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EXHIBIT 10.38
SECOND AMENDMENT TO LOAN AGREEMENT
AND REAFFIRMATION AGREEMENT
SECOND AMENDMENT TO LOAN AGREEMENT AND REAFFIRMATION AGREEMENT dated as
of April 7, 2000 (this "AMENDMENT") by and among ALS-VENTURE I, INC., a Delaware
corporation having an address c/o Alterra Healthcare Corporation, 10000
Innovation Drive, Milwaukee, Wisconsin 53226 (together with its permitted
successors and assigns, "BORROWER"); ALTERRA HEALTHCARE CORPORATION, a Delaware
corporation having an address at 10000 Innovation Drive, Milwaukee, Wisconsin
53226 (together with its permitted successors and assigns, the "GUARANTOR" and
"PARENT PLEDGOR", as applicable); ALS-CLARE BRIDGE, INC., a Delaware corporation
having an address at 10000 Innovation Drive, Milwaukee, Wisconsin 53226
(together with its permitted successors and assigns, "SUBSIDIARY PLEDGOR"); and
CAPMARK SERVICES, L.P., a Texas limited partnership having an address at 245
Peachtree Center Avenue, NE, Suite 1800, Atlanta, Georgia 30303-1231 (together
with its permitted successors and assigns, "Lender").
RECITALS
A. Borrower and Nomura Asset Capital Corporation
("NACC") entered into that certain Loan Agreement dated as of March 31, 1998, as
amended by that certain First Amendment to Loan Agreement and Reaffirmation
Agreement dated as of August 28, 1998 (as so amended, the "EXISTING LOAN
AGREEMENT") pursuant to which a secured mortgage loan in the original principal
amount of $50,140,000 (the "ORIGINAL LOAN") was advanced to Borrower. The
Original Loan is evidenced by that certain First Amended and Restated Promissory
Note with an effective date of March 31, 1998 in the original principal amount
of $50,140,000 made by Borrower and payable to NACC, (the "ORIGINAL NOTE").
B. Prior to the execution hereof, the Existing Loan
Agreement, the Original Loan and the Original Note were assigned (i) by NACC to
Wilmington Trust Company, in its capacity as Owner Trustee (the "OWNER TRUSTEE")
of CDC Mirror Trust ST-I 3/11/00 (formerly known as Nomura Mirror Trust ST-I
3/11/00), (ii) by Owner Trustee to LaSalle Bank N.A., as Trustee (the "TRUSTEE")
for CDC Depositor Trust ST I (formerly known as Nomura Depositor Trust ST I),
Commercial Mortgage Pass-Through Certificates, Series 1998-ST I and (iii) by
Trustee to Lender, each pursuant to a general assignment.
C. Borrower and Lender desire to amend the terms and
conditions of the Existing Loan Agreement in accordance with the terms hereof.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Existing Loan Agreement is hereby amended as follows:
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I. Modification of Existing Loan Agreement.
1. Section 1.1 of the Existing Loan Agreement is hereby amended
as follows:
A. The following definitions are hereby deleted in their
entirety: "Accrued Interest"; "Actual Prepayment Amount"; "Advance";
"Advisor"; "Amortizable Amount"; "Annual Operating Budget"; "Class B
Amount"; "Class B Equity Interests"; "Class C Amount"; "Class C Equity
Interests"; "Cut-Off Date"; "Defeasance Debt Service Coverage Ratio";
"Defeasance Deposit"; "Defeasance Release Date"; "Difference";
"Earn-Out Advance"; "Extra Funds"; "Final Locked Rate"; "Guaranty";
"Initial Interest Rate"; "Initial Securitization Expense Amount";
"NACC"; "Optional Prepayment Date"; "Preferred Cash Collateral
Account"; "Preferred Cash Collateral Bank"; "Preferred Cash Management
Agreement"; "Preferred Equity Holder"; "Recalculated Loan Amount";
"Request For Advance"; "Required Base Debt Service Payment"; "Revised
Interest Rate"; "Securitization Expense Sub-Account"; "Stabilization
Date"; "Stabilization Date Loan Amount"; "Stabilization Date Payment
Date"; "Stabilization Interest Rate"; "Stabilization Optimum Debt
Service Coverage Ratio"; "Ten Year Treasury Rate"; "Treasury Rate";
"Unpaid Excess Loan Amount"; "U.S. Obligations"; "Warrant"; and "Yield
Maintenance Premium". All references in the Existing Loan Agreement to
the aforementioned defined terms are hereby deleted.
