EXHIBIT 3
ACKNOWLEDGMENT
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This Acknowledgement is made as of February 8, 2001, among
CAPITAL TRUST, INC., a Maryland corporation having an address at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LENDER"), LFSRI II SPV REIT CORP., a Delaware
corporation ("ORIGINAL BORROWER"), Senior Quarters Funding Corp., a Delaware
corporation ("NEW BORROWER"; Original Borrower and New Borrower being sometimes
individually and collectively called "BORROWER" and having an address at c/o
Lazard Freres Real Estate Investors, L.L.C., 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attn: General Counsel), and the other parties signatory
hereto ("BORROWER PARTIES").
RECITALS
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A. Lender and Original Borrower entered into a Loan
Agreement, dated as of June 30, 1999 (the "ORIGINAL LOAN AGREEMENT") pursuant to
which Lender made a loan (the "ORIGINAL LOAN") to the Original Borrower in the
initial principal amount of $52,500,000.
B. The Original Loan is evidenced by a Note in the
original principal amount of $52,500,000 dated June 30, 1999 (the "ORIGINAL
NOTE"), made by Original Borrower to Lender, which is guaranteed under certain
circumstances by a Guaranty dated June 30, 1999 (the "ORIGINAL GUARANTY"), made
by LF Strategic Realty Investors II L.P., LFSRI II-CADIM Alternative Partnership
L.P. and LFSRI II Alternative Partnership L.P. in favor of Lender, and secured
by, among other things, a Deposit and Security Agreement dated June 30, 1999
(the "ORIGINAL DEPOSIT AGREEMENT"), among Lender, Original Borrower and the
other parties signatory thereto, a Custodial Agreement dated June 30, 1999,
among Lender, Original Borrower and the other parties signatory thereto, and
certain Pledge and Security Agreements (the "ORIGINAL PLEDGE AGREEMENTS").
C. Lender and Original Borrower entered into an Omnibus
Amendment, dated as of April 24, 2000 (the "FIRST AMENDMENT"), whereby the
Original Loan Agreement, the Original Note, the Original Guaranty, the Original
Deposit Agreement, and the Original Pledge Agreements were amended to reflect,
among other things, an increase in the principal amount of the Original Loan by
an additional $10,000,000 (the "INCREASED ORIGINAL LOAN"), such that the entire
outstanding principal balance of the Increased Original Loan was $58,500,000 on
the date of the First Amendment. The First Amendment included the provision to
Lender on behalf of the Original Borrower of certain additional collateral
pursuant to a certain Collateral Assignment (the "ORIGINAL COLLATERAL
ASSIGNMENT"). The Increased Original Loan was evidenced by the Original Note and
a certain Note, dated April 24, 2000, from the Original Borrower to the Lender
in the original principal amount of $10,000,000 (the "FIRST ADDITIONAL NOTE").
As of the date hereof, the outstanding principal balances of the
Original Note and the First Additional Note are $36,250,000 and $10,000,000
respectively.
D. At the request of the Borrower, the Lender has agreed
to increase the Increased Original Loan by the additional principal amount of
$63,750,000 (the "NEW LOAN AMOUNT") and to make certain amendments to the
Original Loan Agreement (as amended by the First Amendment) and the related loan
documents, all as set forth in the Amended and Restated Loan Agreement of even
date herewith between Borrower and Lender ("AMENDED AND RESTATED LOAN
AGREEMENT"). In furtherance thereof, the Original Borrower and the Borrower
Parties have agreed to enter into this Acknowledgement.
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto agree as follows:
1. As used in the Increased Original Loan Documents (as
such term is defined in the Amended and Restated Loan Agreement), the following
terms shall have the following meanings:
"LOAN AGREEMENT" shall mean the Amended and Restated
Loan Agreement.
"MATURITY DATE" shall be deemed to constitute a
reference to such term as it is defined in the
Amended and Restated Loan Agreement, and to be
followed by the words "or the Extended Maturity Date,
if applicable."
