Exhibit 10.9.b
SECOND AMENDMENT
TO
AMENDED AND RESTATED
MASTER LOAN AND SECURITY AGREEMENT
FOR A CREDIT FACILITY
IN AN AMOUNT UP TO $100,000,000
Dated as of July 16, 2002
Between
CAPITAL TRUST, INC.
as Borrower
and
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC.
as Lender
================================================================================
TABLE OF CONTENTS
Page
----
1. Amendment..............................................................1
2. Representations and Warranties.........................................2
3. No Default.............................................................2
4. Ratification and Confirmation..........................................2
5. Binding Effect; No Waiver; No Partnership; Counterparts................2
6. Governing Law..........................................................2
7. Continuing Effect......................................................2
8. Costs and Expenses.....................................................2
i
SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LOAN AND SECURITY
AGREEMENT dated as of July 16, 2002 (this "Agreement") between CAPITAL TRUST,
INC., a Maryland corporation ("Borrower"), and XXXXXX XXXXXXX XXXX XXXXXX
MORTGAGE CAPITAL INC. ("Lender") to Amended and Restated Master Loan and
Security Agreement dated as of February 8, 2001 between Borrower and Lender as
amended pursuant to that certain First Amendment to Amended and Restated Master
Loan and Security Agreement dated as of July 16, 2001, between Borrower and
Lender (collectively, the "Original Loan and Security Agreement"). Capitalized
terms used herein without definition have the meanings given to them in the
Original Loan Agreement. The Original Loan Agreement, as amended by this
Agreement, and as such agreement otherwise from time to time has been or
hereafter may be 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 extend the term.
NOW, THEREFORE, in consideration of the mutual promises herein contained
the parties hereto hereby agree as follows:
1. Amendment. 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 deletion in its entirety of the definition of the term
"Amortization Period" and the substitution therefor of the following:
"Amortization Period" shall mean, if the Termination Date shall be
extended in accordance with the terms hereof, the period from and after August
9, 2002 to, but not including, May 9, 2003.
(ii) the deletion of the words "June 30, 2001" in subsection (B) of
the definition of the term "Eurodollar Rate Spread" and the substitution
therefor with the words "August 9, 2002."
(iii) the deletion in its entirety of the definition of the term
"Termination Date" and the substitution therefor of the following:
"Termination Date" shall mean August 9, 2002 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 August 9, 2002, the Termination
Date shall be automatically extended to May 8, 2003.
(b) 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 "June 30, 2001" and the substitution therefor of the words "August 9,
2002."
(c) Subsection 3.01(a) of the Original Loan and Security Agreement is
hereby deleted in its entirety and the following subsection shall be inserted in
lieu thereof:
"(a) Borrower hereby promises to repay in full on the Termination Date the
aggregate outstanding principal amount of the Loans; provided, however, in the
event the Termination Date shall be extended to May 9, 2003 pursuant to the
terms hereof, Borrower promises to repay such aggregate principal amount of the
Loans outstanding on August 9, 2002 by the payment on the first Business Day of
each month during the Amortization Period beginning with September 1, 2002 and
on 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 August 9, 2002 divided by (y) nine (9) (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 on 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 on the
date of such repayment (after taking such repayment into account) divided by (y)
the number of Installment Dates remaining during the Amortization Period. Any
repayment of the principal of the Loans made by Borrower to Lender subsequent to
an Installment Date shall be credited at the time of such payment and applied to
the payment due on next succeeding Installment Date."
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. Such
representations and warranties are true and correct as though made on and as of
the date hereof and after giving effect to this Agreement, except to the extent
such representations and warranties refer to an earlier date.
3. No Default.
No Default has occurred and is continuing, or will result from the
execution, delivery or performance of this Agreement, the performance of the
Original Loan and Security Agreement, as amended by this Agreement, or the
consummation of the transactions contemplated hereby.
4. Ratification and Confirmation.
Borrower hereby (i) ratifies and confirms all of the obligations of
Borrower under the Original Loan and Security Agreement (as amended hereby), the
Note and the other Loan Documents and (ii) represents, warrants and covenants
that, as of the date hereof, 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.
5. Binding Effect; No Waiver; No Partnership; Counterparts.
The provisions of the Original Loan and Security Agreement and this
Agreement 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 (a) to constitute a waiver of any right of Lender
under the Original Loan and Security Agreement, as amended, or (b) to create a
partnership or joint venture between any of the parties hereto. For the purpose
of facilitating the execution of this Agreement as herein provided, this
Agreement 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. Governing Law.
This Agreement shall be governed by the laws of the State of New York.
7. Continuing Effect.
As modified by this Agreement, all terms of the Original Loan and Security
Agreement are in full force and effect. Each and all references to the "Loan
Agreement" in the Loan Documents shall mean the Original Loan and Security
Agreement as amended hereby.
8. Costs and Expenses.
Borrower shall pay as and when billed by the Lender all of the
out-of-pocket costs and expenses of the Lender incurred in connection with the
development, preparation, execution, delivery and administration, modification
and amendment of this Agreement, and the other documents to be delivered
hereunder (including, without limitation, all the reasonable fees, disbursements
and expenses of counsel to the Lender) in accordance with the terms of Section
11.03 of the Original Loan Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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
---------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
LENDER
------
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