B. The following definitions are hereby deleted in their
entirety and replaced with the following respective definitions:
(a) "Agreement" means the Loan Agreement dated as of
March 31, 1998 between Borrower and Nomura Asset
Capital Corporation, as amended by that certain First
Amendment to Loan Agreement and Reaffirmation
Agreement dated as of August 28, 1998, as further
amended by that certain Second Amendment to Loan
Agreement and Reaffirmation Agreement dated as of the
Effective Date between Borrower and Lender as the
same may be amended, restated, replaced,
supplemented, consolidated or otherwise modified from
time to time.
(b) "Base Payment" has the meaning provided in
Section 2.5(a).
(c) "Interest Rate" means for any Interest Accrual
Period, the Spread plus the greater of LIBOR for such
Interest Accrual Period and 4.95% (or, when
applicable pursuant to the Note or any other Loan
Document, the Default Rate).
(d) "Lender" means CapMark Services, L.P., together
with its successors and assigns.
(e) "Maturity Date" means December 11, 2001, as the
same may be extended to the Extended Maturity Date
pursuant to Section 2.16 hereof.
(f) "Maximum Facility Amount" means $50,140,000.
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(g) "Note" means that certain Second Amended and
Restated Renewal Promissory Note dated as of the
Effective Date in the stated principal amount of
$50,140,000, made by Borrower in favor of Lender, as
the same may be amended, restated, replaced,
supplemented, consolidated or otherwise modified from
time to time.
(h) "Parent" means Alterra Healthcare Corporation
(formerly known as Alternative Living Services,
Inc.).
(i) "Spread" means 2.50%.
C. The following definitions are hereby amended as
follows:
(a) The definition of "Allocated Loan Amount" is
hereby amended by (i) deleting the words "(i) prior
to the Stabilization Date," on the first line
thereof, (ii) deleting the words "and (ii) on and
after the Stabilization Date, the portion of the Loan
allocated to each Facility by Lender as determined by
Lender in its sole discretion, in each case," on the
third and fourth lines thereof and (iii) deleting the
words "(i) a regular monthly payment of principal
pursuant to Section 2.5(c)," on the sixth and seventh
lines thereof.
(b) The definition of "Cash Management Event" is
hereby amended by deleting therefrom clauses (v) and
(vii).
(c) The definition of "Manager" is hereby amended by
deleting therefrom the words "Alternative Living
Services, Inc." and replacing such words with the
words "Alterra Healthcare Corporation (formerly known
as Alternative Living Services, Inc.)". All
references in the Existing Loan Agreement to
Alternative Living Services, Inc. are hereby
similarly so amended.
(d) Clause (ii) of the definition of "Mortgage -
Borrower" is hereby amended by (i) inserting the
words "subsequent to Borrower acquiring a fee
interest in the Joint Venture Facility" after the
words "with respect to the Joint Venture Facility"
and (ii) deleting the words "(on the Stabilization
Date Payment Date)".
(e) The definition of "Permitted Transfers" is
hereby amended by replacing all references therein to
the "Stabilization Date" with the defined term
"Effective Date" (as defined below).
D. The following definitions are hereby added:
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(a) "Debt" means the unpaid Principal Indebtedness,
all interest accrued and unpaid thereon and all other
sums due to Lender in respect of the Loan, or under
any Loan Document.
(b) "Effective Date" means April 7, 2000.
(c) "Extended Maturity Date" shall have the meaning
given in Section 2.16.
