Exhibit 10.2
EXECUTION
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FIRST AMENDMENT
TO
MASTER LOAN AND SECURITY AGREEMENT
FOR A CREDIT FACILITY
IN AN AMOUNT UP TO $300,000,000
Dated as of March 30, 1999
Between
CAPITAL TRUST, INC.
as Borrower
and
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Lender
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TABLE OF CONTENTS
Page
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1. Amendments............................................................1
2. Representations and Warranties........................................4
3. Ratification, Confirmation and Assumption.............................4
4. Amendment to Pledge Agreements and Related Documents..................5
5. Binding Effect; No Partnership; Counterparts..........................5
6. Further Agreements....................................................5
7. Governing Law.........................................................5
8. Continuing Effect.....................................................5
9. Conditions Precedent..................................................6
EXHIBIT A Form of Amended and Restated Promissory Note
EXHIBIT C Form of Opinion of Counsel of Borrower
EXHIBIT F Form of Bailee Agreement
EXHIBIT G Schedule of Collateral Pledged Prior to March 30, 1999
Schedule 1 - Schedule of Pending Litigation
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FIRST AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT dated as of
March 30, 1999 (this "Amendment No. 1") between CAPITAL TRUST, INC., a Maryland
corporation ("Borrower"), and XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a New York
corporation ("Lender") to Master Loan and Security Agreement dated as of June 8,
1998 (the "Original Loan and Security Agreement") between Capital Trust, a
California business trust (a predecessor-in-interest of Borrower, hereinafter
"Predecessor Borrower") and Lender. Capitalized terms used herein without
definition have the meanings given to them in the Original Loan and Security
Agreement. The Original Loan and Security Agreement, as amended by this
Amendment No. 1, and as from time to time amended, modified, extended, and
supplemented, is hereinafter referred to as the "Loan and Security Agreement."
PRELIMINARY STATEMENT
Pursuant to the Original Loan and Security Agreement Lender may make
loans to fund Borrower's acquisition of Eligible Collateral from time to time
subject to the terms and conditions of the Original Loan and Security Agreement.
Lender and Borrower desire to amend the Original Loan and Security Agreement in
order to make certain additional arrangements regarding, among other things, the
extension of the term of the Original Loan and Security Agreement, limitations
on the amounts which may be borrowed against Eligible Collateral, the timing of
the repayment of amounts due and owing to Lender, the applicable rates of
interest to be paid on such borrowed amounts and the addition of certain
conditions regarding the financial status of Borrower.
In addition, Borrower has advised Lender that (i) Predecessor Borrower
has entered into, and merged with and into, Captrust Limited Partnership, a
Maryland limited partnership, (ii) Captrust Limited Partnership has survived
such merger and subsequently has merged with and into Borrower, and (iii)
Borrower has survived such subsequent merger with Captrust Limited Partnership.
In connection therewith, the parties desire that Borrower ratify, confirm, and
assume all liabilities of the borrower under the Original Loan and Security
Agreement, as amended hereby, the Note and the other Loan Documents.
Now, therefore, the parties hereto agree as follows:
1. Amendments. The Original Loan and Security Agreement is hereby amended as
follows:
(a) Defined terms. Subsection 1.01 of the Original Loan and Security
Agreement is hereby amended by (i) the addition of the following capitalized
terms which shall have the respective meanings set forth below:
"Amortization Period" means, if the Termination Date shall be extended
in accordance with the terms hereof, the period from and after July 1, 2000 to,
and including, April 1, 2001.
"Cash" means, at the date of determination, any and all cash and cash
equivalents as determined in accordance with GAAP.
"CMBS Loan Agreement" means that certain CMBS Loan Agreement dated as
of June 30, 1998 between Capital Trust and Lender, as may be amended,
supplemented or otherwise modified and in effect from time to time.
"Borrower" means Capital Trust, Inc., a Maryland corporation.
