EXHIBIT 1
OMNIBUS AMENDMENT
THIS OMNIBUS AMENDMENT (this "Amendment") is made as of the
24th day of April, 2000 by and among CAPITAL TRUST, INC., a Maryland
corporation, having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Loan Administrator, Telefax Number (000) 000-0000 (together with its
successors and assigns, "Lender"), LFSRI II SPV REIT CORP., a Delaware
corporation with an address c/o Lazard Freres Real Estate Investors L.L.C., 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 Attention: General Counsel, Telefax
Number: (000) 000-0000 ("Borrower"), and the other parties signatory hereto
(together with Lender and Borrower, the "Parties").
PRELIMINARY STATEMENT:
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A. Lender and Borrower entered into a Loan Agreement dated
June 30, 1999 (the "Original Loan Agreement"), pursuant to the provisions of
which Lender made a loan (the "Original Loan") to Borrower in the original
principal amount of $52,500,000 and with a current principal amount outstanding
as of the date hereof of $48,500,000 (such current reduced amount, the "Original
Loan Amount"). Unless otherwise defined in this Amendment, all capitalized terms
in this Amendment shall have the meaning given to such terms in the Original
Loan Agreement.
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 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. ("Guarantors") in favor of Lender, and secured
by a Deposit and Security Agreement dated June 30, 1999 (the "Original Deposit
Agreement") by and among Lender, Borrower and the other parties signatory
thereto, a Custodial Agreement dated June 30, 1999 (the "Original Custodial
Agreement") by and among Lender, Borrower and the other parties signatory
thereto, and the Pledge and Security Agreements listed on SCHEDULE I attached
hereto (the "Original Pledge Agreements").
C. At the request of Borrower, Lender has agreed to increase
the Original Loan (the "Additional Loan") by the additional principal amount of
$10,000,000 (the "Additional Loan Amount") and to make certain other amendments
to the Original Loan Agreement and the other Loan Documents, all upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby represent, warrant, covenant and agree as
follows:
1. AMENDMENT OF LOAN AGREEMENT. The Original Loan
Agreement is hereby confirmed and reaffirmed by Lender and Borrower and as so
confirmed and reaffirmed is
hereby amended as follows (the Original Loan Agreement, as so amended, is
hereinafter referred to as the "Amended Loan Agreement"):
(a) As used in the Original Loan Agreement, the term
"Loan" shall mean the Original Loan, as increased by the principal amount of
$10,000,000 as a result of the Additional Loan and as otherwise amended hereby.
(b) As used in the Original Loan Agreement, the term
"Loan Amount" shall mean the sum of the Original Loan Amount and the Additional
Loan Amount.
(c) As used in the Original Loan Agreement, the term
"Initial Use" shall mean (i) with respect to the Original Loan, to make a loan
to Prometheus SQ Holdings Corp., an Affiliate of the Borrower, or to another
directly or indirectly wholly owned (except for preferred equity held by not
more than 150 Persons) subsidiary of LFSRI II, and (ii) with respect to the
Additional Loan, to make a distribution to provide funds, indirectly, to make a
loan in the amount of at least $5 million to ARV Assisted Living LLC ("ARV"),
and to use the balance for general corporate purposes of Borrower, including for
distributions, dividends and advances to other entities and which may include
distributions to provide funds, indirectly, to make additional loans to ARV (any
and all such loans to ARV in an aggregate amount up to $10 million during the
seven-month period from and after the date of the initial loan to ARV are
collectively referred to herein as the "ARV Loans").
(d) As used in the Original Loan Agreement, the term
"Interest Rate" shall mean (i) with respect to the Original Loan, for any
Interest Accrual Period, a per annum interest rate equal to LIBOR plus five
percent (5.0%), adjusted on the first day of each Interest Accrual Period, and
(ii) with respect to the Additional Loan, for any Interest Accrual Period, a per
annum interest rate equal to LIBOR plus six and one-quarter percent (6.25%),
adjusted on the first day of each Interest Accrual Period.
(e) Exhibit C to the Original Loan Agreement shall be
deleted and the Amortization Schedule attached hereto as EXHIBIT C shall be
substituted therefor.
