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Exhibit 10.15
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED NOTE
AGREEMENT (this "Amendment"), dated as of December 4, 1997, 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
(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;
Whereas, the Company desires to enter into a Loan and Security
Agreement dated as of December 4, 1997 with Fleet Capital Corporation pursuant
to which the Company will replace the New Credit Line (as defined in the Senior
Credit Agreement) with a credit line of up to $20,000,000 (the "Fleet Credit
Facility");
Whereas, the Company has requested that the Majority Noteholders
amend the Senior Credit Agreement to reflect the replacement of the new credit
line with the Fleet Credit Facility; and
Whereas, the Majority Noteholders are willing to accommodate the
Company's requests on the terms and conditions set forth in this Amendment.
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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 1.60 of the
Senior Credit Agreement is hereby amended to read in full as follows:
1.60 "New Credit Line" means the line of credit provided
to the Company pursuant to the Loan and Security Agreement dated as of
December 4, 1997 between the Company and Fleet Capital Corporation, as
the same may be amended, modified, renewed, refunded, replaced or
refinanced from time to time, in whole or in part; provided, that the
principal amount outstanding thereunder does not exceed $20,000,000.
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 and the incurrence of the Indebtedness under the Fleet Credit
Facility, no Default or Event of Default shall have occurred or be continuing.
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 supersede all prior or contemporaneous negotiations, promises,
covenants, agreements or representations of every nature whatsoever with respect
thereto, all of which become merged and finally integrated into this Amendment.
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6. Additional Assurances. The Company agrees that it will execute
such other documents or instruments as may reasonably be necessary or convenient
to carry out and effectuate the purpose and terms of this Amendment
7. 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.
8. 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.
9. 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.
10. 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:
GATEWAY RECOVERY TRUST
By: ________________________
Name:
Title:
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WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST
By: TCW Special Credits,
Its Investment Advisor
By: TCW Asset Management Company
its Managing General Partner
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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:
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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:
TCW SPECIAL CREDITS TRUST IV
By: Trust Company of the West, Trustee
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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TCW SPECIAL CREDITS TRUST IVA
By: Trust Company of the West, Trustee
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
OCM REAL ESTATE OPPORTUNITIES FUND A, L.P.
By: Oaktree Capital Management, LLC,
Its General Partner
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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OCM REAL ESTATE OPPORTUNITIES FUND B, L.P.
By: Oaktree Capital Management, LLC,
Its General Partner
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
WEYERHAEUSER REAL ESTATE OPPORTUNITIES SEPARATE ACCOUNT
By: Oaktree Capital Management, LLC,
Its Investment Advisor
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