"Liquidity" means, at the date of determination, all Cash and amounts
available to be drawn by Borrower within three (3) days after notice under
secured and unsecured lines of credit (excluding amounts available to be drawn
hereunder or under the CMBS Loan Agreement).
and
(ii) the deletion in their entirety of the respective meanings for the following
capitalized terms in the Original Loan and Security Agreement and the
substitution therefor of the respective meanings set forth below:
"Eurodollar Rate Spread" means (A) with respect to each item of Eligible
Collateral pledged to Lender before March 30, 1999 and set forth on Exhibit G
attached hereto, for the period to, and including, December 8, 1999, as to each
Advance Rate the applicable Eurodollar Rate Spread set forth below opposite such
Advance Rate for the applicable Collateral type, or such other Eurodollar Rate
Spread as may be mutually agreed to by Borrower and Lender:
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Collateral Type Advance Rate Eurodollar Rate Spread (expressed
as percentage points per annum
and as basis points)
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Subordinate Mortgage Loans, Mezzanine 65% 1.75% 175bp
Loans, CMBS and Equity Interests 75% 1.85% 185bp
80% 2.20% 220bp
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(B) with respect to each item of Eligible Collateral pledged to Lender
(i) before March 30, 1999 and set forth on Exhibit G attached hereto, for the
period from and after December 9, 1999 to, and including the date the Loans are
repaid in full (except as provided in clause (C) below), and (ii) from and after
March 30, 1999, for the period from and after the date of such pledge to, and
including, the date the Loans are repaid in full (except as provided in clause
(C) below), as to each Advance Rate the applicable Eurodollar Rate Spread set
forth below opposite such Advance Rate for the applicable Collateral type, or
such other Eurodollar Rate Spread as may be mutually agreed to by Borrower and
Lender:
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Collateral Type Advance Rate Eurodollar Rate Spread (expressed
as percentage points per annum
and as basis points)
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Conduit Loan 90% 1.25% 125bp
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Non-Conduit Mortgage Loans
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First Mortgage (75% LTV maximum) 85% 1.75% 175bp
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Subordinate Mortgage Loans, Mezzanine
Loans, CMBS and Equity Interests*
70% 2.25% 225bp
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* Solely for illustrative purposes, Borrower and Lender agree that the
following example of a transaction illustrates their intent: with respect to
an item of Collateral for which the appraised value of the underlying real
property is $100,000,000, on which Mortgage Loans and Mezzanine Loans have
been made in the aggregate amount of $85,000,000, with Lender advancing
hereunder 85% of a 75% LTV ($63,750,000), plus 70% of a subordinate Mortgage
Loan or Mezzanine Loan (70% of $10,000,000 equals $7,000,000), the aggregate
loans from Lender to Borrower would equal $70,750,000, resulting in a 83.24%
underlying loan-to-loan value. In addition, Lender will finance loans
originated by Borrower with an aggregate underlying LTV up to 90% and above
90% on a case-by-case basis. The Eurodollar Rate Spread may exceed the
levels set forth above on loans with underlying LTVs in excess of 90%.
and (C) with respect to each item of Eligible Collateral, in the event the
Termination Date shall be extended pursuant to the terms hereof, for the period
from and after July 1, 2000 to, and including, the date the Loans are repaid in
full, as to each Advance Rate the sum of (x) the applicable Eurodollar Rate
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Spread set forth opposite such Advance Rate for the applicable Collateral type
in clause (B) above, plus (y) .25 percent, or 25 basis points, per annum.
"Note" shall mean the promissory note provided for by Section 2.02(a)
hereof for Loans and any promissory note delivered in substitution or exchange
therefor, in each case as the same shall be modified, amended, supplemented or
extended and in effect from time to time including, without limitation, that
certain Amended and Restated Promissory Note dated as of June 8, 1998 by
Borrower to Lender given in substitution for, and replacement of, that certain
promissory note dated June 8, 1998 by Capital Trust to Lender.