(f) As used in the Original Loan Agreement, the term
"Pledge Agreements" shall include, without limitation, the Collateral Assignment
(as hereinafter defined).
(g) As used in the Original Loan Agreement, the term
"Exit Fee" shall mean an amount equal to two percent (2%) of the Original Loan
Amount and the Additional Loan Amount.
(h) Section 2.6(a) of the Original Loan Agreement shall
be deleted and the following shall be substituted therefor:
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"(a) VOLUNTARY PREPAYMENT. The provisions of this
Section 2.6(a) are subject to Section 2.6(b). Borrower shall not have
the right to prepay all or any portion of the Loan Amount prior to
December 31, 2000 (the "CLOSED PERIOD"). The tender of payment of the
Indebtedness during the Prepayment Period while an Event of Default
exists shall be deemed to constitute a voluntary prepayment for all
purposes of this Agreement, and Lender shall have no obligation to
accept such tender unless accompanied by the applicable Prepayment
Premium and Exit Fee related to the amount or amounts prepaid. From and
after the end of the Closed Period, to and including September 30, 2001
(the "PREPAYMENT-PERIOD") Borrower shall have the right, on any Payment
Date, to prepay either or both of the Original Loan and/or the
Additional Loan, in the case of each in whole, BUT NOT in part, upon at
least ten (10) Business Days' irrevocable notice to Lender, specifying
the amount and the date of prepayment, PROVIDED THAT on the date of
such prepayment Borrower shall pay to Lender the Prepayment Premium and
the Exit Fee related to the amount or amounts prepaid. From and after
the Prepayment Period, Borrower may, on any Payment Date, prepay either
or both of the Original Loan and/or the Additional Loan, in the case of
each in whole BUT NOT in part, upon at least ten (10) Business Days'
irrevocable notice to the Lender, specifying the date and amount of
prepayment; PROVIDED THAT on the date of any such prepayment Borrower
shall be required to pay the Exit Fee related to the amount or amounts
prepaid."
(i) Notwithstanding any provisions of the Original Loan
Agreement to the contrary, upon prepayment in full of the Additional Loan, the
lien of Lender created under the Collateral Assignment (as hereinafter defined)
shall be released in the manner therein described.
(j) Notwithstanding the first sentence of Section 2.6(d)
of the Original Loan Agreement, Borrower may not request that Lender release the
Collateral comprised of the pledge of Dividends and Distributions and Equity
Interests, as applicable, of either Xxxxxxxxxx or Intown unless and until the
Additional Loan has been repaid in full.
(k) The following defined terms are added to the Original
Loan Agreement:
"ORIGINAL NOTE" shall mean the promissory note, dated
June 30, 1999, made by Borrower to Lender pursuant to this Loan
Agreement, in the original principal amount of $52,500,000, as such
note may be modified, amended, supplemented, extended or consolidated
in writing, and any note(s) issued in exchange therefor or in
replacement thereof.
"ADDITIONAL NOTE" shall mean the promissory note,
dated April __, 2000, made by Borrower to Lender pursuant to this Loan
Agreement, in the original principal amount of $10,000,000, as such
note may be modified, amended, supplemented, extended or consolidated
in writing, and any note(s) issued in exchange therefor or in
replacement thereof.
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(l) As used in the Original Loan Agreement, the term
"Note" shall mean the Amended Original Note and/or the Additional Note (as such
terms are hereinafter defined), as the context requires.
2. AMENDMENT OF ORIGINAL NOTE; ADDITIONAL NOTE.
(a) The Original Note is hereby confirmed by Lender and
Borrower in the current reduced principal amount of $48,500,000 and is
reaffirmed by Borrower and as so confirmed and reaffirmed is hereby amended as
follows (the Original Note, as so amended, is hereinafter referred to as the
"Amended Original Note"):
(i) As used in the Original Note, the term
"Loan Agreement" shall mean the Amended Loan Agreement.
(ii) The first sentence of the second full
paragraph of the Original Note is hereby deleted and the following is
substituted therefor: "This Note is the 'ORIGINAL NOTE' referred to in
the Loan Agreement and is entitled to the benefits thereof and subject
to the terms thereof."