(d) "LIBOR" means with respect to any Interest
Accrual Period, the rate per annum which is equal to
the 30 day U.S. Dollar London Interbank Offered Rate
reported from time to time by Telerate News Service
(page 3750), at approximately 11:00 a.m., London
time, on the related Determination Date. If such
interest rate shall cease to be available from
Telerate News Service, LIBOR shall be determined from
such financial reporting service as Lender shall
reasonably determine and use with respect to its
other loan facilities on which interest is determined
based on LIBOR. If two or more such rates appear on
Telerate page 3750 or associated pages, the rate in
respect of such Interest Accrual Period will be the
arithmetic mean of such offered rates, absent
manifest error. For purposes hereof, (i)
"DETERMINATION DATE" shall mean, with respect to any
Interest Accrual Period, the date which is two
Eurodollar Business Days prior to the 15th day of the
calendar month occurring during such Interest Accrual
Period; and (ii) "EURODOLLAR BUSINESS DAY" shall mean
any day other than a Saturday, Sunday or other day on
which banks in the City of London, England are closed
for interbank or foreign exchange transactions.
(e) "Original Interest Rate" shall mean a rate of
interest equal to 7.63% per annum.
2. The following Sections are hereby deleted in their entirety
from the Existing Loan Agreement: Sections 2.4(b); 2.6(f); 2.11(f)(iv);
2.11(f)(v); 2.11(f)(vi); 2.11(f)(vii); 2.11(g)(iv); 2.11(h); 3.2; 3.3; 8.32(a) -
(g); and 8.35.
3. Section 2.1 of the Existing Loan Agreement is hereby deleted
in its entirety and replaced with the following:
Section 2.1 The Loan. Borrower represents to Lender
that (i) as of the date hereof the outstanding
principal balance of the Original Loan is $50,140,000
(the "Loan"), (ii) there exists no claims by Borrower
against Lender or any holder of the Loan and (iii)
there are no offsets or defenses by Borrower to the
payment of any amounts required under the Loan
Documents or otherwise to enforcement by the holder
of the Loan. Lender shall have no further obligations
to provide any additional
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financing to Borrower and any amounts of the Loan
repaid may not be reborrowed.
4. Section 2.3 of the Existing Loan Agreement is hereby amended
by deleting the word "Guaranties" and replacing such word with the words
"Environmental Guaranty".
5. Sections 2.5(a) - (i) of the Existing Loan Agreement are
hereby deleted in their entirety and replaced with the following:
Section 2.5 Interest; Monthly Payments.
(a) Generally. From and after the date hereof,
interest on the unpaid Principal Indebtedness shall
accrue and be payable as hereinafter provided. On the
first Payment Date after the Effective Date (i.e.,
April 11, 2000), Borrower shall make a payment of
$329,433.73, representing interest calculated at the
Original Interest Rate on the outstanding Principal
Indebtedness which has accrued through the last day
of the Interest Accrual Period immediately preceding
such Payment Date. Commencing on the second Payment
Date after the Effective Date (i.e., May 11, 2000)
and each Payment Date thereafter through and
including the Maturity Date, Borrower shall pay
interest, calculated at the Interest Rate, on the
unpaid Principal Indebtedness which has accrued
through the last day of the Interest Accrual Period
immediately preceding such Payment Date (the "BASE
PAYMENT"). All accrued and unpaid interest shall be
due and payable on the Maturity Date.
(b) Default Rate. After the occurrence and during
the continuance of an Event of Default, the entire
unpaid Debt shall bear interest at the Default Rate,
and shall be payable upon demand from time to time,
to the extent permitted by applicable law. Payment or
acceptance of interest at the Default Rate is not a
permitted alternative to timely payment and shall not
constitute a waiver of any Default or Event of
Default or an amendment to this Agreement or any
other Loan Document and shall not otherwise prejudice
or limit any rights or remedies of Lender.
