Exhibit 10.1
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SECURITIES PURCHASE AGREEMENT
DATED AS OF MAY 11, 2004
among
CAPITAL TRUST, INC.
and
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION
and
CERTAIN STOCKHOLDERS OF CAPITAL TRUST, INC.
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TABLE OF CONTENTS
Page
ARTICLE I Sale of the Shares and the Warrant.......................1
Section 1.1 Authorization of Issuance and Sale and Delivery
of the Shares and the Warrant..........................1
Section 1.2 The Closings of the Sales of the Shares and
the Warrant............................................1
ARTICLE II Certain Agreements.......................................2
Section 2.1 Delivery of Prospectus...................................2
Section 2.2 Filing of Prospectus.....................................2
Section 2.3 Board of Directors.......................................3
Section 2.4 Stockholder Approval.....................................3
Section 2.5 Post-Closing Compliance..................................4
Section 2.6 Commercially Reasonable Efforts..........................4
Section 2.7 Purchaser Lock-Up Agreement..............................4
ARTICLE III Conditions to the Obligations of the Purchaser...........5
Section 3.1 Obligations..............................................5
Section 3.2 Representations and Warranties...........................5
Section 3.3 Absence of Litigation....................................5
Section 3.4 Consents and Approvals...................................5
Section 3.5 No Change in Law.........................................6
Section 3.6 Opinion of Counsel.......................................6
Section 3.7 NYSE Approval............................................6
Section 3.8 Registration Rights Agreement............................6
Section 3.9 Conditions Applicable to Subsequent Closing..............6
ARTICLE IV Conditions to Obligation of the Company..................7
Section 4.1 Representations and Warranties...........................7
Section 4.2 Absence of Litigation....................................7
Section 4.3 Consents and Approvals...................................7
Section 4.4 No Change in Law.........................................7
Section 4.5 NYSE Approval............................................8
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TABLE OF CONTENTS
(continued)
Page
Section 4.6 Conditions Applicable to Subsequent Closing..............8
ARTICLE V Representations and Warranties of the Company............8
Section 5.1 Registration Statement...................................8
Section 5.2 Organization; Good Standing; Qualification
and Power..............................................9
Section 5.3 Authorization; Enforceability; Corporate and
Other Proceedings.....................................9
Section 5.4 Non Contravention........................................9
Section 5.5 Anti-Takeover Law and REIT Restrictions.................10
Section 5.6 Capitalization of the Company...........................10
Section 5.7 Use of Proceeds.........................................11
Section 5.8 SEC Reports.............................................11
Section 5.9 Financial Statements....................................11
Section 5.10 No Material Adverse Change..............................11
Section 5.11 No Consent or Approval Required.........................12
Section 5.12 New York Stock Exchange Listing.........................12
Section 5.13 Tax Matters.............................................12
Section 5.14 Legal Compliance........................................12
Section 5.15 Litigation..............................................13
Section 5.16 Material Contracts......................................13
Section 5.17 Brokers or Finders......................................13
Section 5.18 Liabilities.............................................13
Section 5.19 Loan and Investment Losses..............................13
ARTICLE VI Representations and Warranties of the Purchaser.........14
Section 6.1 Organization; Good Standing; Qualification and
Power.................................................14
Section 6.2 Authorization; Enforceability; Corporate and
Other Proceedings.....................................14
Section 6.3 Non Contravention.......................................14
Section 6.4 No Consent or Approval Required.........................15
Section 6.5 Beneficial Ownership....................................15
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TABLE OF CONTENTS
(continued)
Page
Section 6.6 Brokers or Finders......................................15
ARTICLE VII Termination.............................................15
Section 7.1 Termination Events......................................15
Section 7.2 Effect of Termination...................................16
ARTICLE VIII Indemnification.........................................16
Section 8.1 Indemnification Generally...............................16
Section 8.2 Indemnification Procedures For Third Party
Claims................................................16
Section 8.3 Survival of Representations, Warranties,
Agreements, Etc. .....................................17
ARTICLE IX Miscellaneous...........................................17
Section 9.1 Expenses and Taxes......................................17
Section 9.2 Further Assurances......................................18
Section 9.3 Public Announcement.....................................18
Section 9.4 No Third Party Beneficiaries............................18
Section 9.5 Entire Agreement........................................19
Section 9.6 Successors and Assigns..................................18
Section 9.7 Counterparts............................................18
Section 9.8 Notices.................................................19
Section 9.9 Governing Law; Submission to Jurisdiction...............20
Section 9.10 Amendments and Waivers..................................20
Section 9.11 Incorporation of Schedules..............................21
Section 9.12 Construction............................................21
Section 9.13 Interpretation..........................................21
Section 9.14 Severability............................................21
Section 9.15 Waiver of Jury Trial....................................22
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Annexes
Annex I - Certain Definitions
Exhibits
Exhibit A Form of Warrant
Exhibit B Form of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Opinion
Exhibit C Form of ▇▇▇▇▇▇▇ LLP Opinion
Exhibit D Form of Registration Rights Agreement
Schedules
Schedule A
Schedule B
Schedule 5.5
Schedule 5.10
Schedule 5.19
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of May
10, 2004, is entered into among Capital Trust, Inc., a Maryland corporation (the
"Company"), ▇. ▇. ▇▇▇▇▇▇▇ Corporation, a Delaware corporation ("Berkley"), and,
solely for purposes of Section 2.4 hereof, the holders of shares of Class A
Common Stock, par value $.01 per share, of the Company (the "Common Stock")
identified on Schedule A attached hereto (collectively, the "Stockholders").
Berkley and its designated controlled Affiliates identified on Schedule B
attached hereto are collectively referred to in this Agreement as the
"Purchaser" (provided that only Berkley shall be a direct party hereto and
responsible for its obligations hereunder).
