Exhibit 10.9.c
THIRD 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 August 9, 2002
Between
CAPITAL TRUST, INC.
as Borrower
and
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC.
as Lender
================================================================================
TABLE OF CONTENTS
Page
----
1. Amendments.............................................................1
2. Representations and Warranties.........................................4
3. Binding Effect; No Waiver; No Partnership; Counterparts................4
4. Further Agreements.....................................................4
5. Governing Law..........................................................4
6. Continuing Effect......................................................4
7. Conditions Precedent...................................................4
THIRD AMENDMENT TO AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT
dated as of August 9, 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 and as
further amended pursuant to that certain Second Amendment to Amended and
Restated Master Loan and Security Agreement dated as of July 16, 2002, 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, inter alia, extend the term and amend certain of the financial covenants
therein and such other terms and conditions applicable to such modifications.
NOW, THEREFORE, in consideration of the mutual promises herein contained
the parties hereto hereby 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 deletion in its entirety of the definition of the term
"Affiliate Credit Facility" and the substitution therefor of the following:
"Affiliate Credit Facility" shall mean any one or more agreements between
Lender, or an Affiliate of Lender, and Affiliates of Borrower (including,
without limitation, that certain (i) Master Loan and Security Agreement
dated as of September 19, 2000, between CT Mezzanine Partners I LLC and
Lender as amended pursuant to that certain First Amendment to Master Loan
and Security Agreement dated as of December 29, 2000, as further amended
pursuant to that certain Second Amendment to Master Loan and Security
Agreement dated as of February 8, 2001, as further amended pursuant to
that certain Third Amendment dated as of July 16, 2001, as further amended
pursuant to that certain Fourth Amendment to Master Loan and Security
Agreement, dated as of July 16, 2002 and as further amended pursuant to
that certain Fifth Amendment to Master Loan and Security Agreement dated
as of August 9, 2002, (ii) that certain CMBS Loan Agreement dated as of
September 19, 2000, between CT Mezzanine Partners I LLC and MSIL as
amended pursuant to that certain First Amendment to CMBS Loan Agreement
dated as of February 8, 2001, as further amended pursuant to that certain
Second Amendment to CMBS Loan Agreement dated as of July 16, 2001, as
further amended pursuant to that certain Third Amendment to CMBS Loan
Agreement dated as of July 16, 2002 and as further amended
3
pursuant to that certain Fourth Amendment to CMBS Loan Agreement dated as
of August 9, 2002, (iii) that certain Master Loan and Security Agreement
dated as of July 16, 2001, between Lender and CTMP II Funding Corp. (MS),
as supplemented pursuant to that certain Joinder dated as of January 31,
2002, by CTMPII FC BLOCK (MS), CTMP II Funding Corp. (MS), CTMPII FC
Transpotomac (MS) and CT Mezzanine Partners II LP in favor of Xxxxxx
Xxxxxxx & Co. International Limited, Lender and agreed to and accepted by
Bankers Trust Company and Midland Loan Services, Inc., as further
supplemented pursuant to that certain Modification to Joinder dated as of
August 9, 2002 among the same parties as amended pursuant to that certain
First Amendment to Master Loan and Security Agreement dated as of July 16,
2002 and as further amended pursuant to that certain Second Amendment to
Master Loan and Security Agreement dated as of August 9, 2002, and (iv)
CMBS Loan Agreement dated as of July 16, 2001, between MSIL and CTMP II
Funding Corp. (MS)) as supplemented pursuant to that certain Joinder dated
as of January 31, 2002, by CTMPII FC BLOCK (MS), CTMP II Funding Corp.
(MS), CTMPII FC Transpotomac (MS) and CT Mezzanine Partners II LP in favor
of Xxxxxx Xxxxxxx & Co. International Limited, Lender and agreed to and
accepted by Bankers Trust Company and Midland Loan Services, Inc., as
further supplemented pursuant to that certain Modification to Joinder
dated as of August 9, 2002 among the same parties as amended pursuant to
that certain First Amendment to CMBS Loan Agreement dated as of July 16,
2002 and as further amended pursuant to that certain Second Amendment to
CMBS Loan Agreement dated as of August 9, 2002) pursuant to which such
Affiliate of Borrower shall incur Indebtedness to Lender or such Affiliate
of Lender and including, without limitation, any other loan agreement or
repurchase agreement between Lender, or an Affiliate of Lender, and an
Affiliate of Borrower.
(ii) 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 July 16,
2003 to, but not including, April 16, 2004.
(iii) 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 "July 16, 2003."
(iv) the deletion in its entirety of the definition of the term
"Termination Date" and the substitution therefor of the following:
"Termination Date" shall mean July 16, 2003 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 July 16, 2003, the Termination Date shall be
automatically extended to April 16, 2004.
(v) the deletion in its entirety of the definition of the term
"Tangible Net Worth" and the substitution therefor of the following:
"Tangible Net Worth" shall mean, as of a particular date,
(a) all amounts included in stockholder's equity plus the aggregate amount
recorded for convertible trust preferred securities, on a balance sheet of
Borrower at such date, determined in accordance with GAAP, less
(b) (i) amounts owing to Borrower from Affiliates and (ii) intangible
assets.
4
(vi) the deletion in its entirety of the definition of the term
"Total Indebtedness" and the substitution therefor of the following:
"Total Indebtedness" shall mean, at any date, the aggregate
Indebtedness of Borrower during such period (specifically
excluding any amount recorded on the Borrower's balance sheet
for convertible trust preferred securities), less the amount of
any nonspecific balance sheet reserves maintained in accordance
with GAAP.
