Exhibit 10.21.b
JOINDER AND AMENDMENT
This JOINDER AND AMENDMENT (the "Joinder and Amendment") is executed and
delivered as of July 20, 2004 (the "Joinder Date") by CT RE CDO 2004-1 SUB, LLC
(the "Joinder Party"), a Delaware limited liability company, CAPITAL TRUST,
Inc., a Maryland corporation ("CT"), and CT MEZZANINE PARTNERS I LLC, a Delaware
limited liability company ("CT Mezz" together with CT, "Borrowers" and
individually, as the context requires, as a "Borrower"), in favor of XXXXXX
XXXXXXX MORTGAGE CAPITAL INC., a New York corporation ("Lender"), and agreed to
and accepted by DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation ("Custodian"), and MIDLAND LOAN SERVICES, INC., a Delaware
corporation ("Servicer").
This Joinder and Amendment is executed and delivered with reference to
the following facts:
A. Borrowers and Lender have entered into that certain Amended and
Restated Master Loan and Security Agreement for a Credit Facility
dated as of June 27, 2003 ("MLSA").
B. Pursuant to the MLSA, Lender has agreed to lend to the Borrowers,
the aggregate sum of up to One Hundred Fifty Million Dollars
($150,000,000) pursuant to a revolving credit arrangement,
whether before, simultaneously with, or after the execution of
this Joinder and Amendment (the "Loan").
C. The Joinder Party is directly owned and controlled by CT and the
Joinder Party will obtain substantial benefits from Lender's
making of the Loan.
D. The Joinder Party desires to join in the Borrowers' obligations
with respect to the Loan and to provide security for the Loan.
E. On the Joinder Date, the Joinder Party has executed and
delivered, among other things, to Lender the Fourth Amended and
Restated Promissory Note dated as of June 8, 1998 (the "MLSA
Note"), made by the Joinder Party and Borrowers in favor of
Lender in the maximum principal amount of One Hundred Fifty
Million Dollars ($150,000,000).
NOW, THEREFORE, in exchange for good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the Joinder Party hereby
agrees, by executing this Joinder and Amendment, as follows:
1. Assumption of Liability. The Joinder Party hereby joins in, and
assumes direct primary liability, and not liability as a guarantor or surety,
for, all the obligations of Borrowers (whether now existing or established in
the future) under the following documents (each, a "Loan Document" and
collectively, the "Loan Documents"): (a) the MLSA; (b) the MLSA Note, (c) that
certain Amended and Restated Custodial Agreement dated as of June 27, 2003 (the
"Custodial Agreement"), among Borrowers, Custodian and Lender; and (d) that
certain Amended and Restated Interim Servicing Agreement dated as of June 27,
2003 (the "Servicing Agreement"), among Borrowers, Lender and Servicer; and (e)
any other documents, certificates and agreements executed by Borrower in
connection with the foregoing documents listed as items (a)-(d). This Joinder
and Amendment is made to facilitate the pledging by Joinder Party to Lender of
that certain CMBS (as defined in the MLSA) described more particularly on
Exhibit A annexed hereto (the "CDO Collateral"). By executing this Joinder and
Amendment, the Joinder Party is assuming and agreeing to all liabilities and
obligations whether now existing or hereafter arising under the Loan Documents,
and all the terms, conditions, covenants and restrictions thereof. The Joinder
Party shall be fully liable for all obligations of Borrowers under, and fully
bound by, all the Loan Documents as if the Joinder Party had executed and
delivered all the Loan Documents (including any future amendments or
modifications thereof) directly in the Joinder Party's own name.
2. Obligation to Pay. The Joinder Party shall, in accordance with the
Borrowers' obligations under the Loan Agreement, pay the principal amount of the
Loan, including all present and future disbursements or advances made by Lender
on account of the Loan, all interest accrued thereon, and all other sums payable
under any Loan Documents.
3. Covenants, Consents, Acknowledgments, Etc. The Joinder Party:
a. joins in all present and future consents,
acknowledgments, obligations, agreements, undertakings,
liabilities, covenants and confirmations contained in
the Loan Documents, whether arising before or after the
Joinder Date;
b. shall be bound by all restrictions, limitations, and
prohibitions that apply to Borrowers under any of the
Loan Documents; and
c. makes all of the representations and warranties
contained in the Loan Documents for itself to the extent
applicable and to the same extent required to be made by
CT Mezz under the Loan Documents, as if the same were
fully set forth herein.