(b) Simultaneously with the execution and delivery of
this Amendment, Borrower shall execute and deliver to Lender a promissory note
dated as of the date hereof, in the principal amount of $10,000,000, in the form
attached hereto as EXHIBIT A (the "Additional Note").
3. AMENDMENT OF GUARANTY. The Original Guaranty is
hereby confirmed and reaffirmed by each of the Guarantors and as so confirmed
and reaffirmed is hereby amended as follows (the Original Guaranty, as so
amended, is hereinafter referred to as the "Amended Guaranty"):
(a) As used in the Original Guaranty, the term "Loan"
shall mean the Original Loan, as increased by the principal amount of
$10,000,000 as a result of the Additional Loan and as otherwise amended hereby.
(b) As used in the Original Guaranty, the term "Loan
Amount" shall mean the sum of the Original Loan Amount and the Additional Loan
Amount.
(c) As used in the Original Guaranty, the term "Loan
Agreement" shall mean the Amended Loan Agreement.
(d) As used in the Original Guaranty, the term "Note"
shall mean, collectively, the Amended Original Note and the Additional Note.
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4. AMENDMENT OF DEPOSIT AGREEMENT. The Original Deposit
Agreement is hereby confirmed and reaffirmed by each of the Parties thereto and
as so confirmed and reaffirmed is hereby amended as follows (the Original
Deposit Agreement, as so amended, is hereinafter referred to as the "Amended
Deposit Agreement"):
(a) As used in the Original Deposit Agreement, the term
"Loan" shall mean the Original Loan, as increased by the principal amount of
$10,000,000 as a result of the Additional Loan and as otherwise amended hereby.
(b) As used in each of the Original Deposit Agreement,
the term "Loan Agreement" shall mean the Amended Loan Agreement.
(c) As used in the Original Deposit Agreement, the term
"Distributions" shall include, without limitation, any and all payments of
principal, interest and other amounts made by ARV under any of the ARV Loans.
(d) As used in the Original Deposit Agreement, the term
"Paying Companies" shall include, without limitation, ARV.
(e) Simultaneously with the execution and delivery of
this Amendment, Borrower shall cause to be delivered to ARV an Instruction
Notice (as defined in Section 4(c) of the Original Deposit Agreement),
instructing ARV to make all payments under the ARV Loans to the Deposit Account
(as defined in the Original Deposit Agreement), and Borrower shall cause ARV to
consent in writing to same.
5. PREPAYMENT OF ADDITIONAL LOAN. Notwithstanding any
provisions of the Original Deposit Agreement (as amended by this Amendment) to
the contrary, upon the prepayment in full of the Additional Loan, (i) the term
"Distributions" shall no longer include any and all payments of principal,
interest and other amounts made by ARV under the ARV Loans and (ii) the term
"Paying Companies" shall no longer include ARV.
6. AMENDMENT OF PLEDGE AGREEMENTS. Each of the Original
Pledge Agreements is hereby confirmed and reaffirmed by the Parties thereto and
as so confirmed and reaffirmed is hereby amended as follows (the Original Pledge
Agreements, as so amended, are hereinafter referred to as the "Amended Pledge
Agreements"):
(a) As used in each of the Original Pledge Agreements,
the term "Loan" shall mean the Original Loan, as increased by the principal
amount of $10,000,000 and as otherwise amended hereby.
(b) As used in each of the Original Pledge Agreements,
the term "Loan Amount" shall mean the sum of the Original Loan Amount and the
Additional Loan Amount.
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(c) As used in each of the Original Pledge Agreements,
the term "Loan Agreement" shall mean the Amended Loan Agreement.
(d) As used in each of the Original Pledge Agreements,
the term "Note" shall mean, collectively, the Amended Original Note and the
Additional Note.
7. COLLATERAL ASSIGNMENT. Simultaneously with the
execution and delivery of this Amendment, Borrower shall execute and deliver to
Lender (i) a Collateral Assignment in the form of EXHIBIT B attached hereto (the
"Collateral Assignment"), pursuant to which Lender shall be granted a perfected
security interest in the ARV Loans and the documents evidencing the ARV Loans
and all proceeds thereof, and (ii) any and all other agreements, instruments and
other documents, including, without limitation, UCC-1 financing statements,
necessary or advisable, in Lender's sole discretion, to perfect the security
interest granted under the Collateral Assignment or any other Loan Document, as
amended hereby.
