OCTOBER 2001 AMENDMENT TO THE LETTER
OF CREDIT REIMBURSEMENT AGREEMENT
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OCTOBER 2001 AMENDMENT TO THE LETTER OF CREDIT REIMBURSEMENT AGREEMENT
(this "Amendment"), dated as of October 26, 2001, 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 1.1 of the Letter
of Credit Agreement is hereby amended by deleting the defined term
"Shareholder's Equity" in its entirety and replacing it with the following:
"Shareholder's Equity" means, at any date, the total consolidated
shareholder's equity of WRP and its Subsidiaries, determined in conformity
with generally accepted accounting principles consistently applied, but in
any event including as equity the aggregate principal amount of the
Debentures outstanding at the time of any determination thereof.
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 as of the date hereof.
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: Senior Vice President
COMMERZBANK AG, NEW YORK BRANCH
By /s/ Douglas Traynor
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Name: Douglas Traynor
Title: Senior Vice President
By /s/ David Buettner
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Name: David Buettner
Title: Assistant Vice President
Acknowledged, agreed and consented to:
ERP OPERATING LIMITED PARTNERSHIP
By EQUITY RESIDENTIAL PROPERTIES
TRUST, General Partner
By /s/ Robert Tanaka
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Name: Robert Tanaka
Title: Authorized Signator