4. Amendments to MLSA. The MLSA is amended as follows:
(a) Solely with respect to the CDO Collateral, the definition of
"Eurodollar Rate Spread" contained in Section 1.01 of the MLSA is
amended to add at the end thereof the following sentence:
"Notwithstanding the foregoing, for CDO Collateral only, Eurodollar Rate
Spread means (A) as to each Advance Rate the applicable Eurodollar Rate
Spread set forth below opposite such Advance Rate:
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Eurodollar Rate Spread
(expressed as percentage points per annum and as
CDO Collateral Advance Rate basis points)
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Series F Note 60% 1.50% 150 bp
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Series G Note 50% 1.50% 150 bp
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Series H Note 40% 2.00% 200 bp
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and (B) notwithstanding anything set forth in clause (A) to the
contrary, in the event the Termination Date shall be extended pursuant
to the terms hereof, for the period from and after July 16, 2005 to, and
including, the date the Loans are repaid in full, as to each Advance
Rate the sum of (x) the applicable Eurodollar Rate Spread set forth
opposite such Advance Rate for the applicable Collateral type in clause
(A) above, plus (y) .25 percent, or 25 basis points, per annum.
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(b) Section 7.15 is amended to include the word ", CMBS" in the
penultimate sentence after the term "B Notes."
5. Amendments to Servicing Agreement. The Servicing Agreement is amended
as follows:
(a) The terms "Collection Account" and "MSMCI Account" shall both
mean: "Eligible Accounts and shall be denominated "Midland Loan
Services, Inc." in Trust for Capital Trust, Inc.," or "Midland Loan
Services, Inc." in Trust for CT Mezzanine Partners I LLC," or "Midland
Loan Services, Inc." in Trust for CT RE CDO 2004-1 SUB, LLC," as
applicable, or in such other manner as the applicable Owner prescribes."
(b) The term "Owner" or "Owners" as those terms are used in the
Servicing Agreement shall be amended to include CT RE CDO 2004-1 SUB,
LLC; and
(c) Section 9.12 shall be amended to include CT RE CDO 2004-1
SUB, LLC after the term "CT."
6. Amendment to the Custodial Agreement. The Custodial Agreement shall
be amended to include CT RE CDO 2004-1 SUB, LLC as "Borrower" and under the term
"Borrowers" as those terms are used in the Custodial Agreement.
7. Signature of Loan Documents. This Joinder and Amendment is intended
to be the equivalent of a signature page to the Loan Documents. The Joinder
Party acknowledges that its obligations as a party to the Loan Documents are
unconditional and are not subject to the execution of the Loan Documents by any
other party. Lender is authorized to rely on this Joinder and Amendment as
evidence that the Joinder Party has joined in all the Loan Documents and all
obligations thereunder and are fully obligated thereunder.
8. Certain Actions by Lender. Lender shall have the right to (1) renew,
modify, amend, waive, extend, or accelerate any obligations arising under the
Loan Documents, (2) pursue some or all of its remedies against Borrowers or the
Joinder Party, (3) add, release, or substitute any collateral given to Lender as
secured for the Loan, or (4) release Borrowers or the Joinder Party from
liability. Lender may take any of the foregoing actions without consent or
confirmation by the Joinder Party, and no such action shall limit, restrict,
waive, discharge, or otherwise affect the Joinder Party's liability under this
Joinder and Amendment. If Lender and Borrowers agree to any modification or
amendment of the Loan Documents, then the Joinder Party shall be bound by such
agreement whether or not the Joinder Party consents and agrees thereto.
9. Incorporation by Reference. All the Loan Documents, as they now exist
and as they may be amended or modified in the future (whether or not the Joinder
Party is a party to such amendment), are incorporated by reference in this
Joinder and Amendment as if set forth in full.
10. JURY TRIAL WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
JOINDER PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS JOINDER AND
AMENDMENT OR THE LOAN DOCUMENTS. THIS WAIVER IS A MATERIAL INDUCEMENT TO LENDER
TO MAKE THE LOAN.
11. Security. This Joinder and Amendment, and all obligations of the
Joinder Party under the Loan Documents, are secured by all security documents
delivered pursuant to the MLSA.
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12. Governing Law. This Joinder and Amendment shall be governed by the
laws of the State of New York.
13. Inducement. The Joinder Party acknowledges that this Joinder and
Amendment is being executed and delivered to Lender to induce Lender to make the
Loan to Borrowers, and but for this Joinder and Amendment, Lender would not be
willing to make such Loan.
14. No Conditions. This Joinder and Amendment is unconditional. The
Joinder Party's obligations under this Joinder and Amendment is not subject to
the satisfaction of any conditions that have not yet been satisfied.
15. Joint and Several Liability. The obligations of the Joinder Party
and Borrowers are joint and several.