RECITALS
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Company, (1) on the date hereof (i) 1,310,000
shares (the "Tranche 1 Shares") of Common Stock and (ii) one or more warrant(s)
in the form attached as Exhibit A hereto (the "Warrant") initially exercisable
for a total of 365,000 shares (the "Warrant Shares") of Common Stock and (2) on
the Subsequent Closing Date (as defined below), 325,000 shares (the "Tranche 2
Shares" and, together with the Tranche 1 Shares and the Warrant Shares, the
"Shares") of Common Stock;
NOW, THEREFORE, in consideration of the mutual promises herein made, and
in consideration of the representations, warranties, and covenants herein
contained, the Company and the Purchaser agree as follows:
All capitalized terms used and not otherwise defined in this Agreement
shall have the definitions set forth on Annex I hereto.
ARTICLE I
Sale of the Shares and the Warrant
Section 1.1 Authorization of Issuance and Sale and Delivery of the
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Shares and the Warrant.
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(1) Subject to the terms and conditions hereof, the Purchaser
agrees to purchase at the Initial Closing (as defined below), and the Company
agrees to sell and issue to the Purchaser at the Initial Closing, the Tranche 1
Shares and the Warrant.
(2) Subject to the terms and conditions hereof, the Purchaser
agrees to purchase at the Subsequent Closing (as defined below), and the Company
agrees to sell and issue to the Purchaser at the Subsequent Closing, the Tranche
2 Shares.
Section 1.2 The Closings of the Sales of the Shares and the Warrant.
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(1) Subject to the terms and conditions of this Agreement, the
sale of the Tranche 1 Shares and the Warrant by the Company to the Purchaser
contemplated hereby shall
take place at a closing (the "Initial Closing") on the date hereof (the "Initial
Closing Date"), simultaneously with the execution and delivery of this
Agreement, at the offices of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"). Subject to the terms
and conditions of this Agreement, the sale of the Tranche 2 Shares by the
Company to the Purchaser contemplated hereby shall take place at a closing (the
"Subsequent Closing") at the Closing Location at 10:00 a.m., New York time, on
the later of (a) June 18, 2004 or (b) the date that is two Business Days
following the satisfaction or waiver of all of the conditions contained herein
(the "Subsequent Closing Date"), or at such other time and date as may be agreed
upon between the Purchaser and the Company. For the purposes of this Agreement,
(i) the Initial Closing and the Subsequent Closing may be referred to herein as
a "Closing" and (ii) the Initial Closing Date and the Subsequent Closing Date
may be referred to herein as a "Closing Date".
(2) At the Initial Closing, on the terms and subject to the
conditions contained herein, the Company shall issue and deliver the Tranche 1
Shares and the Warrant against receipt by the Company of $30,654,000 by wire
transfer of immediately available funds to an account designated by the Company
prior to the Initial Closing in writing. The Tranche 1 Shares and the Warrant
shall be evidenced by certificates, registered in the name of the Purchaser or
the name of the Purchaser's nominee(s) or designee(s) identified to the Company
at least two Business Days prior to such Closing.
(3) At the Subsequent Closing, on the terms and subject to the
conditions contained herein, the Company shall issue and deliver the Tranche 2
Shares against receipt by the Company of $7,605,000 by wire transfer of
immediately available funds to an account designated by the Company prior to the
Subsequent Closing in writing. The Tranche 2 Shares shall be evidenced by a
certificate, registered in the name of the Purchaser or the name of the
Purchaser's nominee(s) or designee(s) identified to the Company at least two
Business Days prior to such Closing.
ARTICLE II
Certain Agreements
Section 2.1 Delivery of Prospectus. Concurrently with the execution and
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delivery of this Agreement and the Initial Closing, the Company is delivering to
the Purchaser a final prospectus supplement relating to the offer and sale of
the Shares to the Purchaser together with a prospectus to be filed with the
Commission in accordance with Rule 424(b) under the Securities Act (the
"Prospectus") to amend the prospectus forming part of the Company's registration
statement on Form S-3 (file number 333-111261) (the "Registration Statement").
Section 2.2 Filing of Prospectus.
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Concurrently with the Initial Closing, the Company will file the Prospectus in
the form delivered to the Purchaser with the Commission pursuant to Rule 424(b)
under the Securities Act.
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Section 2.3 Board of Directors. On the date hereof, the Company shall,
consistent with and subject to the Maryland General Corporation Law ("MGCL"),
acting through its board of directors (the "CT Board"), appoint to the CT Board
one (1) representative designated by the Purchaser. From and after the date
hereof until the earlier of (i) such time as the Purchaser collectively owns
less than fifty percent (50%) of the Shares purchased by the Purchaser hereunder
and pursuant to the Warrant and (ii) such time after May 10, 2007 as the
Purchaser collectively owns less than an aggregate of five (5%) of the Company's
outstanding shares of Common Stock on a fully diluted basis assuming the
conversion and exercise of outstanding convertible or exercisable securities
(the "Termination Date"), the Company shall, consistent with and subject to the
MGCL, acting through the CT Board, nominate for election to the CT Board one (1)
representative designed by the Purchaser (the "Purchaser Designee"). At any time
when the Purchaser shall have the right to designate a representative for
appointment, or nomination for election, to the CT Board, pursuant to this
Section 2.3, the Company shall give ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ notice (in the same
manner as notice is given to directors) and permit ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to attend
as observer, all meetings of the CT Board.
Section 2.4 Stockholder Approval.