"DEPOSIT AGREEMENT" shall mean the Amended and
Restated Deposit Account Agreement (as such term is
defined in the Amended and Restated Loan Agreement).
All other capitalized terms used but not defined in any
Increased Original Loan Document or in this Acknowledgment shall have the
meaning given to such term in the Amended and Restated Loan Agreement.
2. The first sentence of the second full paragraph of
the First Additional Note is hereby amended to add the word "First" before the
word "Additional" in the first line thereof. All references in the Increased
Original Loan Documents to "Prepayment Premium" are hereby deleted.
3. The Original Borrower and the Borrower Parties hereby
confirm and reaffirm the Increased Original Loan Documents, and acknowledge that
the New Borrower is assuming the obligations of Borrower thereunder to the end
that the obligations of the Original Borrower and the New Borrower shall be the
joint and several obligations of each and both of them.
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4. The Original Borrower and each of the Borrower
Parties hereby represent and warrant to Lender that, as of the date hereof:
(a) any and all representations and warranties
made by any of them in the Increased
Original Loan Documents are true, correct
and complete; and
(b) it is in full compliance with any and all
covenants made by it in any of the Increased
Original Loan Documents.
5. The Borrower and the Borrower Parties agree that,
except to the extent amended or supplemented by the Amended and Restated Loan
Agreement, the Amended and Restated Deposit Account Agreement, the New Pledges
and this Acknowledgement, the Increased Original Loan Documents remain in full
force and effect without modification.
6. The Original Guaranty is being replaced by the
Guaranty, and the amortization requirements of the Original Note, as amended by
the First Amendment, and the First Additional Note, are being replaced by the
schedule of aggregate amortization requirements for all the Notes, as set forth
in Exhibit B to the Amended and Restated Loan Agreement.
7. This Acknowledgement may not be modified, amended or
terminated, except by an agreement in writing signed by Lender, Borrower and the
Borrower Parties.
8. This Acknowledgement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
9. If any term, covenant or provision of this
Acknowledgement shall be held to be invalid, illegal or unenforceable in any
respect, this Acknowledgement shall, at Lender's option, be construed without
such term, covenant or provision.
10. The paragraph headings used herein are intended for
reference purposes only and shall not be considered in the interpretation of the
terms and conditions hereof.
11. This Acknowledgement may be executed in one or more
counterparts by some or all of the parties hereto each of which counterparts
shall be an original and all of which together shall constitute a single
agreement.
12. This Acknowledgement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to conflict of law principles thereof.
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IN WITNESS WHEREOF, the parties have duly executed this
Amendment as of the day and year first above written.
CAPITAL TRUST, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx XxxxXxxxxx
Title: Managing Director
LFSRI II SPV REIT CORP.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
LF STRATEGIC REALTY INVESTORS II L.P.,
LFSRI II-CADIM ALTERNATIVE PARTNERSHIP L.P. and
LFSRI II ALTERNATIVE PARTNERSHIP L.P.
By: LAZARD FRERES REAL ESTATE INVESTORS L.L.C.,
their general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial Officer
PROMETHEUS MID-ATLANTIC INVESTORS TRUST
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
PROMETHEUS SOUTHEAST RETAIL TRUST
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and Chief Financial
Officer
PROMETHEUS SOUTHEAST RETAIL LLC
By: LFSRI II SPV REIT CORP., its managing member
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
LFSRI II ASSISTED LIVING LLC
By: LF STRATEGIC REALTY INVESTORS II L.P.,
its managing member
By: LAZARD FRERES REAL ESTATE INVESTORS
L.L.C., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Principal and Chief
Financial Officer
LFSRI II EXTENDED STAY L.L.C.
By: LFSRI II SPV E.S. Corp., its managing member
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Principal and Chief
Financial Officer
PROMETHEUS EXTENDED STAY, L.L.C.
By: LFSRI II Extended Stay L.L.C.,
its sole member
By: LFSRI II SPV E.S. Corp., its managing member
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
SENIOR QUARTERS FUNDING CORP.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