(c) Taxes. Any and all payments by Borrower
hereunder and under the other Loan Documents shall be
made free and clear of and without deduction for any
and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all
liabilities with respect thereto, excluding taxes
imposed on Lender's income, and franchise taxes
imposed on Lender by the law or regulation of any
Governmental Authority (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to in this
Section 2.5(c) as "APPLICABLE TAXES"). If Borrower
shall be required by law to deduct any Applicable
Taxes from or in respect of any sum payable
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hereunder to Lender, the following shall apply: (i)
the sum payable shall be increased as may be
necessary so that after making all required
deductions (including deductions applicable to
additional sums payable under this Section 2.5(c)),
Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii)
Borrower shall make such deductions and (iii)
Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in
accordance with applicable law. Payments pursuant to
this Section 2.5(c) shall be made within ten days
after the date Lender makes written demand therefor.
(d) Breakage Indemnity. Borrower shall indemnify
Lender against any loss or expense which Lender may
actually sustain or incur in liquidating or
redeploying deposits from third parties acquired to
effect or maintain the Loan or any part thereof as a
consequence of (i) any payment or prepayment of the
Loan or any portion thereof made on a date other than
a Payment Date and (ii) any default in payment or
prepayment of the Principal Indebtedness or any part
thereof or interest accrued thereon, as and when due
and payable (at the date thereof or otherwise, and
whether by acceleration or otherwise). Lender shall
deliver to Borrower a statement for any such sums
which it is entitled to receive pursuant to this
Section 2.5(d), which statement shall be binding and
conclusive absent manifest error.
(e) Computations. Interest payable hereunder or
under the Note shall be computed on the basis of the
actual number of days elapsed over a 360-day year.
(f) Late Payment Charge. If any Principal
Indebtedness, interest or other sum due under any
Loan Document is not paid by Borrower on the date on
which it is due, and the same remains unpaid after
the expiration of any applicable cure period, if any,
Borrower shall pay to Lender upon demand an amount
equal to the lesser of 5% of such unpaid sum or the
maximum amount permitted by applicable law, in order
to defray the expense incurred by Lender in handling
and processing such delinquent payment and to
compensate Lender for the loss of the use of such
delinquent payment. Such amount shall be secured by
the Loan Documents.
(g) Maturity Date. Borrower shall repay the entire
outstanding principal balance of the Note in full on
the Maturity Date, together with interest thereon to
(but excluding) the date of repayment and any other
amounts due and owing under the Loan Documents.
6. Section 2.6(a) of the Existing Loan Agreement is hereby
amended by (i) deleting the words "On or after the earlier to occur of (i) the
Optional Prepayment Date or (ii)" and (ii)
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deleting the words "(but not Accrued Interest or interest thereon) to pay
Accrued Interest and interest thereon".
7. Section 2.6(c) of the Existing Loan Agreement is hereby
deleted in its entirety and replaced with the following:
(c) Borrower shall have the right to prepay all or
any portion of the Principal Indebtedness on any
Payment Date provided that Borrower gives Lender at
least 15 days prior written notice thereof. If any
such prepayment is not made on a Payment Date,
Borrower shall also pay interest that would have
accrued on such prepaid Principal Indebtedness to but
not including the next Payment Date.
8. Section 2.7 of the Existing Loan Agreement is hereby amended
by (i) deleting the words "at the Initial Interest Rate" on the sixth line
thereof and replacing such words with the words "at the Interest Rate" and (ii)
deleting the words "to Accrued Interest and interest thereon; and fifth," on the
seventh and eighth lines thereof.
9. Section 2.10 of the Existing Loan Agreement is hereby deleted
in its entirety and replaced with the following:
Section 2.10 Release of Properties. Lender shall,
upon the written request and at the expense of
Borrower, upon payment in full of the Debt in
accordance herewith, release or, if requested by
Borrower, assign to Borrower's designee (without any
representation or warranty by and without any
recourse against Lender whatsoever), the Liens of the
Loan Documents if not theretofore released.
10. Section 2.11(a) of the Existing Loan Agreement is hereby
amended by replacing all references therein to the "Stabilization Date" with the
defined term "Effective Date".
11. Section 2.11(g)(v) of the Existing Loan Agreement is hereby
amended by deleting the words "during each of the following periods: (i) any
period in which the Preferred Equity Holder is an equity holder in Borrower and
(ii) on and after the Optional Prepayment Date, or".
