February 16, 1995
The Peregrine Real Estate Trust
0000 Xxxxx Xxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Note Agreement between
The Peregrine Real Estate Trust ("Company") and The Prudential Insurance Company
of America, as agent for the Noteholders ("Prudential") dated as of September
27, 1994 (the "Agreement"), pursuant to which Company issued the Principal Notes
to the Noteholders and may issue to the Noteholders from time to time, INTER
ALIA, the Interest Deferral Notes. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Agreement.
At the request of Company and pursuant to the provisions of Section 8.3 of
this Agreement, the Noteholders agree to the following amendments to the
Agreement:
1. Article 1 is amended by adding the following defined term as Section
1.79A:
"1.79A "Release Dates" has the meaning set forth in Section 2.4(b)."
2. Section 2.4(b) is amended by deleting the phrase "Company shall
immediately pay to Agent" that appears at the beginning of the section and
substituting in its place, "On the Release Dates (as defined below),
Company shall pay to Agent."
3. Section 2.4(b) is further amended by adding the following at the end
of the section:
"The payments required by this Section 2.4(b) shall be made on the
following dates (the "Release Dates"): (i) those dates on which the
aggregate Net Cash Proceeds that have been received from the
transactions or events described in this Section 2.4(b) and that have
not been paid to Agent in accordance with this Section 2.4(b) exceed
$100,000, and (ii) those dates 30 days after the end of each fiscal
quarter, if any Net Cash Proceeds have been received during such
fiscal quarter and have not been paid to Agent in accordance with this
Section 2.4(b). Prior to the Release Dates, Company may retain such
Net Cash Proceeds but may
not withdraw or otherwise use such proceeds for any purpose other than
prepayments in accordance with this Section 2.4(b)."
4. The last sentence of Section 2.4( c) is deleted and the following is
substituted in its place:
"Notice of prepayment having been given as aforesaid, the principal
amount of the Notes specified in such notice, together, if applicable,
with interest thereon to the prepayment date, shall become due and
payable on such prepayment date."
5. Section 2.7 is amended by adding the following at the end of the
section:
"Notwithstanding the foregoing, until such time as Company is paying
interest on the Notes in cash, all prepayments of the Notes pursuant
to Section 2.4(b) shall be allocated FIRST to the principal balance of
the Interest Deferral Notes, and SECOND to the principal balance of
the Principal Notes; thereafter, prepayments of the Notes pursuant to
Section 2.4(b) shall be allocated FIRST to the principal balance of
the Interest Deferral Notes plus interest thereon to the prepayment
date, and SECOND to the principal balance of the Principal Notes plus
interest thereon to the prepayment date."
6. Section 5.2 is amended by deleting the second sentence and
substituting the following in its place:
"At the same time Company delivers the financial statements required
by Sections 5.3(c) and (d), Company shall deliver to Agent and each
Noteholder a Certificate of Compliance and Financial Condition,
properly executed in the form attached hereto as Exhibit E."
7. The Exhibit E is amended by adding the following as Paragraph 4:
"4. The following Net Cash Proceeds were received by CET and the
following prepayments were made during the fiscal quarter most recently
ended:
Sale of collateral permitted by
Section 6.6 $----------------
Grant of option to purchase
Collateral permitted by
Section 6.7 ----------------
Refinancing Indebtedness permitted
by Section 6.8 ----------------
New (re)financing secured by Lien
on Collateral ----------------
2
Principal (pre)payment on Note
Receivable ----------------
Sharable CalREIT dividends ----------------
Total Net Cash Proceeds $----------------
Noteholders' Share X .800
Noteholders' Share of
Net Cash Proceeds $----------------
Mandatory Prepayments Made to
Noteholders $----------------
Dates(s), if any, on which aggregate Net Cash
Proceeds exceeded $100,000 $----------------
Company represents, warrants and agrees that (i) other than this
letter agreement the parties have not entered into any amendment or mutual
disregard of the terms and conditions of the Agreement, or any course of
dealing or variance with the terms and provisions thereof, (ii) it has
obtained all consents, waivers, approvals and amendments (collectively,
"Consents") necessary to avert a Default or Event of Default under any
material agreement, including under the agreement relating to the New
Credit Line, relating to the subject matter hereof, and (iii) after giving
effect to this letter and any other Consents, no Default or Event of
Default exists on the date hereof or will exist on the date this letter
agreement becomes effective.
This letter agreement may be executed in counterparts that, taken
together, shall constitute the letter agreement. Each party to this letter
agreement agrees to be bound by its own facsimile signature and to accept
the facsimile signatures of the other parties to this letter agreement.
3
If you agree with the foregoing, please sign below and return a copy
of this letter to the Agent. Upon the execution of this letter by the
Majority Noteholders, this letter shall become a binding agreement between
Company and Prudential amending the Agreement in the manner and to the
extent herein provided.
Very truly yours,
AGENT:
The Prudential Insurance Company of America
By: /s/ Xxx Xxxxx
----------------------------------------
Name: Xxx Xxxxx
Title: Second Vice President
NOTEHOLDERS:
Pacific Mutual Life Insurance Company
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Pacific Mutual Vice President
The Prudential Insurance Company of America
By: /s/ Xxx Xxxxx
----------------------------------------
Name: Xxx Xxxxx
Title: Second Vice President
Pruco Life Insurance Company
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name:
Title: Assistant Vice President
4
ORIX USA Corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Deputy President and COO
Weyerhaeuser Company Master
Retirement Trust
By: TCW Special Credits,
Its Investment Manager
By: TCW Asset Management Co.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
TCW Special Credits Fund IV
By: TCW Special Credits
Its General Partner
By: TCW Asset Management Co.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
5
TCW Special Credits Plus Fund
By: TCW Special Credits,
Its General Partner
By: TCW Asset Management Co.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
TCW Special Credits Trust IV
By: Trust Company of the West, Trustee
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
TCW Special Credits Trust IVA
By: Trust Company of the West, Trustee
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
6
Accepted and Agreed:
The Peregrine Real Estate Trust
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: CFO