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(1) From and after the date hereof until the Termination Date,
on each occasion at which the holders of Common Stock of the Company meet, or
act by written consent in lieu of meeting, for the purpose of electing
directors, each Stockholder shall vote all shares of Common Stock they
beneficially own or over which they have voting control over for the election of
the Purchaser Designee in accordance with the provisions of Section 2.4(2) at
such time as such designee stands for election to the CT Board.
(2) From and after the date hereof until the Termination Date,
the Stockholders who are directors of the Company shall, consistent with and
subject to their duties as directors under the MGCL, in their capacity as
directors, take such action as may reasonably be within their power to cause the
CT Board to appoint, elect or nominate for election to the CT Board the
Purchaser Designee and shall promptly provide prior written notice of the CT
Board's consideration of individuals to be nominated for election as directors
of CT, whereupon the Purchaser shall promptly provide written notice of the
name(s) of the Purchaser Designee designated by them to the extent that the
incumbent Purchaser Designee is unable to stand for reelection for any reason or
the Purchaser intends to designate an individual to replace such designee and
biographical information relating to such designee in a form compliant with
applicable securities laws and regulations and with the charter and bylaws of
the Company. In the absence of such notice from the Purchaser, the incumbent
Purchaser Designee then serving on the CT Board shall be deemed to be the
Purchaser Designee designated by the Purchaser. From and after the date hereof
until the Termination Date, any Stockholder who is a director of the Company
shall, consistent with and subject to his duties as a director under the MGCL,
in his capacity as a director, recommend to the CT Board that the board nominate
the Purchaser Designee for, and actively solicit stockholder proxies in favor of
his or her, election as a director of the Company.
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(3) From and after the date hereof until the Termination Date,
the Stockholders shall not take, or support the taking of, any action to remove
as a director the Purchaser Designee unless the Purchaser has requested that
such director be removed (in which case the Stockholders shall cooperate in
effecting such removal and electing a replacement). In the event that the
Purchaser Designee ceases to serve as a director of the Company due to death,
resignation or removal of said director at any time prior to the Termination
Date, the Purchaser may submit written notice to the Stockholders designating an
individual to replace said Purchaser Designee. From and after the date hereof
until the Termination Date, any Stockholder who is a director of the Company
shall, consistent with and subject to his duties as a director under the MGCL,
in his capacity as a director, promptly recommend that the CT Board appoint such
replacement designee as a director of the Company to fill any vacancy resulting
from the death, resignation or removal of the Purchaser Designee and, when
called for a vote of the CT Board, vote for such replacement designee.
(4) At the Company's 2004 annual meeting of stockholders or at
any adjournment or postponement thereof, the Stockholders shall vote (or cause
to be voted) all shares of Common Stock they beneficially own or have voting
control over in favor of the issuance and sale of the Tranche 2 Shares and the
Warrant Shares.
(5) From and after the date hereof until the earlier of (i) the
Subsequent Closing Date and (ii) the termination of this Agreement in accordance
with Section 7.1 hereof, each Stockholder shall not sell, transfer or otherwise
dispose of any of the shares of Common Stock such Stockholder beneficially owns
or over which such Stockholder has voting control; provided, however, that the
foregoing shall not prohibit any Stockholder from pledging or creating any lien
or granting a security interest on any shares of Common Stock beneficially owned
by such Stockholder or over which such Stockholder has voting control.
(6) Notwithstanding anything to the contrary herein, the rights
and obligation contained in Sections 2.4(5) shall terminate and shall be of no
further legal force on the earlier of (i) the Subsequent Closing Date and (ii)
the termination of this Agreement in accordance with Section 7.1 hereof.
Section 2.5 Post-Closing Compliance. From and after the Initial
-----------------------
Closing Date until the Termination Date, the Company will use its commercially
reasonable efforts to comply with all applicable rules and regulations of the
Commission and the New York Stock Exchange or such other securities exchange or
quotation system on which the Common Stock is then listed for trading or quoted,
as the case may be.
Section 2.6 Commercially Reasonable Efforts. Upon the terms and
-------------------------------
subject to the conditions of this Agreement, from and after the Initial Closing
Date until the Termination Date, the Company shall use its commercially
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable consistent with
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applicable law to consummate and make effective in the most expeditious manner
practicable the transactions contemplated hereby.
Section 2.7 Purchaser Lock-Up Agreement.
---------------------------
From and after the date hereof until November 11, 2004, the
Purchaser shall not sell, transfer or otherwise dispose of any of the Shares or
Warrants beneficially owned by the Purchaser or over which the Purchaser has
voting control (the "Beneficially Owned Securities"); provided, however, that
the foregoing shall not prohibit the Purchaser from pledging or creating any
lien or granting a security interest on any of the Beneficially Owned Securities
or transferring any of the Beneficially Owned Securities to any controlled
Affiliate of Berkley; provided, further, that, if as a result of action taken by
the Company, the Purchaser shall at any time beneficially own Common Stock
(including any Warrant Shares obtained upon exercise of the Warrants)
representing 20% or more of the outstanding shares of voting stock of the
Company, the foregoing shall not prohibit the Purchaser from selling,
transferring or otherwise disposing of up to such number of Shares as shall be
necessary so that after such sale, transfer or disposition, the Purchaser shall
beneficially own shares of Common Stock representing less than 20% of the
outstanding shares of voting stock of the Company.
ARTICLE III
Conditions to the Obligations of the Purchaser
The obligations of the Purchaser to consummate the transactions
to be performed by it in connection with any Closing are subject to satisfaction
of each of the following conditions as of such Closing, unless otherwise waived
in writing by the Purchaser:
Section 3.1 Obligations.
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The obligations of the Company set forth in Article II hereof shall be
complied with and performed in all material respects by the Company.
Section 3.2 Representations and Warranties.