(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 "June 30, 2001" and the substitution therefor of the words
"July 16, 2003."
(c) Subsection 2.02 of the Original Loan and Security Agreement is hereby
deleted in its entirety and the following subsection shall be inserted in lieu
thereof:
"(a) The Loans made by Lender shall be evidenced by a single promissory
note of Borrower substantially in the form of Exhibit A hereto, dated the
date hereof, payable to Lender in the principal amount of One Hundred
Million Dollars ($100,000,000.00), as otherwise duly completed.
Notwithstanding the foregoing, provided that no Default or Event of
Default shall have occurred and be continuing hereunder or under any
Affiliate Credit Facility, Borrower may request, upon no less than ten
(10) Business Days prior written notice delivered to Lender, that the
aggregate credit available to Borrower hereunder, under the Conduit Loan
Agreement and under any Affiliate Credit Agreement be reallocated among
such credit agreements; provided, however, that in no event shall the
Maximum Credit plus (i) the aggregate of the Maximum Credit hereunder and
the Maximum Credit (as such term is defined in the CMBS Loan Agreement)
under the CMBS Loan Agreement plus (ii) the aggregate Maximum Credit (as
such term is defined in any Affiliate Credit Facility) under any existing
Affiliate Credit Facility, exceed Three Hundred and Fifty Million Dollars
($350,000,000.00). In the event (i) that the Maximum Credit is increased
or decreased as a result of a reallocation of the Maximum Credit available
hereunder or under any Affiliate Credit Facility, Borrower shall deliver
to Lender a substitute Note evidencing such increase or decrease and such
other documents, certificates and amendments as Lender shall request.
Lender shall have the right to have its Note subdivided, by exchange for
promissory notes of lesser denominations or otherwise and shall have the
right to sell participating interests in such Note; provided, however,
that Lender must retain (i) in excess of fifty percent (50%) ownership
interest in the Note and (ii) have control over all decisions with respect
to loan pricing and the exercise of remedies with respect to each item of
Collateral; and provided, further, however, that Lender may subject up to
one hundred percent (100%) of the Loans made hereunder to a repurchase
agreement."
(b) The date, amount and interest rate of each Loan made by Lender to
Borrower, and each payment made on account of the principal thereof, shall
be recorded by Lender from time to time on its internal books and records
(whether electronic or otherwise). Failure of Lender to make such notation
shall not affect the obligations of Borrower to make a payment when due of
any amount owing hereunder or under the Note in respect of the Loans.
Borrower agrees that Lender's books and records showing the MS
Indebtedness pursuant to this Loan Agreement and the other Loan Documents
shall be admissible in any action or proceeding arising therefrom, and
shall constitute rebuttably presumptive proof thereof, irrespective of
whether any MS Indebtedness is also evidenced by a promissory note or
other instrument. Lender will provide to the Borrower a monthly statement
of Loans, payments, and other transactions pursuant to this Loan
Agreement. Failure by Lender to provide such monthly statement shall not
effect the obligations of Borrower to make a payment when due of any
amount owing hereunder or under
5
the Note in respect of the Loans. Such statement shall be deemed correct,
accurate, and binding on Borrower absent manifest error."
(d) 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 April 16,
2004 pursuant to the terms hereof, Borrower promises to repay such
aggregate principal amount of the Loans outstanding on July 16, 2003 by
the payment on the first Business Day of each month during the
Amortization Period beginning with August 1, 2003 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 July 16, 2003 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."
(e) Section 6.14 of the Original Loan and Security Agreement is hereby
deleted in its entirety and the following section shall be inserted in lieu
thereof:
"Tangible Net Worth. On the date hereof, the Tangible Net Worth is not
less than the sum of $200,000,000."
(f) Section 7.12 of the Original Loan and Security Agreement is hereby
deleted in its entirety and the following section shall be inserted in lieu
thereof:
"Maintenance of Tangible Net Worth. Borrower shall not permit Tangible Net
Worth at any time to be less than the sum of (i) $200,000,000 plus (ii) an
amount equal to 75% of the net proceeds received by the Borrower from the
issuance by it after July 1, 2002 of any equity securities (including
convertible trust preferred securities); provided, however, that in the event
Borrower shall redeem or repurchase and cancel any equity securities (or
convertible trust preferred securities), the amount set forth in clause (i) of
this Section 7.12 shall be reduced, dollar for dollar, by the amount of the
aggregate redemption price of such equity securities, or if greater, the book
value thereof."
2. Representations and Warranties.
Borrower hereby makes to Lender the representations and warranties set
forth in Section 6 of the Original Loan Agreement, as amended by this Agreement.
3. Binding Effect; No Waiver; No Partnership; Counterparts.
6
The provisions of the Original Loan 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 Loan
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.
4. Further Agreements.
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 Agreement.
5. Governing Law.
This Agreement shall be governed by the laws of the State of New York.
6. Continuing Effect.
Except as modified by this Agreement, all terms of the Original Loan
Agreement shall remain in full force and effect. Each and all references to the
"Loan Agreement" in the Loan Documents shall mean the Loan Agreement as amended
hereby.
7. Conditions Precedent.
It is a condition precedent to the effectiveness of this Agreement that
each of the following shall have occurred:
(a) the receipt of a fee in the amount of $300,000;
(b) each party hereto shall have executed and delivered this Agreement;
(c) 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
Agreement which shall be true, correct and complete both before and after giving
effect to this Agreement; and
(d) Lender shall have received from Borrower's counsel, or counsels,
opinions acceptable to Lender.
[SIGNATURE PAGE FOLLOWS]
7
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
8