16. Contribution.
a. Right to Contribution. To provide for a just and
equitable contribution among Borrowers and the Joinder
Party, if any payment is made by Borrowers or the
Joinder Party (such party, a "Funding Obligor") under
the Loan Documents or this Joinder and Amendment in
respect of the Loan, such Funding Obligor shall be
entitled to a contribution from each other party for all
payments, damages and expenses, incurred by such Funding
Obligor under or in connection with the Loan, such
contributions to be made in the manner and to the extent
set forth below. Any amount payable as a contribution
under the Loan Documents or this Joinder and Amendment
shall be determined as of the date on which the related
payment is made by a Funding Obligor.
b. Calculation of Contributions. Borrowers and the Joinder
Party shall be liable for contribution to each Funding
Obligor in respect of all payments, damages and expenses
incurred by such Funding Obligor hereunder or under the
Loan, any other Loan Document or this Joinder and
Amendment in an aggregate amount, subject to Section 16
c hereof, equal to (i) the ratio of (x) the then current
aggregate Asset-Specific Loan Balance for the Eligible
Collateral held by such non-Funding Obligor under the
MLSA to (y) the then current aggregate Asset-Specific
Loan Balance of all the Eligible Collateral under the
MLSA multiplied by (ii) the aggregate amount of such
payments, damages and expenses incurred by such Funding
Obligor under or in connection with the Loan. The terms
"Asset-Specific Loan Balance" and "Eligible Collateral"
shall have the meanings ascribed to such terms in the
MLSA, as applicable.
c. Rights to Contribution Subordinated. This Section 16
shall not in any way affect, modify or impair (i)
Lender's or Custodian's rights or remedies under the
Loan Documents or (ii) the obligations of the Joinder
Party hereunder or under the Loan Documents.
Accordingly, Borrowers and the Joinder Party agree that
all of their rights to receive contribution under this
Section 16 (whether for payments, damages, expenses or
otherwise) and all of its rights, if any, to be
subrogated to any of the rights of Lender shall be
subordinated in right of payments (in liquidation or
otherwise) to the prior payment in full of all of the
Loan (whether for principal, interest, premium or
otherwise) and any amounts due to the Custodian under
the Loan Documents. If any amount shall at any time be
paid to a Borrowers or the Joinder Party on account of
such rights of contribution or
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subrogation, or in contravention of the provisions of
this Section 16 c at any time, such amount shall be held
in trust, segregated from the other assets of such
Borrowers or the Joinder Party, as applicable, for the
benefit of Lender and shall promptly be paid to Lender.
d. Preservation of Rights. In the case of any payments,
damages or expenses incurred by a Funding Obligor in
respect of the Loan, this Joinder and Amendment shall
not limit any right which any party may have against any
other person whether or not a party hereto.
e. Asset of Party to Which Contribution is Owing. Borrowers
and the Joinder Party acknowledge that the right of
contribution hereunder shall constitute an asset of the
party to which such contribution is owing including,
without limitation, for purposes of determining any
limitation of liability contained in any guarantee
calculated, directly or indirectly, by reference to the
assets of such party.
17. Acknowledgement by Borrowers. Borrowers hereby agree to this Joinder
and Amendment and all its terms and conditions. Borrowers shall perform and be
bound by all obligations and covenants of the Joinder Party under this Joinder
and Amendment. All such obligations and covenants shall also constitute
obligations and covenants of Borrowers under the Loan Documents. Any breach or
default by the Joinder Party under this Joinder and Amendment or any Loan
Document shall constitute a breach or default by Borrowers under the Loan
Documents.
[SIGNATURES COMMENCE ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the Joinder Party and Borrowers have executed this
Joinder and Amendment as of the Joinder Date.
JOINDER PARTY: BORROWERS:
CT RE CDO 2004-1 SUB, LLC CAPITAL TRUST, Inc.
a Delaware limited liability company a Maryland Corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------- -------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
CT MEZZANINE PARTNERS I LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
LENDER:
XXXXXX XXXXXXX
MORTGAGE CAPITAL INC.,
a New York corporation
By: /s/ [signature illegible]
-------------------------
Name:
Title:
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SERVICER:
MIDLAND LOAN SERVICES, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxxx
-----------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
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CUSTODIAN:
Custodian executes this Joinder
and Amendment in its capacity as
custodian and for the limited
purpose of recognizing Joinder
Party as a party under the
Custodial Agreement as more
specifically provided in this
Joinder and Amendment.
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
a New York banking corporation
By: /s/ Xxxxx Xxxxx
----------------
Name: Xxxxx Xxxxx
Title: Associate
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EXHIBIT A
CDO COLLATERAL
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Description CUSIP # Certificate # Rating Principal Amount
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CAPITAL TRUST RE CDO $6,481,000
2004-1 LTD. Class F Floating
Rate Note due July 2039
("Series F Note")
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CAPITAL TRUST RE CDO $16,204,000
2004-1 LTD. Class G Floating
Rate Note due July 2039
("Series G Note")
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CAPITAL TRUST RE CDO $12,963,000
2004-1 LTD. Class H Floating
Rate Note due July 2039
("Series H Note")
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