------------------------------
The representations and warranties of the Company set forth in Article
V hereof shall be true, correct and complete in all material respects on and as
of the applicable Closing Date (other than those that are qualified by a
reference to materiality, which representations and warranties as so qualified
shall be true, correct and complete in all respects).
Section 3.3 Absence of Litigation.
---------------------
There shall not be (a) any Order of any nature issued by a Governmental
Entity with competent jurisdiction directing that the transactions provided for
herein or any material aspect of them not be consummated as herein provided or
(b) any Proceeding pending wherein an Order would prevent the performance of
this Agreement or the consummation of any material aspect of
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the transactions or events contemplated by this Agreement, declare unlawful any
material aspect of the transactions or events contemplated by this Agreement,
cause any material aspect of the transactions contemplated by this Agreement to
be rescinded or be reasonably likely to have a Material Adverse Effect on the
Company or the Purchaser.
Section 3.4 Consents and Approvals.
----------------------
All consents, approvals or authorizations of, or declarations to or
filings with, any Governmental Entity necessary to permit the Company and the
Purchaser to perform their obligations under this Agreement and consummate the
transactions contemplated thereby have been obtained or made and are in full
force and effect.
Section 3.5 No Change in Law.
----------------
There shall not have been any change in any Law applicable to the
Purchaser that would prevent the performance of this Agreement or the
consummation by the Purchaser of any material aspect of the transactions
contemplated hereby.
Section 3.6 Opinion of Counsel.
------------------
The Purchaser shall have received an opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, counsel to the Company, in the form attached as Exhibit B hereto,
and an opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Company, in the form
attached as Exhibit C hereto. For purposes of the Subsequent Closing, the
Purchaser shall have received a bringdown of the opinions referred to in this
Section 3.6 as of the Subsequent Closing Date.
Section 3.7 NYSE Approval.
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The New York Stock Exchange shall have admitted the Tranche 1 Shares and
the Tranche 2 Shares and Warrant Shares to listing, subject to official notice
of issuance and, in the case of the Tranche 2 Shares and the Warrant Shares,
subject to notice of shareholder approval of the issuance of the Tranche 2
Shares and the Warrant Shares.
Section 3.8 Registration Rights Agreement.
-----------------------------
The Registration Rights Agreement, in the form attached as Exhibit D
hereto, shall have been executed by the Company.
Section 3.9 Conditions Applicable to Subsequent Closing.
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In addition to the foregoing conditions, the obligations of the
Purchaser to consummate the transactions to be performed by it in connection
with the Subsequent Closing are subject to satisfaction of each of the following
conditions, unless otherwise waived in writing by the Purchaser:
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(1) during the period from the date of this Agreement to the
Subsequent Closing Date, there shall not have occurred any event that,
individually or when taken together with any other event or circumstance, has
had or could reasonably be expected to have a Material Adverse Effect on the
Company;
(2) the issuance of the Tranche 2 Shares and the Warrant
Shares, shall have been approved by an affirmative vote of a majority of the
votes cast at the Company's 2004 annual meeting of Stockholders or at any
adjournment or postponement thereof in accordance with applicable New York Stock
Exchange rules (the "Stockholder Approval"); and
(3) in no way limiting the foregoing, the representations and
warranties of the Company set forth in Section 5.18 and Section 5.19 hereof
shall be true, correct and complete in all material respects on and as of the
Subsequent Closing Date (as if made on the Subsequent Closing Date) (other than
those that are qualified by a reference to materiality, which representations
and warranties as so qualified shall be true, correct and complete in all
respects).
ARTICLE IV
Conditions to Obligation of the Company
The obligations of the Company to consummate the transactions to be
performed by it in connection with any Closing are subject to satisfaction of
each of the following conditions as of such Closing, unless otherwise waived in
writing by the Company:
Section 4.1 Representations and Warranties.
------------------------------
The representations and warranties of the Purchaser set forth in
Article VI hereof shall be true, correct and complete in all material respects
on and as of the applicable Closing Date (other than those that are qualified by
a reference to materiality, which representations and warranties as so qualified
shall be true, correct and complete in all respects).
Section 4.2 Absence of Litigation.
---------------------
There shall not be (a) any Order of any nature issued by a Governmental
Entity with competent jurisdiction directing that the transactions provided for
herein or any material aspect of them not be consummated as herein provided or
(b) any Proceeding pending wherein an Order would prevent the performance of
this Agreement or the consummation of any material aspect of the transactions or
events contemplated hereby, declare unlawful any material aspect of the
transactions or events contemplated by this Agreement, or cause any material
aspect of any transaction contemplated by this Agreement to be rescinded or be
reasonably likely to have a Material Adverse Effect on the Company or the
Purchaser.
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Section 4.3 Consents and Approvals.
----------------------
All consents, approvals or authorizations of, or declarations to or
filings with, any Governmental Entity necessary to permit the Company and the
Purchaser to perform their obligations under this Agreement and consummate the
transactions contemplated thereby have been obtained or made and are in full
force and effect.
Section 4.4 No Change in Law.
----------------
There shall not have been any change in any Law applicable to the
Company that would prevent the performance of this Agreement or the consummation
by the Company of any material aspect of the transactions contemplated hereby.
Section 4.5 NYSE Approval.
-------------
The New York Stock Exchange shall have admitted the Tranche 1 Shares
and the Tranche 2 Shares and Warrant Shares to listing, subject to official
notice of issuance and, in the case of the Tranche 2 Shares and the Warrant
Shares, subject to notice of shareholder approval of the issuance of the Tranche
2 Shares and the Warrant Shares.
Section 4.6 Conditions Applicable to Subsequent Closing.
-------------------------------------------
(1) In addition to the foregoing conditions, the obligations of
the Company to consummate the transactions to be performed by it in connection
with the Subsequent Closing are subject to the receipt of the Stockholder
Approval.