12. Section 2.11(g)(vi) of the Existing Loan Agreement is hereby
amended by (i) deleting the reference to clause (iv) from the sixth line and the
nineteenth line thereof, (ii) deleting the words "to the Preferred Cash
Collateral Account (if the Preferred Equity Holder is an equity holder in
Borrower) or if the Preferred Equity Holder is not an equity holder in the
Borrower," beginning on the twelfth line thereof and (iii) deleting the words
"on or after the Optional Prepayment Date" on the seventeenth line thereof.
13. Section 2.12(b) of the Existing Loan Agreement is hereby
amended by replacing all references therein to the "Stabilization Date" with the
defined term "Effective Date".
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14. Section 2.15 of the Existing Loan Agreement is hereby amended
by replacing all references therein to the "Stabilization Date" with the defined
term "Effective Date".
15. Section 5.1(p) of the Existing Loan Agreement is hereby
amended by (i) replacing all references therein to the "Stabilization Date" with
the defined term "Effective Date", (ii) deleting clause (v) therefrom and (iii)
deleting the words "defeases" on the twenty third line thereof and replacing
such word with the word "prepays".
16. Section 5.1(q)(x) of the Existing Loan Agreement is hereby
amended by deleting the parenthetical language from the third through sixth
lines thereof.
17. Section 8.6 of the Existing Loan Agreement is hereby amended
(i) to provide that notices to Lender should be sent to CapMark Services, L.P.,
245 Peachtree Center Avenue N.E., Suite 1800, Atlanta, Georgia 30303-1231,
Attention Katherine M. Saathoff, Vice President, Telecopier (404) 654-2726, with
copies to: CDC Mortgage Capital Inc., 9 West 57th Street, 36th Floor, New York,
New York 10019; Attention: Real Estate Administration (Gary DiGiuseppe),
Telecopier (212) 891-6851 and with copies to: Kaye, Scholer, Fierman, Hays &
Handler, LLP, 425 Park Avenue, New York, New York 10022, Attention: Stephen
Gliatta, Telecopier: (212) 836-8689, (ii) by deleting the words "Alternative
Living Services, Inc., 1201 Pacific Avenue, Suite 1800" and replacing such words
with the words "Alterra Healthcare Corporation, 1142 Broadway Plaza, Suite 300"
and (iii) by deleting the words "Alternative Living Services, Inc., 450 North
Sunnyslope Road, Suite 300, Brookfield, Wisconsin 53005, Telefax Number
(414)789-6182" and replacing such words with the words "Alterra Healthcare
Corporation, 10000 Innovation Drive, Milwaukee, Wisconsin 53226, Telefax Number
(414) 918-5055".
18. Section 8.14 of the Existing Loan Agreement is hereby amended
by deleting the last sentence thereof.
19. Section 8.32(h) of the Existing Loan Agreement is hereby
amended by deleting the words "On the Stabilization Date Payment Date" and
replacing such words with the words "Within thirty (30) days after written
request by Lender".
20. Section 8.34(a) of the Existing Loan Agreement is hereby
deleted in its entirety and replaced with the following:
(a) Transfers of Equity Interests in Operators and
Joint Venture. The parties hereto acknowledge that
the Parent currently owns interests in the Operators
and Joint Venture and that the Subsidiary has
acquired the remaining interests in the Operators
(except the Operators of the residences located in
Marion, Indiana and Alliance, Ohio) and the Joint
Venture, such that the Parent and the Subsidiary own
100% of the Operators (except the Operators of the
residences located in Marion, Indiana and Alliance,
Ohio) and the Joint Venture. The Parent and
Subsidiary each covenant (A) to cause the Subsidiary
to acquire all of the
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interests not owned by the Parent in the Operators of
the residences located in Marion, Indiana and
Alliance, Ohio no later than December 31, 2000 and
(B) provide Lender with five (5) days written notice
before the consummation of the acquisition of any
such interests.
21. The following Section 2.16 is hereby added at the end of
Article 2 of the Existing Loan Agreement.
