Exhibit 10.14.b
FIRST 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, 2001
Between
CAPITAL TRUST, INC.
as Borrower
and
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC.
as Lender
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TABLE OF CONTENTS
Page
1. Amendments...........................................................1
2. Representations and Warranties.......................................8
3. No Default...........................................................8
4. Ratification, Confirmation and Assumption............................8
5. Binding Effect; No Waiver; No Partnership; Counterparts..............9
6. Further Agreements...................................................9
7. Governing Law........................................................9
8. Continuing Effect....................................................9
9. Conditions Precedent.................................................9
EXHIBIT A Form of Second Amended and Restated Promissory Note
i
FIRST AMENDMENT TO AMENDED AND RESTATED MASTER LOAN AND SECURITY
AGREEMENT dated as of July 16, 2001 (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, the
(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 alter the Maximum Credit and 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 and further amended pursuant to that certain Second Amendment
to Master Loan and Security Agreement dated as of February 8, 2001 and
further amended pursuant to that certain Third Amendment dated as of
July 16, 2001 (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 dated as of July 16, 2001, (iii) that certain
Master Loan and Security Agreement dated as of July 16, 2001 between
Lender and CTMP II Funding Corp. (MS), and (iv) CMBS Loan Agreement
dated as of July 16, 2001 between MSIL and CTMP II Funding Corp. (MS)),
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,
2002 to, but not including, March 16, 2003.
(iii) the deletion of the words "June 30, 2002" in subsection (B)
of the definition of the term "Eurodollar Rate Spread" and the substitution
therefor with the words "July 16, 2002."
(iv) the deletion in its entirety of the definition of the term
"Maximum Credit" and the substitution therefor of the following:
"Maximum Credit" shall mean One Hundred Million Dollars
($100,000,000.00) or such increased or decreased amount as may be
permitted, or otherwise required, pursuant to Section 2.01 (a).
(v) the deletion in its entirety of the definition of the term
"Note" and the substitution therefor of the following:
"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 Second Amended and Restated Promissory
Note dated as of July 16, 2001 by Borrower to Lender given in
substitution for, and replacement of, 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 as of June 8, 1998 by Borrower to Lender.
(vi) 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, 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
July 16, 2002, the Termination Date shall be automatically extended to
March 15, 2003.
(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, 2002."
(c) Subsection 2.02 (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) 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 CMBS 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 Four Hundred Million Dollars ($400,000,000.00). 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."
(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 March
16, 2003 pursuant to the terms hereof, Borrower promises to repay such
aggregate principal amount of the Loans outstanding on July 16, 2002 by
the payment on the first Business Day of each month during the
Amortization Period beginning with August 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 July 16, 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."
(e) Subsections 3.04a(i), (a)(ii)(y) and (c) of the Original Loan and
Security Agreement shall be hereby amended by the deletion of the number "4224"
in all places it appears in such subsections and replaced with "W-8EC1" and
further amended by the deletion of the words "Form 1001" in all places it
appears in such subsections and replaced with "Form W-8BEN".
(f) Section 4.08 of the Original Loan and Security Agreement shall be
hereby amended by the deletion of the term "9-504(1)" in such section and
replaced with "9-608(a)(1)(C)."
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.
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) each party hereto shall have executed and delivered this Agreement;
(b) 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
(c) Lender shall have received from Borrower's counsel, or counsels,
opinions acceptable to Lender.
[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
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CAPITAL TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
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Name: Xxxxxx X. Xxxxxxx III
Title: Chief Financial Officer
Address for Notices:
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000 Xxxx 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:
Paul, Hastings, Xxxxxxxx & 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 XXXX XXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Address for Notices:
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0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxxx, Whole Loan Operations
Mortgage-Backed Securities Department,
Fixed-Income Division
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxxxxx Chance 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
EXHIBIT A
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[FORM OF SECOND AMENDED AND RESTATED PROMISSORY NOTE]
$ 100,000,000.00 as of June 8, 1998
New York, New York
SECOND AMENDED AND RESTATED PROMISSORY NOTE dated as of July 16, 2001
(this "Note") made by CAPITAL TRUST, INC., a Maryland corporation ("Borrower"),
to XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC., a New York corporation
("Lender") in substitution for, and replacement of, the Amended and Restated
Promissory Note dated as of June 8, 1998 (the "Original Note") made by Borrower
to Lender pursuant to that certain Amended and Restated Master Loan and Security
Agreement dated as of February 8, 2001 (the "Original Loan and Security
Agreement") between Borrower and Lender.