ARTICLE V
Representations and Warranties of the Company
As an inducement to the Purchaser to enter into and perform its
obligations under this Agreement, the Company hereby represents and warrants as
of the Initial Closing and the Subsequent Closing to the Purchaser as follows:
Section 5.1 Registration Statement.
----------------------
(1) The Company meets the requirements for use of Form S-3
under the Securities Act and the Registration Statement has been filed with the
Commission for registration under the Securities Act of the offering and sale of
debt and equity securities of the Company and has been declared effective under
the Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, or to the best knowledge of the Company, are contemplated by
the Commission.
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(2) On the effective date of the Registration Statement (the
"Effective Date"), the Registration Statement did, and when the Prospectus is
first filed with the Commission in accordance with Rule 424(b) under the
Securities Act and at the Closing, the Prospectus will, comply in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act and the respective rules thereunder; on the Effective Date, the Registration
Statement did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(b) and at the Closing, the Prospectus will not, include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Section 5.2 Organization; Good Standing; Qualification and Power.
----------------------------------------------------
The Company and each of its Subsidiaries are duly organized,
validly existing and in good standing under the Laws of their respective
jurisdictions of formation, have all requisite power (corporate or otherwise) to
carry on their respective businesses as presently being conducted and are
qualified to do business and in good standing in every jurisdiction in which the
failure so to qualify or be in good standing could reasonably be expected to
have a Material Adverse Effect on the Company.
Section 5.3 Authorization; Enforceability; Corporate and Other
--------------------------------------------------
Proceedings.
-------------
(1) The Company has all requisite power and authority
(corporate or otherwise) to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement has been duly authorized by all
necessary corporate action (corporate or otherwise) on the part of the Company,
and this Agreement has been duly executed and delivered by the Company, and,
assuming due execution and delivery of this Agreement by the Purchaser,
constitutes the valid and legally binding obligation of the Company, enforceable
in accordance with its terms and conditions, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
(2) The authorization, issuance, sale and delivery of the
Shares and the Warrant have been duly authorized by all requisite action of the
CT Board and, to the extent required by applicable Law or the rules of the New
York Stock Exchange as of the Subsequent Closing Date, will have been duly
approved by the Company's stockholders. The Shares being issued as of the
applicable Closing Date will be validly issued and outstanding, fully paid and
nonassessable, with no personal Liability attaching to the ownership thereof,
free and clear of any Liens whatsoever and with no restrictions on the voting
rights thereof, and other incidents of record and beneficial ownership
pertaining thereto, except as provided in the Company's charter. The Warrant
Shares, if and when issued in accordance with the terms of the Warrant and this
Agreement, will be validly issued and outstanding, fully paid and nonassessable,
with
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no personal Liability attaching to the ownership thereof, free and clear of
any Liens whatsoever and with no restrictions on the voting rights thereof, and
other incidents of record and beneficial ownership pertaining thereto, except as
provided in the Company's charter.
Section 5.4 Non Contravention.
-----------------
The execution, delivery and performance by the Company of this
Agreement, the consummation of the transactions contemplated hereby and
compliance with the provisions thereof, including the issuance, sale and
delivery of the Shares and the Warrant have not, do not and shall not, (a)
violate any provision of the Fundamental Documents of the Company, (b) violate
any Law to which the Company is subject, (c) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or require any
notice under any material contract to which the Company is a party or (d) result
in the imposition of any Lien upon any of the Assets of the Company, except
where such violation, conflict, default, acceleration, termination,
modification, cancellation or imposition with respect to clauses (b), (c) and
(d) could not reasonably be expected to have a Material Adverse Effect on the
Company.
Section 5.5 Anti-Takeover Law and REIT Restrictions.
----------------------------------------
(1) The CT Board has amended the Amended and Restated Bylaws of
the Company to provide that Title 3, Subtitle 7 of the Corporations and
Associations Article of the Annotated Code of Maryland (or any successor
statute) shall not apply to any acquisition of shares of Class A Common Stock by
the Purchaser and that such amendment shall not be repealed without the consent
of Berkley.
(2) The CT Board has resolved that the Purchaser shall be
excluded from the definition of "interested stockholder" as a result of the
approval of the offering of the Shares and Warrant pursuant to ss. 3-601(j)(3)
of the MGCL.
(3) The CT Board has resolved that, pursuant to Section 7.2.7
of the Company's charter, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and up to one other major
shareholder of Berkley, who shall be identified in writing to the Company by
Berkley upon the request of the Company from time to time (the "Berkley
Shareholder"), shall be exempt from the Aggregate Stock Ownership Limit (as
defined in the Company's charter) and the Common Stock Ownership Limit (as
defined in the Company's charter), and an Excepted Holder Limit (as defined in
the Company's charter) of 6.0% and 4.0% of the outstanding Common Stock shall be
established for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Berkley Shareholder, respectively.
Section 5.6 Capitalization of the Company.
-----------------------------
(1) As of the Initial Closing Date, the authorized capital
stock of the Company and the issued and outstanding shares of the capital stock
of the Company after giving effect to the sale of the Tranche 1 Shares and the
Tranche 2 Shares is as set forth on Schedule 5.6.
10
(2) Except as contemplated by the Agreement or as otherwise set
forth on Schedule 5.6, there are, and immediately after consummation of the
Closing there will be, no (i) outstanding warrants, options, agreements,
convertible securities or other commitments or instruments pursuant to which the
Company is or may become obligated to issue or sell any shares of its capital
stock or other securities or (ii) preemptive or similar rights to purchase or
otherwise acquire shares of the capital stock or other securities of the Company
pursuant to any provision of Law, the Company's Fundamental Documents or any
contract, "shareholders' rights plan", "poison pill" or similar plan,
arrangement or scheme to which the Company is a party.
