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Exhibit 10.2
SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT AND CONSENT
THIS SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT AND CONSENT (this "AMENDMENT"), dated as of June 1, 2000, is made
by and among The Peregrine Real Estate Trust, formerly known as Commonwealth
Equity Trust and d.b.a. WinShip Properties (the "COMPANY") and each of the
noteholders party to the Senior Credit Agreement (as defined below)
(individually, a "NOTEHOLDER" and, collectively, the "NOTEHOLDERS").
R E C I T A L S
WHEREAS, the Company and the Noteholders are parties to the Second Amended and
Restated Note Agreement dated as of September 27, 1994 (as amended by that
certain First Amendment dated as of February 16, 1995, Second Amendment dated as
of December 4, 1997, Third Amendment dated as of May 1, 1998, Fourth Amendment
dated as of June 30, 1998 and Fifth Amendment dated as of February 15, 1999, the
"SENIOR CREDIT AGREEMENT"); and
WHEREAS, the Noteholders wish to amend the Senior Credit Agreement upon the
terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Noteholders agree to amend
the Senior Credit Agreement as follows:
DEFINED TERMS. Capitalized terms used but not defined in this Amendment
shall have the meanings assigned to such terms in the Senior Credit
Agreement.
AMENDMENT TO SECTION 2.3(B) OF THE SENIOR CREDIT AGREEMENT. SECTION 2.3(B)
of the Senior Credit Agreement is hereby amended to read in its entirety as
follows:
"(b) Payment of Interest; Interest Deferral Notes. Interest on
the Notes is payable quarterly commencing October 1, 1994. Interest
shall be computed on the basis of a 360 day year/actual days elapsed.
If (i) Company does not achieve positive Net Cash Flow for the most
recent three month consecutive period of the Company for which
financial statements are available preceding the applicable interest
payment date or (ii) the Company is otherwise prohibited from making
an interest payment on the Notes pursuant to the provisions of SECTION
7.12 of the New Credit Line as in effect on the date hereof, the
Company shall, and at any other time, at the option of the Company,
the Company may, in lieu of paying interest on the Notes in cash,
execute and deliver to each Noteholder on or before any interest
payment date, one or more promissory notes in the form of the
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promissory note attached hereto as EXHIBIT C (each of which shall be
an "Interest Deferral Note") in a principal amount equal to the sum of
interest due to such Noteholder on such interest payment date and
maturing on the Maturity Date. Each Interest Deferral Note shall bear
interest at a rate of 8.5% per annum and, on overdue payments, at the
Default Rate as provided in SECTION 2.3(D). If, upon occurrence of the
events set forth in this SECTION 2.3(b), Company delivers Interest
Deferral Notes to any Noteholder, Company shall deliver Interest
Deferral Notes to all Noteholders and shall not pay cash interest to
any Noteholder."
FORM OF INTEREST DEFERRAL NOTE. The Form of Interest Deferral Note attached
to the Senior Credit Agreement as Exhibit C shall be amended to read in its
entirety as set forth in Annex A attached hereto.
REPRESENTATIONS AND WARRANTIES. Each of the parties hereto represents and
warrants that (a) the execution, delivery and performance of this Amendment
have been duly authorized by all necessary corporate action on behalf of
such party and (b) this Amendment constitutes the legal, valid and binding
obligation of such party. The Company represents and warrants to the
Noteholders that prior to and after giving effect to this Amendment, no
Default or Event of Default has or shall have occurred and be continuing.
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.
WAIVER OF SHAREHOLDER AND TRUSTEE LIABILITY. This Amendment is made by the
undersigned, not individually, but in his capacity as Chief Executive
Officer of the Company and Trustee under that certain Restated Declaration
of Trust of the Company, and is hereby made a part hereof, and is
enforceable only against, and is payable out of, the Company property held
thereunder, and any and all personal liability of the Trustees, their duly
authorized agents, and the shareholders of the Company is expressly waived.
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.
ADDITIONAL ASSURANCES. The parties agree that they shall take such actions
and execute and deliver such documents as are reasonably required to
effectuate the purposes of this Amendment, including, without limitation,
executing and delivering such reconveyance and termination documentation as
is required to release any and all liens securing the obligations under the
Senior Credit Agreement.
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.
GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
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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.
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.
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,
(aka Commonwealth Equity Trust, and d.b.a.
WinShip Properties)
By: /s/ ROGER D. SNELL
-------------------------------------
Name: Roger D. Snell
Title: President and Chief Executive
Officer
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NOTEHOLDERS
TCW SPECIAL CREDITS FUND IV
By: TCW Special Credits,
Its: General Partner
By: TCW Asset Management Company,
Its: Managing General Partner
By: /s/ RICHARD MASSON
--------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ MATTHEW S. BARRETT
--------------------------------------
Name: Matthew S. Barrett
Title: Authorized Signatory
TCW SPECIAL CREDITS PLUS FUND
By: TCW Special Credits,
Its: General Partner
By: TCW Asset Management Company,
Its: Managing General Partner
By: /s/ RICHARD MASSON
---------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ MATTHEW S. BARRETT
---------------------------------------
Name: Matthew S. Barrett
Title: Authorized Signatory
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TCW SPECIAL CREDITS TRUST IV
By: Trust Company of the West, Trustee
By: /s/ RICHARD MASSON
--------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ MATTHEW S. BARRETT
---------------------------------------
Name: Matthew S. Barrett
Title: Authorized Signatory
TCW SPECIAL CREDITS TRUST IVA
By: Trust Company of the West, Trustee
By: /s/ RICHARD MASSON
--------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ MATTHEW S. BARRETT
---------------------------------------
Name: Matthew S. Barrett
Title: Authorized Signatory
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OCM REAL ESTATE OPPORTUNITIES FUND A, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ RICHARD MASSON
---------------------------------
Name: Richard Masson
Title: Principal
By: /s/ LISA ARAKAKI
--------------------------------
Name: Lisa Arakaki
Title: Assistant Vice President-
Legal
OCM REAL ESTATE OPPORTUNITIES FUND B, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ RICHARD MASSON
---------------------------------
Name: Richard Masson
Title: Principal
By: /s/ LISA ARAKAKI
--------------------------------
Name: Lisa Arakaki
Title: Assistant Vice President-
Legal
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GRYPHON DOMESTIC VII, LLC SEPARATE ACCOUNT
By: Oaktree Capital Management, LLC
Its: Investment Manager
By: /s/ RICHARD MASSON
---------------------------------
Name: Richard Masson
Title: Principal
By: /s/ LISA ARAKAKI
--------------------------------
Name: Lisa Arakaki
Title: Assistant Vice President-
Legal
WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST
By: TCW Special Credits,
Its: Investment Manager
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ RICHARD MASSON
---------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ MATTHEW S. BARRETT
---------------------------------
Name: Matthew S. Barrett
Title: Authorized Signatory
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