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EXHIBIT 10.17
THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED NOTE AGREEMENT DATED MAY 1,
1998, BY AND AMONG THE PEREGRINE REAL ESTATE TRUST, THE NOTEHOLDERS NAMED
THEREIN, AND THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AS AGENT FOR THE
NOTEHOLDERS
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THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED NOTE AGREEMENT
(this "Amendment"), dated as of May 1, 1998, is made by and among The Peregrine
Real Estate Trust, formerly known as Commonwealth Equity Trust (the "Company");
each of the noteholders party to the Senior Credit Agreement (as defined below)
(individually, a "Noteholder" and, collectively, the "Noteholders"); and The
Prudential Insurance Company of America, as Agent for the Noteholders (in such
capacity, together with its successors in such capacity, the "Agent").
R E C I T A L S
Whereas, the Company, the Agent and the Noteholders are parties to
the Second Amended and Restated Note Agreement dated as of September 27, 1994
(as amended, the "Senior Credit Agreement");
Whereas, the Senior Credit Agreement permits the Company to incur
certain additional indebtedness, subject to the terms and conditions of the
Senior Credit Agreement, including the New Credit Line;
Whereas, it was not the intent of the Company and the Noteholders to
require that the proceeds of the New Credit Line be used to prepay the Notes;
Whereas, the Company and the Noteholders wish to make a
clarification change to the Senior Credit Agreement;
The Company, the Agent and the Majority Noteholders agree as
follows:
1. Defined Terms. Capitalized terms used but not defined in this
Amendment shall have the meanings assigned to such terms in the Senior Credit
Agreement.
2. Amendment to Senior Credit Agreement. Section 2.4(b) of the
Senior Credit Agreement is hereby amended by adding the parenthetical "(other
than the New Credit Line)" in clause (D) of such section, immediately following
the word "Collateral".
3. Representations and Warranties. The Company represents and
warrants to the Majority Noteholders that (a) the execution, delivery and
performance of this Amendment have been duly authorized by all necessary
corporate action by the Company; (b) this Amendment constitutes the legal, valid
and binding obligation of the Company; and (c) prior to and after giving effect
to this Amendment no Default or Event of Default shall have occurred or be
continuing.
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4. Effect of Amendment. The Senior Credit Agreement is modified only
by the express provisions of this Amendment, and shall otherwise remain in full
force and effect and is hereby ratified and confirmed by the Company in all
respects.
5. Entire Agreement. This Amendment constitutes the complete
agreement of the parties with respect to the subject matters referred to in this
Amendment and supersedes all prior or contemporaneous negotiations, promises,
covenants, agreements or representations of every nature whatsoever with respect
to such subject matters, all of which become merged and finally integrated into
this Amendment.
6. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties to this Amendment and their respective
successors and permitted assigns.
7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA AND OF ANY CALIFORNIA STATE COURT SITTING IN LOS ANGELES,
CALIFORNIA, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT. EACH OF
THE PARTIES TO THIS AMENDMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
8. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AMENDMENT
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Amendment may execute this Amendment
by signing any such counterpart.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
COMPANY
THE PEREGRINE REAL ESTATE TRUST,
(fka Commonwealth Equity Trust)
By: ______________________________________
Name:
Title:
AGENT
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as Agent
By: ______________________________________
Name:
Title:
NOTEHOLDERS
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: ______________________________________
Name:
Title:
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GATEWAY RECOVERY TRUST
By: The Prudential Insurance Company of
America, Asset Manager
By: ______________________________________
Name:
Title:
WEYERHAEUSER COMPANY MASTER RETIREMENT
TRUST
By: TCW Special Credits,
Its Investment Manager
By: TCW Asset Management Company, its
Managing General Partner
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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TCW SPECIAL CREDITS FUND IV
By: TCW Special Credits,
Its General Partner
By: TCW Asset Management Company, its
Managing General Partner
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
TCW SPECIAL CREDITS PLUS FUND
By: TCW Special Credits,
Its General Partner
By: TCW Asset Management Company, its
Managing General Partner
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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TCW SPECIAL CREDITS TRUST IV
By: Trust Company of the West, Trustee
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
TCW SPECIAL CREDITS TRUST IVA
By: Trust Company of the West, Trustee
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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OCM REAL ESTATE OPPORTUNITIES
FUND A, L.P.
By: Oaktree Capital Management, LLC, Its
General Partner
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
OCM REAL ESTATE OPPORTUNITIES
FUND B, L.P.
By: Oaktree Capital Management, LLC, Its
General Partner
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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WEYERHAEUSER REAL ESTATE OPPORTUNITIES
SEPARATE ACCOUNT
By: Oaktree Capital Management, LLC,
Its Investment Manager
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
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