(3) All shares of the capital stock and other securities issued
by the Company have been issued in transactions in accordance with applicable
foreign, state and federal Laws and regulations governing the sale and purchase
of securities.
Section 5.7 Use of Proceeds.
---------------
Unless otherwise consented to in writing by the Purchaser, the proceeds
received by the Company from the sale of the Shares and the Warrant and, if and
when issued, the Warrant Shares, shall be used by the Company for general
corporate purposes, including funding balance sheet investments, capital
commitments to private equity funds, repayment of indebtedness, working capital
purposes and potential business acquisitions.
Section 5.8 SEC Reports.
-----------
The Company has since its inception filed all required forms, reports
and documents required to be filed by it ("SEC Reports") with the Commission
when due in accordance with the Securities Act and Exchange Act. As of their
respective dates, the SEC Reports complied in all material respects with all
applicable requirements of the Exchange Act or the Securities Act, as the case
may be. As of their respective dates, none of the SEC Reports contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated or incorporated by reference therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
Section 5.9 Financial Statements.
--------------------
The consolidated financial statements of the Company contained in the
SEC Reports (the "Financial Statements") complied as to form in all material
respects with the published rules and regulations of the Commission with respect
thereto, were prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present in all material respects, in conformity with GAAP (except as
may be indicated in the notes thereto), the consolidated financial position of
the Company and its consolidated Subsidiaries as of the dates thereof and their
consolidated results of operations and changes in financial position for the
periods then ended (subject to normal year-end adjustments in the case of any
unaudited interim financial statements).
11
Section 5.10 No Material Adverse Change.
--------------------------
Since December 31, 2003, except in each case as disclosed or
contemplated in the Prospectus (A) there has been no material adverse change in
or affecting the business, Assets, condition (financial or otherwise), operating
results or Liabilities of the Company and its Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, (B) there have been
no transactions entered into by the Company or any of its Subsidiaries which are
material with respect to the Company and its Subsidiaries taken as a whole,
other than those in the ordinary course of business, and (C) except in the
ordinary course of business, there has not been any material decrease in the
total Assets of the Company and its Subsidiaries, taken as a whole, or any
material increase in the total Liabilities of the Company and its Subsidiaries,
taken as a whole.
Section 5.11 No Consent or Approval Required.
-------------------------------
Except as set forth on Schedule 5.11, no material consent, approval or
authorization of, or declaration to or filing with, any Person is required by
the Company for the valid authorization, execution and delivery by the Company
of this Agreement or for its consummation of the transactions contemplated
hereby or for the valid authorization, issuance and delivery of the Shares and
the Warrant, other than those consents, approvals, authorizations, declarations
or filings which have been obtained or made, as the case may be.
Section 5.12 New York Stock Exchange Listing.
----------------------------------
The New York Stock Exchange has admitted the Tranche 1 Shares and the
Tranche 2 Shares and Warrant Shares to listing, subject to official notice of
issuance and, in the case of the Tranche 2 Shares and the Warrant Shares,
subject to notice of shareholder approval of the issuance of the Tranche 2
Shares and the Warrant Shares.
Section 5.13 Tax Matters.
--------------
The CT Board has authorized the Company to file its tax
returns to be taxed as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"), for taxable year ending
December 31, 2003, such authorization has not been amended, revoked or
rescinded, the Company has operated in conformity with the requirements for
qualification as a REIT under the Code since January 1, 2003 and the Company
intends to properly and formally elect to be taxed as a REIT when it files its
federal income tax returns for the taxable year ending December 31, 2003 on or
before September 15, 2004.
Section 5.14 Legal Compliance.
-------------------
The Company and its Subsidiaries are in compliance with, and the
respective businesses of the Company and its Subsidiaries are being conducted in
compliance with, all applicable
12
Laws, Orders and Permits which are necessary to conduct the business now
operated by them, and neither the Company nor any of its Subsidiaries has
received written notice of any Proceeding alleging any failure to so comply,
except in each case such as could not reasonably be expected to have a Material
Adverse Effect. The material Permits under which the Company or any of its
Subsidiaries is operating or bound (a) constitute all material Permits used or
required in the conduct of the respective businesses of the Company and its
Subsidiaries as presently conducted and (b) are in full force and effect, except
in each case as could not reasonably be expected to have a Material Adverse
Effect.
Section 5.15 Litigation.
----------
Except as disclosed in the Registration Statement, there is no
Proceeding pending or, to the knowledge of the Company, threatened against, or
affecting the Assets of the Company or any of its Subsidiaries or any of their
respective predecessors, in each case which could reasonably be expected to have
a Material Adverse Effect.
Section 5.16 Material Contracts.
------------------
Neither the Company nor any of its Subsidiaries is in default, and no
event has occurred which, with due notice or lapse of time or both, would
constitute such a default under, any material contract, agreement, instrument,
commitment and other arrangement to which the Company or any of its Subsidiaries
is a party or otherwise relating to or affecting any of their respective assets,
including, without limitation, employment, severance or consulting agreements,
loan, credit or security agreements, joint venture agreements and license and
distribution agreements, except in each case such as could not reasonably be
expected to have a Material Adverse Effect.
Section 5.17 Brokers or Finders.
------------------
The Company has not retained any investment banker, broker or finder in
connection with the purchase of the Shares and the Warrant.
Section 5.18 Liabilities.