8. ADDITIONAL LOAN FEE. Simultaneously with the
execution and delivery of this Amendment, in consideration of Lender's agreeing
to make the Additional Loan, Borrower shall pay to Lender, by wire transfer of
immediately available United States funds, the amount of $200,000.00 in cash.
9. REPRESENTATIONS AND WARRANTIES. Each of the Parties
hereby represents and warrants to Lender that, as of the date hereof:
(a) any and all representations and warranties
made by it in any of the 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 Loan Documents.
10. RATIFICATION. Each of the Parties hereby acknowledges
and agrees that the Original Loan, as increased as a result of the Additional
Loan and as amended hereby, shall be (i) evidenced by the Amended Original Note
and the Additional Note, (ii) guaranteed by the Amended Guaranty, (iii) secured
by the Amended Deposit Agreement, the Amended Custodial Agreement and the
Amended Pledge Agreements and (iii) advanced in accordance with the provisions
of the Amended Loan Agreement. The Parties agree that all of the terms,
covenants and conditions of the Original Note, the Original Guaranty, the
Original Deposit Agreement, the Original Custodial Agreement and the Original
Pledge Agreements remain in full force and effect and unmodified, except as
expressly amended and modified pursuant to, or as contemplated by, the
provisions of this Amendment.
11. FURTHER MODIFICATIONS. This Amendment may not be
modified, amended or terminated, except by an agreement in writing signed by
Lender and the Party(ies) against whom enforcement is sought.
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12. SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and inure to the benefit of the Parties and their respective
successors and assigns.
13. NOT A NOVATION. The Amended Original Note and this
Amendment constitute a modification of the Original Note, the Original Guaranty,
the Original Deposit Agreement, the Original Custodial Agreement and the
Original Pledge Agreements and are not intended to and shall not terminate or
extinguish any of the indebtedness or obligations thereunder, nor shall this
Amendment affect or impair the priority of any liens created thereby, it being
the intention of the Parties to carry forward all liens and security interests
securing payment of the Original Note, which liens and interests are
acknowledged by the Parties to be valid and subsisting against the Collateral.
Notwithstanding the foregoing, the Parties acknowledge that the principal amount
outstanding of the Amended Original Note is $48,500,000.
14. SEVERABILITY. If any term, covenant or provision of
this Amendment shall be held to be invalid, illegal or unenforceable in any
respect, this Amendment shall, at Lender's option, be construed without such
term, covenant or provision.
15. HEADINGS. 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.
16. COUNTERPARTS. This Amendment may be executed in one
or more counterparts by some or all of the Parties, each of which counterparts
shall be an original and all of which together shall constitute a single
agreement.
17. GOVERNING LAW. This Amendment 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.
(CONTINUED ON NEXT PAGE)
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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/ Xxxxxxxx Xxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
LFSRI II SPV REIT CORP.
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and 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
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial Officer
PROMETHEUS MID-ATLANTIC INVESTORS TRUST
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
PROMETHEUS SOUTHEAST RETAIL TRUST
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
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PROMETHEUS SOUTHEAST RETAIL LLC
By: LFSRI II SPV REIT CORP., its managing member
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial Officer
LFSRI II EXTENDED STAY L.L.C.
By: LFSRI II-CADIM ALTERNATIVE PARTNERSHIP L.P.,
its member
By: LAZARD FRERES REAL ESTATE INVESTORS
L.L.C., its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial
Officer
By: LF STRATEGIC REALTY INVESTORS II L.P.,
its member
By: LAZARD FRERES REAL ESTATE INVESTORS
L.L.C., its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial
Officer
By: LFSRI II ALTERNATIVE PARTNERSHIP L.P.,
its member
By: LAZARD FRERES REAL ESTATE INVESTORS
L.L.C., its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Principal and Chief Financial
Officer
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By: LFSRI II SPV E.S. CORP., its member
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President 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
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
FOR PURPOSES OF SECTIONS 4 & 5 HEREOF ONLY:
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.
By: _________________________________________________
Name:
Title:
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