EXHIBIT 8
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FIRST AMENDMENT TO CUSTODIAL AGREEMENT
THIS FIRST AMENDMENT TO CUSTODIAL AGREEMENT (this "AMENDMENT") is dated
as of July 11, 2002 among CAPITAL TRUST, INC., a Maryland corporation
("LENDER"), having an address at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000; PROMETHEUS SOUTHEAST RETAIL TRUST, a Maryland real estate investment
trust ("PROMETHEUS"), having an address at ? Lazard Freres Real Estate Investors
L.L.C., 00 Xxxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxx, LASALLE NATIONAL BANK ("BANK") having an address at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxx Xxxx Xxxxxxx
and CTMPII FC LF (MS), a Cayman Islands exempted company ("CTMPII") having an
address c/o Capital Trust, Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Loan Administrator.
RECITALS
A. Lender has previously made a loan to LSFRI II SPV REIT Corp.,
a Delaware corporation and Senior Quarters Funding Corp., a Delaware corporation
(collectively, "BORROWER"), in the principal sum of $110,000,000 ("LOAN") in
accordance with the provisions of a certain Amended and Restated Loan Agreement
dated as of February 8, 2001, as amended (the "LOAN AGREEMENT").
B. CTMPII has agreed to make a subordinate loan to Borrower in
the principal sum of up to $65,000,000 (the "SUBORDINATE LOAN") in accordance
with the provisions of a certain Loan Agreement (the "SUBORDINATE LOAN
AGREEMENT") dated as of even date herewith.
C. Prometheus is the sole record and beneficial owner of
21,052,631 shares of the capital stock ("STOCK") of Konover Property Trust,
Inc., a Maryland corporation (the "COMPANY"), evidenced by certificate numbers
TKP 0028, TKP 0026, TKP 0027 and TKP 0033 (the "CERTIFICATES").
D. Pursuant to the terms of that certain Custodial Agreement
dated as of June 30, 1999 by and among Lender, Prometheus and Bank, Prometheus
has previously delivered to Bank, as custodian for Prometheus and Lender, all
the Certificates (the "ORIGINAL CUSTODIAL AGREEMENT"; the Original Custodial
Agreement, as amended by this Amendment, is the "CUSTODIAL AGREEMENT")
E. CTMPII is willing to make the Subordinate Loan only if
Prometheus agrees to execute and deliver this Amendment as additional protection
to the Lender for the performance by the Borrower and the members of the
Borrower Control Group (as such term is defined in the Subordinate Loan
Agreement) of their obligations contained in the Loan Documents (as such term is
defined in the Subordinate Loan Agreement).
F. Prometheus will derive substantial economical benefit from the
Subordinate Loan, and therefore, Prometheus desires to execute this Amendment in
order to satisfy the conditions described in the foregoing paragraph.
NOW THEREFORE, in consideration of CTMPII, agreement to make the
Subordinate Loan and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Notwithstanding anything to the contrary contained in
Section 1 of the Original Custodial Agreement, the parties hereto agree that
Bank holds possession of the Certificates and all other securities, rights,
options, warrants and other instruments issued to Prometheus which, from time to
time, may be delivered to Bank pursuant to the terms of the Custodial Agreement,
as Custodian for CTMPII, Prometheus and Lender.
SECTION 2. CTMPII hereby appoints the Bank as its agent, to hold on its
behalf and for its benefit, the Certificates. The Bank hereby accepts such
appointments and agrees to perform the responsibilities of the Bank under the
Custodial Agreement. The sole responsibility of the Bank under the Custodial
Agreement shall be to hold the Certificates pursuant to the direction of Lender.
Notwithstanding anything to the contrary contained in the Original Custodial
Agreement, Lender agrees that, upon the payment in full of the Indebtedness
under the Loan Documents (as such terms are defined in the Loan Agreement),
Lender shall direct the Bank to return the Certificates and all additions
thereto to CTMPII. Upon payment in full of the Indebtedness under the Loan
Documents (as such terms are defined in the Subordinate Loan Agreement), CTMPII
shall direct the Bank to return the Certificates and all additions thereto to
Prometheus.
SECTION 3. CTMPII shall not be liable for any acts, omissions, errors
in judgement or mistakes of fact or law, including without limitation, acts,
omissions, errors or mistakes with respect to the Certificates, except for those
arising as a result of CTMPII's willful misconduct or gross negligence. Without
limiting the generality of the foregoing, except as otherwise expressly provided
for in the Custodial Agreement or as required by applicable law, CTMPII shall
have no duty with respect to the Certificates, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to the Certificates or the Stock, whether or not CTMPII
has or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other right
pertaining to the Certificates or the Stock. CTMPII is hereby authorized by
Prometheus to act on any written instruction reasonably believed by CTMPII in
good faith to have been given or sent by Prometheus.
SECTION 4. The reference to "Loan Documents" contained in Section 2 of
the Original Custodial Agreement is hereby amended to read "Loan Documents or
Loan Documents (as such term is defined in the Subordinate Loan Agreement)."
SECTION 5. The reference to "Lender" contained in Section 6(b) of the
Original Custodial Agreement is hereby amended to read "Lender or CTMPII."
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SECTION 6. The references to "Lender" contained in Section 7 of the
Original Custodial Agreement are hereby amended to read "Lender and CTMPII".
SECTION 7. The reference to "June 28, 1998" contained in Section 13 of
the Original Custodial Agreement is a scrivener's error and is hereby corrected
to read "June 8, 1998".
SECTION 8. This Amendment may be amended from time to time only in a
writing signed by all the parties hereto.
SECTION 9. All notices and other communications provided for under the
Custodial Agreement to be given to CTMPII shall be given to the address of
CTMPII first written above.
SECTION 10. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of laws.
SECTION 11. Lender, Prometheus, Bank and CTMPII agree that all of the
terms, covenants and conditions of the Original Custodial Agreement, except as
expressly modified and amended pursuant to the provisions of this Amendment,
remain in full force and effect.
SECTION 12. This Amendment 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. The
failure of any party listed below to execute this Amendment, or any counterpart
thereof, shall not relieve the other signatories from their obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
CAPITAL TRUST, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Managing Director
PROMETHEUS SOUTHEAST
RETAIL TRUST
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and
Chief Financial Officer
LASALLE NATIONAL BANK
By: /s/ Xxxxxx Xxxxx-Xxxxx
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Name: Xxxxxx Xxxxx-Xxxxx
Title: Vice President
CTMPII FC LF (MS)
By: /s/ Xxxxxx X. Xxxxxxx III
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Name: Xxxxxx X. Xxxxxxx III
Title: Authorized Signatory
