ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated June
19, 1997, by and between BANKBOSTON, N.A. (formerly known as The First
National Bank of Boston) ("Assignor"), and WELLSFORD REAL PROPERTIES, INC.
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is a party to that certain Credit Agreement dated as of
April 25, 1997 (as amended and in effect from time to time, the "Credit
Agreement"), by and among Park Avenue Financing Company, LLC, a Delaware
limited liability company, and PAMC Co-Manager Inc., a Delaware corporation
(collectively the "Borrower"), The First National Bank of Boston (now known as
BankBoston, N.A.), Assignee, the other banks which may become parties thereto
from time to time (collectively, the "Banks"), The First National Bank of
Boston (now known as BankBoston, N.A.), as Agent for the Banks (in such
capacity, the "Agent"), and certain other parties; and
WHEREAS, Assignor desires to transfer to Assignee a Commitment under the
Credit Agreement and its rights under the Credit Agreement (i) with respect to
the Commitment being assigned and (ii) its outstanding Loan with respect to
the Commitment;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby
agree as follows:
1. Definitions. Terms defined in the Credit Agreement and used herein
without definition shall have the respective meanings assigned to such terms
in the Credit Agreement.
2. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by Assignee to Assignor pursuant to
Paragraph 5 of this Agreement, effective as of the "Assignment Date" (as
defined in Paragraph 7 below), Assignor hereby irrevocably sells, transfers
and assigns to Assignee, without recourse a portion of its Note in the amount
of $5,000,000.00 representing a $5,000,000.00 Commitment, a six and one-fourth
percent (6.25%) Commitment Percentage and a six and one-fourth percent (6.25%)
interest in and to all of the other rights and obligations under the Credit
Agreement, the other Loan Documents and the Intercreditor Agreement dated as
of April 25, 1997 among the Banks and Agent (the "Intercreditor Agreement")
(the assigned interests being hereinafter referred to as the "Assigned
Interests"), including without limitation, Assignor's share of the outstanding
Loan under the Assigned Interests and the right to receive interest and
principal on and all other fees and amounts with respect to, the Assigned
Interests, all from and after the Assignment Date, all as if Assignee were an
original Bank under and signatory to the Credit Agreement having a Commitment
Percentage equal to such amount of the Assigned Interests.
EDG Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of Assignor with respect to the Assigned Interests
from and after the Assignment Date as if Assignee were an original Bank under
and signatory to the Credit Agreement and the Intercreditor Agreement, which
obligations shall include, but shall not be limited to, the obligation to
indemnify the Agent as provided therein (such obligations, together with all
other obligations set forth in the Credit Agreement, the other Loan Documents
and the Intercreditor Agreement, are hereinafter collectively referred to as
the "Assigned Obligations"). Assignor shall have no further duties or
obligations with respect to, and shall have no further interest in, the
Assigned Obligations or the Assigned Interests.
3. Representations and Requests of Assignor.
(a) Assignor represents and warrants to Assignee (i) that it is
legally authorized to, and has full power and authority to, enter into this
Agreement and perform its obligations under this Agreement; (ii) that as of
the date hereof, before giving effect to the assignment contemplated hereby,
the principal face amount of Assignor's Note is $60,000,000.00 and the
aggregate principal balance of the Loan made by it equals $60,000,000.00; and
(iii) that it has forwarded to the Agent the Note held by Assignor. Assignor
makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness or sufficiency of any Loan Document or
any other instrument or document furnished pursuant thereto or in connection
with the Loan, the collectibility of the Loan, the continued solvency of the
Borrower, the Guarantor or any Additional Pledgor or the continued existence,
sufficiency or value of the Collateral or any assets of the Borrower, the
Guarantor or any Additional Pledgor which may be realized upon for the
repayment of the Loan, or the performance or observance by the Borrower, the
Guarantor, any Additional Pledgor or any other Person of any of their
respective obligations under the Loan Documents to which it is a party or any
other instrument or document delivered or executed pursuant thereto or in
connection with the Loan; other than that it is the legal and beneficial owner
of, or has the right to assign, the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim.
(b) Assignor requests that the Agent obtain replacement notes for
each of Assignor and Assignee as provided in the Credit Agreement.
