Exhibit 10.9(b)
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amendment to Amended and Restated Credit Agreement (this
"Amendment"), dated as of July 23, 1998, is made by and between Capital Trust, a
California business trust having an office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as borrower (the "Borrower"), and German American Capital
Corporation, a Maryland corporation having an office at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as lender (the "Lender").
R E C I T A L S
WHEREAS, the parties hereto are party to that certain Amended and
Restated Credit Agreement, dated as of January 1, 1998 (the "Original Credit
Agreement"), as amended by that certain First Amendment to Amended and Restated
Credit Agreement, dated as of June 22, 1998, between Borrower and Lender (the
"First Amendment"; and, together with the Original Credit Agreement, the "Credit
Agreement"; terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Credit Agreement), pursuant to which the Lender
agreed, subject to the terms and conditions set forth in the Credit Agreement,
to make a loan to Borrower as provided in the Credit Agreement; and
WHEREAS, the maximum principal amount of the Loan immediately preceding
the execution and delivery of this Amendment is $300,000,000; and
WHEREAS, Borrower and Lender desire to increase the maximum principal
amount of the Loan from $300,000,000 to $355,000,000; and
WHEREAS, Borrower and Lender desire to amend the Credit Agreement to
reflect such increase of the maximum principal amount of the Loan;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows, effective as of the date
hereof:
1. Commitment.
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1.1 The first paragraph of the Recitals on page 1 of the Original
Credit Agreement, as amended by Section 1.1 of the First Amendment, is hereby
deleted in its entirety and replaced by the following paragraph:
WHEREAS, Borrower desires to obtain a series of loan advances (each, an
"Advance" and collectively, the "Loan") from Lender (as defined below)
in an aggregate amount at any time outstanding of up to $355,000,000 to
provide warehouse funding for a portion of the principal amount of the
Collateral Loans and other Collateral
(each as hereinafter defined) that Borrower or its Acquisition Entities
originates or acquires, as the case may be; and
1.2 The paragraph in which the term "Commitment" is defined in Section
1.1 of the Original Credit Agreement, as amended by Section 1.2 of the First
Amendment, is hereby deleted in its entirety and replaced by the following
paragraph:
"Commitment" means the sum of Three Hundred Fifty Five Million Dollars
($355,000,000).
2. Loan Fee.
2.1 The definition of the term "Loan Fee" in Section 1.1 of the
Original Credit Agreement, as amended by Section 2.1 of the First Amendment, is
hereby deleted in its entirety and replaced by the following:
"Loan Fee" means the fee set forth below. Borrower shall pay the Loan
Fee to Lender as follows:
/----------------------------/-----------------------------------------/
/Installment Amount of / Borrower Shall Pay The Referenced /
/Loan Fee: / Installment the First Time Lender /
/ / Makes any Advance that Causes the /
/ / Principal Balance of the Loan to /
/ / Exceed: /
/ / /
/----------------------------/-----------------------------------------/
/ $750,000 / $1 /
/----------------------------/-----------------------------------------/
/ $750,000 / $75,000,000 /
/----------------------------/-----------------------------------------/
/ $500,000 / $150,000,000 /
/----------------------------/-----------------------------------------/
/ $250,000 / $250,000,000
/----------------------------/-----------------------------------------/
/ $275,000 / $300,000,000 /
/----------------------------/-----------------------------------------/
NOTE: Borrower has paid to Lender all installments of the Loan Fee.
3. Global Note.
3.1 On or before the date hereof, Borrower shall execute and deliver to
Lender an amendment to the Global Note in the form attached hereto as Exhibit A
(the "Note Amendment"). All references to the Global Note in the Security
Documents shall mean and refer to the Global Note as modified and amended by (i)
that certain First Amendment to Global Note, dated as of June 22, 1998, between
Borrower and Lender and (ii) the Note Amendment.
4. Principal Balance of Loan.
4.1 Borrower acknowledges that, as of July 23, 1998, the outstanding
principal balance of the Loan was $283,869,887.
5. Covenants, Representations and Warranties of Borrower.
5.1 Borrower hereby reaffirms all terms, covenants, representations and
warranties made in the Security Documents as amended hereby.
5.2 Borrower hereby represents and warrants to the Lender that (a) it
has the legal power and authority to enter into this Amendment without consent
or approval by any third party and this Amendment constitutes the legal, valid
and binding obligation of Borrower, enforceable against Borrower in accordance
with its terms and (b) the execution and delivery by Borrower of this Amendment
has been duly authorized by all requisite action on the part of Borrower and
will not violate any provision of Borrower's organizational documents. 5.3
Borrower hereby represents and warrants to the Lender that, as of the date
hereof, (a) no Default or Event of Default has occurred and is continuing; (b)
no Default or Event of Default will occur as a result of the execution, delivery
and performance by Borrower of this Amendment; (c) Borrower has not given any
notice of any uncured Default to Lender and (d) there are no legal proceedings
commenced or threatened against Lender by Borrower. 5.4 Borrower hereby confirms
and acknowledges that Borrower has no offsets, defenses, claims, counterclaims,
setoffs, or other basis for reduction with respect to any portion of the
Indebtedness. 5.5 Borrower hereby agrees that a breach of any of the
representations and warranties made herein shall constitute an Event of Default
under Section 8.1 of the Credit Agreement, subject to the notice and cure
provisions provided therein. 6. Lender's Acknowledgment.
6.1 Lender acknowledges to Borrower that, as of the date hereof, both
before and after giving effect to this Amendment, to the best of Lender's
knowledge, Borrower is not in default with respect to its obligations under the
Credit Agreement and the Collateral Security Instruments.
7. Effect Upon Security Documents; Trustee Exculpation.
7.1 Except as specifically set forth herein, the Security Documents
shall remain in full force and effect and are hereby ratified and confirmed. The
parties hereto acknowledge and agree that the Credit Agreement, as hereby
amended, is in full force and effect in accordance with its terms and has not
been supplemented, modified or otherwise amended, canceled, terminated or
surrendered, except pursuant to this Amendment. The Credit Agreement is binding
and enforceable as against the parties hereto in accordance with its terms. Any
inconsistency between this Amendment and the Credit Agreement (as it existed
before this Amendment) shall be resolved in favor of this Amendment, whether or
not this Amendment specifically modifies the particular provision(s) in the
Credit Agreement inconsistent with this Amendment. All references to the "Credit
Agreement" in the Security Documents and to the "Agreement" in the Credit
Agreement shall mean and refer to the Credit Agreement as modified and amended
hereby.
7.2 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Lender under the
Security Documents (except to the extent expressly set forth herein), or any
other document, instrument or agreement executed and/or delivered in connection
therewith. 7.3 The provisions of this Amendment shall be subject to the
provisions of Section 9.13 of the Credit Agreement, which provisions are
incorporated by reference as if herein set forth in full. 8. Governing Law.
8.1 THIS AMENDMENT SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PRINCIPLES.
9. Counterparts.
9.1 This Amendment may be executed in any number of counterparts, and
all such counterparts shall together constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above written.
BORROWER:
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CAPITAL TRUST,
a California business trust
By: /s/ Xxxxxx X. Xxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Managing Director and Chief
Financial Officer
LENDER:
------
GERMAN AMERICAN CAPITAL CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
Exhibit A Note Amendment