-----------
As of the Initial Closing Date, to the best knowledge of the Company,
the Company has no liability or obligation, absolute or contingent (individually
or in the aggregate), including, without limitation, any tax liability due and
payable, which is not reflected on the consolidated balance sheet of the Company
as of December 31, 2003 contained in the Financial Statements for the year ended
December 31, 2003 (the "Balance Sheet"), other than liabilities and obligations
incurred after the date of the Balance Sheet in the ordinary course of business.
To the best knowledge of the Company, there were no "loss contingencies" (as
such term is used in Statement of Financial Accounting Standards No. 5 issued by
the Financial Accounting Standards Board in March 1975) that were not adequately
provided for on the Balance Sheet.
13
Section 5.19 Loan and Investment Losses.
--------------------------
As of the Initial Closing Date, to the best knowledge of the Company,
except as set forth on Schedule 5.19 hereof, none of the Company's loans are in
default and the Company has not received notice from any borrower under any of
its loans that a default is imminent and all of the Company's investments are
making payments in accordance with their contractual terms.
ARTICLE VI
Representations and Warranties of the Purchaser
As an inducement to the Company to enter into and perform its
obligations under this Agreement, the Purchaser hereby represents and warrants
as of the Initial Closing and the Subsequent Closing to the Company as follows:
Section 6.1 Organization; Good Standing; Qualification and Power.
----------------------------------------------------
The Purchaser is a corporation duly incorporated, validly existing and
in good standing under the Laws of its jurisdiction of formation, has all
requisite power (corporate or otherwise) to carry on its business as presently
being conducted and is qualified to do business and in good standing in every
jurisdiction in which the failure so to qualify or be in good standing could
reasonably be expected to have a Material Adverse Effect on the Purchaser.
Section 6.2 Authorization; Enforceability; Corporate and Other
--------------------------------------------------
Proceedings.
-----------
The Purchaser has all requisite power and authority (corporate or
otherwise) to execute and deliver this Agreement and any and all instruments
necessary or appropriate in order to effectuate fully the terms and conditions
of this Agreement and all related transactions and to perform its obligations
hereunder and thereunder. This Agreement, and the transactions contemplated
hereby have been duly authorized by all necessary action (corporate or other) on
the part of the Purchaser, and this Agreement has been duly executed and
delivered by the Purchaser, and, assuming due execution and delivery of this
Agreement by the Company, constitutes the valid and legally binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its terms
and conditions, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting the enforcement of creditors' rights generally and to general
equitable principles.
Section 6.3 Non Contravention
-----------------
The execution, delivery and performance by the Purchaser of this
Agreement, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof, including the purchase of the Shares and
the Warrant have not, do not and shall not, (a) violate any provision of the
Fundamental Documents of the Purchaser, (b) violate any Law to which the
Purchaser is subject or (c) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify
14
or cancel, or require any notice under any material contract to which the
Purchaser is a party, except where such violation, conflict, default,
acceleration, termination, modification or cancellation with respect to clauses
(b) and (c) could not reasonably be expected to have a Material Adverse Effect
on the Purchaser.
Section 6.4 No Consent or Approval Required.
-------------------------------
No material consent, approval or authorization of, or declaration to or
filing with, any Person is required by the Purchaser for the valid
authorization, execution and delivery by the Purchaser of this Agreement or for
its consummation of the transactions contemplated hereby other than those
consents, approvals, authorizations, declarations or filings which have been
obtained or made, as the case may be.
Section 6.5 Beneficial Ownership.
--------------------
As of the Initial Closing Date, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is currently the
owner of less than 15% of the outstanding shares of Berkley and the other
Purchasers. For purposes of the foregoing, "own" means ownership or determined
in accordance with Section 856(h) of the Internal Revenue Code of 1986, as
amended.
Section 6.6 Brokers or Finders.
------------------
The Purchaser has not retained any investment banker, broker or finder
in connection with the purchase of the Shares and the Warrant.
ARTICLE VII
Termination
Section 7.1 Termination Events.
------------------
This Agreement may, by notice given prior to or at the Subsequent
Closing, be terminated:
(1) by either the Company or the Purchaser if a material breach
or default of any provision of this Agreement has been committed by the other
party which would make the conditions to this Agreement incapable of being
satisfied; provided that neither party may terminate this Agreement prior to the
date set forth in paragraph (3) below if the breaching or defaulting party has
not had an adequate opportunity to cure such breach or default;
(2) by mutual consent of the Company and the Purchaser;
(3) by the Purchaser or the Company if the Stockholder Approval
has not been obtained on or before June 25, 2004; or
15
(4) by either the Company or the Purchaser if the Subsequent
Closing has not occurred (other than through the failure of any party seeking to
terminate this Agreement to comply fully with its obligations under this
Agreement) on or before June 30, 2004 or such later date as the parties may
agree upon.
Section 7.2 Effect of Termination.
---------------------
Each party's right of termination under Section 7.1 is in addition to
any other rights it may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this Agreement
is terminated pursuant to Section 7.1, all further obligations of the parties
under this Agreement will terminate, except that the obligations in Sections 8.1
and 8.2 and Article IX will survive; provided, however, that if this Agreement
is terminated by a party because of the breach or default of the Agreement by
the other party or because one or more of the conditions to the terminating
party's obligations under this Agreement is not satisfied as a result of the
other party's failure to comply with its obligations under this Agreement, the
terminating party's right to pursue all legal remedies will survive such
termination unimpaired.
ARTICLE VIII
Indemnification
Section 8.1 Indemnification Generally.