4. Representations of Assignee. Assignee makes and confirms to the
Agent, Assignor and the other Banks all of the representations, warranties and
covenants of a Bank under Article 13 and 17 of the Credit Agreement and in
Paragraph 3 of the Intercreditor Agreement. Without limiting the foregoing,
Assignee (a) represents and warrants that it is legally authorized to, and has
full power and authority to, enter into this Agreement and perform its
obligations under this Agreement; (b) confirms that it has received a copy of
the Loan Documents and the Intercreditor Agreement, together with copies of
the most recent financial statements delivered pursuant to the Credit
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement; (c) agrees that it has and will, independently and without reliance
upon Assignor, any other Bank or the Agent and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in evaluating the Loan, the Loan Documents, the
creditworthiness of the Borrower, the Guarantor and the Additional Pledgors
and the value of the Collateral and other assets of the Borrower, the
Guarantor and the Additional Pledgors and taking or not taking action under
the Loan Documents and the Intercreditor Agreement; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers as are reasonably incidental thereto pursuant to the
terms of the Loan Documents and the Intercreditor Agreement; (e) agrees that
it will become a party to and will perform in accordance with their terms all
the obligations which by the terms of the Loan Documents and the Intercreditor
Agreement are required to be performed by it as a Bank; and (f) represents and
warrants that Assignee does not control, is not controlled by, is not under
common control with and is otherwise free from influence or control by, the
Borrower, the Guarantor, the Managing Member and the Additional Pledgors.
5. Payments to Assignor. In consideration of the assignment made
pursuant to Paragraph 1 of this Agreement, Assignee agrees to pay to Assignor
on the Assignment Date, an amount equal to the aggregate principal amount
outstanding of the Loan owing to Assignor, in connection with the Assigned
Interests under the Credit Agreement and the other Loan Documents.
6. Intentionally Omitted.
7. Effectiveness.
(a) The effective date for this Agreement shall be June 19, 1997
(the "Assignment Date"). Following the execution of this Agreement, each
party hereto shall deliver its duly executed counterpart hereof to the Agent
for acceptance and recording in the Register by the Agent.
(b) Upon such acceptance and recording and from and after the
Assignment Date, (i) Assignee shall be a party to the Credit Agreement and the
Intercreditor Agreement and shall, to the extent of the Assigned Interests,
have the rights and obligations of a Bank thereunder, and (ii) Assignor shall,
with respect to the Assigned Interests, relinquish its rights and be released
from its obligations under the Credit Agreement and the Intercreditor
Agreement.
(c) Upon such acceptance and recording and from and after the
Assignment Date, the Agent shall make all payments in respect of the Assigned
Interests accruing after the Assignment Date (including payments of principal,
interest, fees and other amounts) to Assignee, and Agent is authorized to
retain from the next payment of Borrower and pay to Assignor interest at the
rate of twelve percent per annum as provided in the Credit Agreement with
respect to the Assigned Interests for the period accruing prior to the
Assignment Date.
8. Notices. Assignee specifies as its address for notices and its
Lending Office for all Loans, the offices set forth below:
Notice Address: Wellsford Real Properties, Inc.
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: 212/▇▇▇-▇▇▇▇
9. Payment Instructions. All payments to Assignee under the Credit
Agreement shall be made as provided in the Credit Agreement in accordance with
the following instructions:
Wellsford Real Properties, Inc.
Chase Manhattan Bank, N.A.
For the account of United States Trust Company of New York
Account No. ▇▇▇-▇-▇▇▇▇▇▇
In favor of: Wellsford Real Properties, Inc. Operating
Account
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10. Governing Law. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT FOR ALL PURPOSES AND TO BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE
TO CONFLICT OF LAWS).
11. Counterparts. This Agreement may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
12. Amendments. This Agreement may not be amended, modified or
terminated except by an agreement in writing signed by Assignor and Assignee,
and consented to by Agent.
13. Successors. This Agreement shall inure to the benefit of the
parties hereto and their respective successors and assigns as permitted by the
terms of Credit Agreement and the Intercreditor Agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Agreement to be executed on its behalf by its
officers thereunto duly authorized, as of the date first above written.
ASSIGNOR:
BANKBOSTON, N.A.
(formerly known as The First National
Bank of Boston)
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
ASSIGNEE:
WELLSFORD REAL PROPERTIES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CFO
[SEAL]
The undersigned, as Agent, acknowledges receipt of the foregoing
assignment and consents thereto (including, without limitation, such consents
as may be required by Section 17.1(a), (e) or (f) under the Credit
Agreement).
BANKBOSTON, N.A. (formerly
known as The First National Bank
of Boston), as Agent
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
The undersigned is a "Guarantor" and/or "Additional Pledgor" under one
or more of the Loan Documents. The Loan Documents executed by the undersigned
provide that the obligations of the undersigned extend to each other Note as
may be issued under the Credit Agreement. Each of the undersigned executes
the foregoing Agreement for the purpose of acknowledging that the Loan
Documents to which each of the undersigned is a party extends to and is
applicable to each new Note which is issued pursuant to the Credit Agreement
in connection with the foregoing Agreement and with respect to any Commitment
being retained by Assignor from and after such assignment.
GUARANTOR AND ADDITIONAL PLEDGOR:
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ADDITIONAL PLEDGOR:
PAFC MANAGEMENT, INC., a Delaware
corporation
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
[CORPORATE SEAL]