PRELIMINARY STATEMENT
Borrower and Lender have entered into that certain Amended and Restated
Master Loan and Security Agreement dated as of February 8, 2001 as amended
pursuant to that certain First Amendment to Amended and Restated Master Loan and
Security Agreement dated as of July 16, 2001 (as further amended, supplemented
or otherwise modified and in effect from time to time, collectively, the "Loan
Agreement"). In connection therewith, Borrower has agreed to enter into this
Note in substitution for, and replacement of, the Original Note.
NOW THEREFORE, FOR VALUE RECEIVED, Borrower hereby promises to pay to
the order of Lender, at the principal office of Lender at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, in lawful money of the United States, and in immediately
available funds, the principal sum of ONE HUNDRED MILLION DOLLARS
($100,000,000.00) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by Lender to Borrower under the Loan
Agreement), on the dates and in the principal amounts provided in the Loan
Agreement, and to pay interest on the unpaid principal amount of each such Loan,
at such office, in like money and funds, for the period commencing on the date
of such Loan until such Loan shall be paid in full, at the rates per annum and
on the dates provided in the Loan Agreement.
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 on its books and, prior to any transfer of this Note,
endorsed by Lender on the schedule attached hereto or any continuation thereof;
provided, that the failure of Lender to make any such recordation or endorsement
shall not affect the obligations of Borrower to make a payment when due of any
amount owing under the Loan Agreement or hereunder in respect of the Loans made
by Lender.
This Note is the Note referred to in the Loan Agreement, and evidences
Loans made by Lender thereunder. Terms used but not defined in this Note have
the respective meanings assigned to them in the Loan Agreement.
This Note amends and restates in its entirety the Original Note and is
given as a continuation and extension, and not a novation, release or
satisfaction, of the Original Note. The issuance and delivery of this Amended
and Restated Promissory Note does not create or evidence any principal
indebtedness other than the principal indebtedness evidenced by the Original
Note. Borrower hereby acknowledges and agrees that simultaneously with
Borrower's execution and delivery of this Note to Lender, Lender has delivered
to Borrower the Original Note.
Borrower hereby 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 and (b) the principal amount due and
owing under this Note is $10,322,033.90.
Borrower agrees to pay all Lender's costs of collection and enforcement
(including reasonable attorneys' fees and disbursements of Lender's counsel) in
respect of this Note when incurred, including, without limitation, reasonable
attorneys' fees through appellate proceedings.
Notwithstanding the pledge of the Collateral, Borrower hereby
acknowledges, admits and agrees that Borrower's obligations under this Note are
recourse obligations of Borrower to which Borrower pledges its full faith and
credit.
Borrower, and any endorsers or guarantors hereof, (a) severally waive
diligence, presentment, protest and demand and also notice of protest, demand,
dishonor and nonpayment of this Note, (b) expressly agree that this Note, or any
payment hereunder, may be extended from time to time, and consent to the
acceptance of further Collateral, the release of any Collateral for this Note,
the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for Lender, in order to enforce
payment of this Note, to first institute or exhaust Lender's remedies against
Borrower or any other party liable hereon or against any Collateral for this
Note. No extension of time for the payment of this Note, or any installment
hereof, made by agreement by Lender with any person now or hereafter liable for
the payment of this Note, shall affect the liability under this Note of
Borrower, even if Borrower is not a party to such agreement; provided, however,
that Lender and Borrower, by written agreement between them, may affect the
liability of Borrower.
Any reference herein to Lender shall be deemed to include and apply to
every subsequent holder of this Note. Reference is made to the Loan Agreement
for provisions concerning optional and mandatory prepayments, Collateral,
acceleration and other material terms affecting this Note.
This Note shall be governed by and construed under the laws of the State of New
York (without reference to choice of law doctrine) whose laws Borrower expressly
elects to apply to this Note. Borrower agrees that any action or proceeding
brought to enforce or arising out of this Note may be commenced in the Supreme
Court of the State of New York, Borough of Manhattan, or in the District Court
of the United States for the Southern District of New York.
CAPITAL TRUST, INC.,
a Maryland corporation
By:
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Name: Xxxxxx X. Xxxxxxx III
Title: Chief Financial Officer
SCHEDULE OF LOANS
This Amended and Restated Promissory Note evidences Loans made under the
within-described Loan Agreement to Borrower, on the dates, in the principal
amounts and bearing interest at the rates set forth below, and subject to the
payments and prepayments of principal set forth below.
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Name of Date Made Principal Interest Amount Paid Unpaid Cumulative Notation
Collateral Amount of Rate or Prepaid Principal Total Unpaid Made by
of Loan Amount Principal
Amount
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7/16/01 1,467,273.64 6.11% * 1,467,273.64 1,467,273.64 PW
*The respective amounts shown in the columns entitled "Principal Amount of Loan"
and "Cumulative Total Unpaid Principal Amount" reflect the respective net unpaid
principal amounts inclusive of all advances and repayments to, and including,
the date hereof in respect of the indicated collateral.
