEREAS, the Company and the Warrant Agent entered into that certain
Amendment No. 1 to Warrant Agreement, dated as of July 16, 1998 ("First
Amendment"; the Original Warrant Agreement as amended by the First Amendment,
the "Warrant Agreement"), to reflect the transactions whereby WHWEL, Wellsford
Commercial Properties Trust, a Maryland real estate investment trust ("WCPT")
and other parties formed Wellsford/Whitehall Properties II, L.L.C., a Delaware
limited liability company ("WWP II");
WHEREAS, WHWEL, W/W Group Holdings, L.L.C., a Delaware limited liability
company ("Holding Co."), WXI/WWG Realty, L.L.C., a Delaware limited liability
company, WCPT and other members of WWPII have formed, and contributed certain
assets to, Wellsford/Whitehall Group, L.L.C. (collectively, the "Group
Transactions");
WHEREAS, in connection with the Group Transactions, WHWEL desires to assign
its interest in the Warrants to Holding Co.; and
WHEREAS, the parties hereto desire to amend the Warrant Agreement to
reflect the transactions described above and certain other matters.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Warrant Agent
hereby agree as follows:
1. Definitions. All capitalized terms used and not defined herein shall
have the meanings given to such terms in the Warrant Agreement.
Exhibit 4.41 Page 1
2. Amendment to Warrant Agreement.
(a) The terms "Initial Holder", "Membership Unit", and "Wellsford/Whitehall
II LLC Agreement", as defined in Section 1 of the Warrant Agreement, shall be
deleted in their entirety and replaced with the following terms and definitions:
(i) "'Initial Holder' shall mean Holding Co."
(ii) "'Membership Unit' shall have the meaning set forth in the
Wellsford/Whitehall Group LLC Agreement."
(iii) "'Wellsford/Whitehall Group LLC Agreement' shall mean that certain
Limited Liability Company Operating Agreement of Wellsford/Whitehall Group dated
as of May ___, 1999, as such agreement may be amended or modified from time to
time."
All further references in the Warrant Agreement to the term "Initial
Holder", "Membership Unit" and "Wellsford/Whitehall II LLC Agreement" shall be
deemed to refer to the terms "Initial Holder", "Membership Unit" and
"Wellsford/Whitehall Group LLC Agreement", respectively, as each is defined in
this Amendment.
(b) The following defined terms and definitions shall
be inserted into Section 1 of the Warrant Agreement in their appropriate
alphabetical order:
(i) "'Deemed Value Per Membership Unit' shall have the meaning set forth in
the Wellsford/Whitehall Group LLC Agreement."
(ii) "'Holding Co.' shall mean W/W Group Holdings, L.L.C., a Delaware
limited liability company."
(iii) "'Registration Rights Agreement' shall mean the Registration Rights
Agreement dated as of May ___, 1999, by and between the Company and the Initial
Holder, as such agreement may be amended or modified from time to time."
Exhibit 4.41 Page 2
(iii) "'Wellsford/Whitehall Group' shall mean Wellsford/Whitehall Group,
L.L.C., a Delaware limited liability company."
(c) The following defined terms and definitions shall be deleted from
Section 1 of the Warrant Agreement: "Company Shares", "Demand Registration",
"Eligible Common Stock", "Eligible Securities", "Favorable Term", "Piggyback
Registration", "Prospectus", "Registration Demand", "Registration Procedures",
"Registration Rights", "Registration Statement", "Representative", "Saracen
Members", "Saracen Registration Rights Agreement", "selling holder", "Shelf
Registration", "Shelf Registration Statement", "Subsequent Warrant Holder",
"Takedown", "underwriter" and "underwriting or agency agreement".
(d) The last sentence of Article 1 is hereby deleted in its entirety and
replaced with the following language:
"Certain terms used principally in Article 6 are defined in that Section."
(e) Section 3.1(b) of the Warrant Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) When exercised in accordance with subparagraph (c) below, each Warrant
shall entitle the Holder to purchase, and the Company shall be required to
deliver, a number of shares of Common Stock equal to the Shares Amount in effect
on the day such Warrant is exercised in accordance with Section 3.1(c), at an
exercise price (the "Exercise Price") of, at the sole election of the Holder,
either (x) a number of Membership Unit(s) equal to the quotient (rounded to the
nearest one ten-thousandth (0.0001)) of (i) $10.00 divided by (ii) the Deemed
Value Per Membership Unit or (y) $10.00 in cash; provided,
Exhibit 4.41 Page 3
however, that the Company may, at its sole election, pay to the Holder of each
Warrant so exercised in respect of any one or more of such Warrants cash in an
amount equal to the Cash Amount in lieu of delivering the shares of Common
Stock. When multiple Warrants are exercised, the Exercise Price may consist of
cash, Membership Units or any combination thereof. For the avoidance of doubt,
the Holder may procure Membership Units for the payment of the Exercise Price
from its Affiliates or other third-parties. Notwithstanding the foregoing, the
Holder may not elect to deliver Membership Units as the Exercise Price upon the
exercise of any Warrant before August 28, 1999."
(f) Article 7 of the Warrant Agreement is hereby amended to read in its
entirety as follows:
ARTICLE 7
REGISTRATION RIGHTS AND PROCEDURES
Section 7.1. The Company acknowledges that it is subject to the terms and
conditions of the Registration Rights Agreement.
(g) Article 8 of the Warrant Agreement is hereby amended to read in its
entirety as follows:
ARTICLE 8
Intentionally Deleted
(h) Section 13.9 of the Warrant Agreement is hereby amended to read in its
entirety as follows:
Section 13.9 Remedies. In the event of a breach by the Company or by a
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including
Exhibit 4.41 Page 4
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
3. Persons Benefitting. This Amendment shall be binding upon and inure to
the benefit of any Holders (each of whom is an intended third party
beneficiary), the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators. Nothing in
this Amendment is intended or construed to confer upon any Person, other than
the Company, the Warrant Agent and the Holders (and such successors, assigns,
beneficiaries, executors and administrators), any right, remedy or claim under
or by reason this Amendment or any part hereof.
4. Continued Force and Effect. The Warrant Agreement, as amended by this
Amendment, and each and every provision, covenant, representation, warranty,
condition and right contained therein, as amended by this Amendment, is hereby
ratified and affirmed as of the date hereof, and shall continue in full force
and effect.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
6. Headings and Captions. All headings and captions contained in this
Amendment hereto are inserted for convenience only and shall not be deemed a
part of this Amendment.
7. Governing Law. THIS AMENDMENT AND ALL RIGHTS ARISING HEREUNDER SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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[SIGNATURE PAGE FOLLOWS]
Exhibit 4.41 Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, as of the day and year first above written.
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Edward Lowenthal
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Name: Edward Lowenthal
Title: President
UNITED STATES TRUST COMPANY OF
NEW YORK, Warrant Agent
By: /s/ Cynthia Chaney
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Name: Cynthia Chaney
Title: Assistant Vice President
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