2.16 Extension Option. Borrower shall have the right, at
is option, to extend the term of the Loan until December 11,
2002 (the "EXTENDED MATURITY DATE") by giving notice of such
extension to Lender at least 15 days prior to the originally
scheduled Maturity Date. Upon receipt of such request to
extend the term of the Loan until the Extended Maturity Date,
Lender will promptly confirm to Borrower in writing that the
Maturity Date will be so extended, upon the satisfaction of
the following conditions:
(a) no Event of Default exists at the time such
request is made and on the originally scheduled
Maturity Date;
(b) Borrower delivers to Lender an Officer's
Certificate confirming the accuracy of the
information contained in clause (a) above;
(c) on or prior to the originally scheduled Maturity
Date, Borrower either (i) extends the term of the
Interest Rate Protection Agreement (as defined in
Section 2.17) to a date not earlier than the Extended
Maturity Date, or (ii) enters into a new interest
rate protection agreement on the same terms set forth
in Section 2.17 which expires no earlier than the
Extended Maturity Date and which has the effect of
capping LIBOR at 8.83% per annum;
(d) the Debt Service Coverage Ratio shall be at
least equal to the Debt Service Coverage Ratio on the
Effective Date; and
(e) Borrower shall pay to Lender on or before the
Extended Maturity Date, an extension fee in an amount
equal to 1.00% of the then outstanding Principal
Indebtedness.
If Borrower is unable to satisfy all of the foregoing
conditions within the applicable time frames for
each, Lender shall have no obligation to extend the
Stated Maturity Date hereunder.
22. The following Section 2.17 is hereby added at the end of
Article 2 of the Existing Loan Agreement.
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2.17 Interest Rate Protection Agreements. As of the date
hereof, Borrower has entered into, made all payments required
under, and satisfied all conditions precedent to the
effectiveness of, an interest rate protection agreement that
satisfies all of the following conditions. (such interest rate
protection agreement together with (i) any extension or
modification thereof (including pursuant to Section 2.16(c))
or (ii) any other interest rate protection agreement entered
into pursuant to Section 2.16(c) being referred to herein as
the "INTEREST RATE PROTECTION AGREEMENT"):
(a) the Interest Rate Protection Agreement is with a
financial institution having a long term, unsecured
and unsubordinated debt rating of at least "AA" by
S&P and "Aa2" by Moody's; has a term ending no
earlier than the Maturity Date; is an interest rate
cap in respect of a notional amount not less than the
maximum principal amount of the Loan that shall have
the effect of capping LIBOR at 8.83% per annum; and
provides that the only obligation of Borrower
thereunder is the making of a single payment upon the
execution and delivery thereof.
(b) Borrower's interest in such Interest Rate
Protection Agreement has been assigned to Lender
pursuant to documentation satisfactory to Lender in
form and substance, and the counterparty to such
Interest Rate Protection Agreement has executed and
delivered to Lender an acknowledgment of such
assignment, which acknowledgment includes such
counterparty's agreement to pay directly to Lender
all sums payable by such counterparty pursuant to the
Interest Rate Protection Agreement and shall
otherwise be satisfactory to Lender in form and
substance.
(c) Notwithstanding anything in this Section 2.17 to
the contrary, prior to purchasing an Interest Rate
Protection Agreement, Borrower shall notify CDC
Mortgage Capital Inc. of its intention to purchase
such Interest Rate Protection Agreement, which notice
may be telephonic and shall contain the name of the
proposed financial institution and the price and
other applicable terms relating to the proposed
Interest Rate Protection Agreement. Upon receipt of
such notice, CDC Mortgage Capital Inc. or its
Affiliate shall have the right to provide an Interest
Rate Protection Agreement to Borrower at the same (or
lower) price and upon substantially the same terms
and conditions applicable to the proposed Interest
Rate Protection Agreement with such other financial
institution and Borrower hereby agrees to promptly
enter into same with CDC Mortgage Capital Inc. or its
Affiliate. If CDC Mortgage Capital Inc. or its
Affiliate does not elect to provide such Interest
Rate Protection Agreement to Borrower as provided in
the preceding sentence, Borrower may purchase the
Interest Rate Protection Agreement from any financial
institution having a rating of at least that
specified in Section 2.17(a) above at the same (or
lower) price and upon substantially the same terms
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and conditions applicable to the proposed Interest
Rate Protection Agreement first offered to CDC
Mortgage Capital Inc.