"Termination Date" shall mean June 30, 2000 or such earlier date on
which this Loan Agreement shall terminate in accordance with the provisions
hereof or by operation of law; provided, however, that in the event that (i)
this Agreement shall not have been earlier terminated and (ii) no Default shall
have occurred and be continuing on June 30, 2000, the Termination Date shall be
automatically extended to April 1, 2001.
(b) Loans. Paragraph (a) of subsection 2.01 of the Original Loan and
Security Agreement is hereby amended by the deletion in the first sentence
thereof of the words "the Termination Date" and the substitution therefor of the
words "June 30, 2000."
(c) Repayment of Loans; Interest. Paragraph (a) of subsection 3.01 of the
Original Loan and Security Agreement is hereby amended by the insertion
immediately before the period at the end thereof of the following: "; provided,
however, in the event the Termination Date shall be extended to April 1, 2001
pursuant to the terms hereof, Borrower promises to repay such aggregate
principal amount of the Loans outstanding on June 30, 2000 by the payment on the
first Business Day of each month during the Amortization Period beginning with
August 1, 2000 (including the Termination Date, as extended; each, an
"Installment Date") of an amount equal to the quotient of (x) the aggregate
principal amount of the Loans outstanding as at June 30, 2000 divided by (y) the
number of Installment Dates during the Amortization Period (such schedule of
payments, the "Amortization Schedule"); provided, further, that in the event
that Borrower shall repay any portion of the outstanding principal in an amount
in excess of the amount then due and payable in accordance with the Amortization
Schedule, the Amortization Schedule shall be recalculated such that Borrower
shall repay the principal amount of the Loans outstanding as at the date of such
repayment (after taking such repayment into account) by the payment on each
Installment Date remaining in the Amortization Period of an amount equal to the
quotient of (x) the aggregate principal amount of the Loans outstanding as at
the date of such repayment (after taking such repayment into account) divided by
(y) the number of Installment Dates remaining during the Amortization Period."
(d) Representations and Warranties; Existence. Subsection 6.01 of the
Original Loan and Security Agreement is hereby amended by the deletion of the
words "business trust" in clause (a) thereof and the substitution therefor of
the word "corporation."
(e) Covenants of Borrower; Liquidity and Cash. Section 7 of the Original
Loan and Security Agreement is hereby amended by the consecutive addition at the
end thereof of the following subsections 7.17 and 7.18:
"7.17. Maintenance of Liquidity. Borrower shall not permit Liquidity at
any time to be less than $10,000,000.00."
"7.18. Maintenance of Cash. Borrower shall maintain at all times Cash in
an aggregate amount not less than $5,000,000.00."
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(f) Events of Default. Paragraph (e) of Section 8 of the Original Loan and
Security Agreement is hereby amended by the deletion of the subsection reference
"7.16" therein and the substitution therefor of the subsection reference "7.18."
(g) Promissory Note. Exhibit A to the Loan and Security Agreement is
hereby deleted in its entirety and Exhibit A attached hereto shall be
substituted therefor.
(h) Opinion of Counsel of Borrower. Exhibit C to the Loan and Security
Agreement is hereby deleted in its entirety and Exhibit C attached hereto shall
be substituted therefor.
(i) Bailee Agreement. Exhibit F to the Loan and Security Agreement is
hereby deleted in its entirety and Exhibit F attached hereto shall be
substituted therefor.
(j) Collateral Pledged Prior to March 30, 1999. The Loan and Security
Agreement is hereby amended by the addition immediately after Exhibit F thereof
of Exhibit G in the form attached hereto as Exhibit G.
2. Representations and Warranties.
------------------------------
Borrower hereby makes to Lender the representations and warranties
set forth in Section 6 of the Original Loan and Security Agreement, as amended
by this Amendment No.1; provided, that, for the purposes of the representations
and warranties made hereby, the representations and warranties set forth in
Section 6.04 (iii) of the Original Loan and Security Agreement are hereby
qualified by the exception therefrom of the pending litigation described on
Schedule 1 hereof; provided, further that the representation and warranty hereby
made with respect to the Tangible Net Worth of Borrower as set forth in Section
6.14 of the Original Loan and Security Agreement is made as to the Tangible Net
Worth of Borrower as at the date hereof.