(d) Borrower agrees that Lender shall not have any
obligation, duty or responsibility to Borrower or any
other Person by reason of, or in connection with, any
Interest Rate Protection Agreement (including any
duty to provide or arrange any Interest Rate
Protection Agreement, to consent to any mortgage or
pledge of the Properties or any portion thereof as
security for Borrower's performance of its
obligations under any Interest Rate Protection
Agreement, or to provide any credit or financial
support for the obligations of Borrower or any other
Person thereunder or with respect thereto). No
Interest Rate Protection Agreement shall alter,
impair, restrict, limit or modify in any respect the
obligation of Borrower to pay interest on the Loan as
and when the same becomes due and payable in
accordance with the provisions of the Loan Documents.
(e) All amounts received by Lender from payments
made by the counterparty to the Interest Rate
Protection Agreement shall be deposited into the
Collection Account and applied in the same manner as
repayments hereunder.
II. Representations. Borrower hereby represents and warrants to Lender as
of the date hereof as follows:
1. Authorization and Power. Borrower has the power and requisite
authority to execute, deliver and perform its obligations under this Amendment
and any other document executed in connection herewith and is duly authorized
to, and has taken all action necessary to authorize it to, execute, deliver and
perform its obligations under this Amendment.
2. Valid and Binding Obligations. This Amendment constitutes
legal, valid and binding obligations of Borrower enforceable in accordance with
its terms.
3. Consents, Etc. No consent, approval, authorization or order of
any court or Governmental Authority or any third party is required in connection
with the execution and delivery by Borrower of this Amendment or to consummate
the transactions contemplated hereby, which consent has not been obtained.
4. No Offsets; Defenses. There are no existing claims by Borrower
against Lender and there are no offsets or defenses by Borrower to the payment
of any amounts required under the Loan Documents or otherwise to the enforcement
by Lender of the Loan Documents.
III. Reaffirmation. Each of Borrower, Guarantor, Parent Pledgor and
Subsidiary Pledgor hereby ratifies and reaffirms the obligations,
waivers, indemnities and covenants made
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under the Loan Documents to which each is bound (except with respect to
the Guaranty, which is being terminated as of the date hereof).
IV. Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
V. Ratification. Each of the Existing Loan Agreement (as amended hereby),
the Environmental Indemnity Agreement and the Equity Pledge Agreements
are hereby ratified and confirmed and shall continue in full force and
effect.
VI. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall
constitute one original.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
BORROWER:
ALS-VENTURE I, INC.
By: /s/ David Boitano
---------------------------------
Name: David Boitano
Title: Vice President
GUARANTOR/PARENT PLEDGOR:
ALTERRA HEALTHCARE CORPORATION
By: /s/ David Boitano
---------------------------------
Name: David Boitano
Title: Senior Vice President
SUBSIDIARY PLEDGOR:
By: /s/ David Boitano
---------------------------------
Name: David Boitano
Title: Vice President
LENDER:
CAPMARK SERVICES, L.P.
By: Pearl Mortgage, Inc., a Delaware corporation,
general partner
By: /s/ Katherine M. Saathoff
-----------------------------
Name: Katherine M. Saathoff
Title: Vice President
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ACKNOWLEDGEMENT
The undersigned Owner Trustee hereby acknowledges to the terms of the foregoing.
Wilmington Trust Company, in its capacity as Owner Trustee of CDC Mirror Trust
ST-I 3/11/00 (formerly known as Nomura Mirror Trust ST-I 3/11/00)
By: /s/ David A. Vanaskey, Jr.
----------------------------
David A. Vanaskey, Jr.
Assistant Vice President
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