3. Ratification, Confirmation and Assumption.
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Borrower hereby (i) ratifies, confirms and assumes all of the
obligations of Predecessor Borrower under, and adopts and agrees to be bound by
all of the terms, covenants and conditions of, the Original Loan and Security
Agreement, the Note and the other Loan Documents (as each of such Original Loan
and Security Agreement, Note and other Loan Documents are amended hereby) with
the same force and effect as if Borrower had been the party executing such
agreements as the "Borrower" thereunder and (ii) represents, warrants and
covenants that, as of the date hereof, (a) Borrower has no cause of action at
law or in equity against Lender (including, without limitation, any offset,
defense, deduction or counterclaim) with respect to any of such obligations, (b)
the principal amount due and owing under the Loan and Security Agreement is
$60,545,548.47 and (c) the principal amount of MS Indebtedness is
$60,545,548.47.
4. Amendment to Pledge Agreements and Related Documents.
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Borrower and Lender hereby agree that each of those certain Pledge
and Security Agreements dated as of June 15, 1998 in respect of the 000 Xxxxxxxx
Collateral (as set forth on Exhibit G
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hereto), as of June 15, 1998 in respect of the Xxxxx Brothers Collateral (as set
forth on Exhibit G hereto), and as of October 23, 1998 in respect of the Smooke
Collateral (as set forth on Exhibit G hereto), each between Predecessor Borrower
and Lender, and any and all documents entered into in connection therewith, are
hereby amended to provide that all references therein to (i) the Original Loan
and Security Agreement (as defined herein) shall hereafter mean the Loan and
Security Agreement (as defined herein) and (ii) the Note (as defined herein)
shall mean the Amended and Restated Promissory Note (as hereinafter defined).
5. Binding Effect; No Partnership; Counterparts.
--------------------------------------------
The provisions of the Original Loan and Security Agreement and this
Amendment No. 1 shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing herein
contained shall be deemed or construed to create a partnership or joint venture
between any of the parties hereto. For the purpose of facilitating the execution
of this Amendment No. 1 as herein provided, this Amendment No. 1 may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts when taken together shall
constitute but one and the same instrument.
6. Further Agreements.
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Borrower agrees to execute and deliver such additional documents,
instruments or agreements as may be reasonably requested by Lender and as may be
necessary or appropriate to effectuate the purposes of this Amendment No. 1.
7. Governing Law.
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This Amendment No. 1 shall be governed by the laws of the State of
New York.
8. Continuing Effect.
-----------------
Except as modified by this Amendment No. 1, all terms of the Original
Loan and Security Agreement shall remain in full force and effect.
9. Conditions Precedent.
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It is a condition precedent to the effectiveness of this Amendment
No.1 that each of the following shall have occurred:
(a) Borrower shall have executed and delivered to Lender the Amended and
Restated Promissory Note in the form attached hereto as Exhibit A (the "Amended
and Restated Promissory Note");
(b) each party hereto shall have executed and delivered this Amendment No.
1;
(c) Borrower shall have paid to Lender an extension fee in the amount of
$403,740.88;
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(d) Lender shall have received from Borrower an officer's certificate
dated the date hereof in the form required under Section 5.02(b) of the Loan and
Security Agreement; and
(e) Lender shall have received from Borrower's counsel, or counsels,
opinions substantially in the form of Exhibit C hereto acceptable to Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed by their respective officers thereunto duly authorized as
of the date first above written.
BORROWER
CAPITAL TRUST, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
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Name: Xxxxxx X. Xxxxxxx, III
Title: Managing Director and Chief Financial Officer
and Assistant Secretary
Address for Notices:
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000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, III
Chief Financial Officer
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
LENDER
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XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By:/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
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0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Whole Loan Operations
Mortgage-Backed Securities Department,
Fixed-Income Division
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
With a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxx, III, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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