-------------------------
The Company, on the one hand, and the Purchaser, on the other hand
(each an "Indemnifying Party"), shall indemnify the other from and against any
and all losses, damages, liabilities, claims, charges, actions, proceedings,
demands, judgments, settlement costs and expenses of any nature whatsoever
(including, without limitation, reasonable attorneys' fees and expenses) or
deficiencies (collectively, "Losses") resulting from any breach of a
representation, warranty or covenant by the Indemnifying Party and all claims,
charges, actions or proceedings incident to or arising out of the foregoing. The
Company shall further indemnify the Purchaser for any and all Losses incurred by
the Purchaser which arise out of any claim by or on behalf of any stockholder,
security holder, private equity fund investor or joint venture partner of the
Company in connection with any act or omission by the Company in respect of its
obligations under this Agreement. Except with respect to third party claims
being defended in good faith or claims for indemnification with respect to which
there exists a good faith dispute, the Indemnifying Party shall satisfy its
obligations hereunder within thirty (30) days of receipt of a notice of claim
under this Section 8.1.
Section 8.2 Indemnification Procedures For Third Party Claims.
-------------------------------------------------
If a claim by a third party is made against a Person entitled to
indemnification under this Article VIII (an "Indemnified Party") and such
Indemnified Party intends to seek indemnity with respect thereto from any
Indemnifying Party, such Indemnified Party shall give notice in writing as
promptly as reasonably practicable to each such Indemnifying Party of any action
commenced
16
against or by it in respect of which indemnity may be sought hereunder, but
failure to so notify an Indemnified Party shall not relieve such Indemnifying
Party from any liability that it may have otherwise than on account of this
indemnity agreement so long as such failure shall not have materially prejudiced
the position of the Indemnifying Party. Upon such notification, the Indemnifying
Party shall assume the defense of such action brought by a third party, and
after such assumption, the Indemnified Party shall not be entitled to
reimbursement of any expenses incurred by it in connection with such action
except as described below. In any such action, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party shall have failed to promptly assume and thereafter vigorously conduct
such defense, (ii) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the contrary or (iii) the named parties in any such action
(including any impleaded parties) include both the Indemnifying Party and the
Indemnified Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing or conflicting interests
between them. No Indemnifying Party, in the defense of a third party claim
shall, except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect of such claim. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent (which shall not be unreasonably withheld or delayed by such
Indemnifying Party), but if settled with such consent or if there be final
judgment for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss, damage or liability by reason of
such settlement or judgment.
Section 8.3 Survival of Representations, Warranties, Agreements, Etc.
--------------------------------------------------------
All representations and warranties contained in this Agreement or made
in writing by or on behalf of the Company in connection with the transactions
contemplated by this Agreement shall survive for the duration of any statutes of
limitation applicable thereto, the execution and delivery of this Agreement, any
investigation at any time made by the Company, the Purchaser or on such party's
behalf, the purchase of the Shares by the Purchaser under this Agreement and any
disposition of or payment on the Shares. All statements contained in any
certificate or other instrument delivered to the Purchaser by or on behalf of
the Company pursuant to this Agreement shall be deemed representations and
warranties of the Company under this Agreement. Except as otherwise provided
herein, all covenants and agreements contained herein shall survive for the
duration of any statutes of limitations applicable thereto or until, by their
respective terms, they are no longer operative.
17
ARTICLE IX
Miscellaneous
Section 9.1 Expenses and Taxes.
------------------
(1) At each Closing, the Company shall pay fifty percent (50%)
of all of the reasonable out-of-pocket expenses (including but not limited to
attorneys' and accountants' fees and expenses) of the Purchaser arising in
connection with the preparation, execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby; provided, however,
that the Company shall not be required to pay more than $50,000 of such expenses
in the aggregate.
(2) Subject to Section 9.1(1), each party to this Agreement
shall bear its own respective costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and the agreements and
consummation of the transactions contemplated hereby.
(3) All transfer, stamp (including documentary stamp Taxes, if
any), and other similar Taxes with respect to the purchase and sale of the
Shares, shall be borne by the Company.
Section 9.2 Further Assurances.
------------------
The Purchaser and the Company shall duly execute and deliver, or cause
to be duly executed and delivered, at their own cost and expense, such further
instruments and documents and to take all such action, in each case as may be
necessary or proper in the reasonable judgment of the other party to carry out
the provisions and purposes of this Agreement.
Section 9.3 Public Announcement.
-------------------
The Purchaser and the Company will consult with each other before
issuing any press release or otherwise making any public statements with respect
to the transactions contemplated by this Agreement, and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required based upon the reasonable opinion of counsel by
applicable law or by obligations pursuant to any listing agreement with any
national securities exchange or transaction reporting system or automated
quotation system.
Section 9.4 No Third Party Beneficiaries.
----------------------------
Except as expressly provided herein, this Agreement shall not confer
any rights or remedies upon any Person other than the parties hereto and their
respective successors and permitted assigns.
18
Section 9.5 Entire Agreement.
----------------
This Agreement constitutes the entire agreement among the parties
hereto and supersedes any prior understandings, agreements or representations by
or among such parties, written or oral, that may have related in any way to the
subject matter of this Agreement.
Section 9.6 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other party; provided,
however, that the Berkley may assign all or any of its rights and obligations
hereunder to one or more designated controlled Affiliates without such prior
written approval provided that Berkley remains responsible for the obligations
under this Agreement with respect to such assignee.
Section 9.7 Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
Section 9.8 Notices.
-------
All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, telecopied, sent by internationally-recognized overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Company, to:
Capital Trust, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
19
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to the Purchasers:
▇. ▇. ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (203)
769-4098 Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and other communications shall be deemed to have been
given and received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of delivery by telecopy, on the date of such
delivery, (iii) in the case of delivery by internationally-recognized overnight
courier, on the third Business Day following dispatch and (iv) in the case of
mailing, on the seventh Business Day following such mailing.
Section 9.9 Governing Law; Submission to Jurisdiction.
-----------------------------------------
This agreement shall be governed by and construed in
accordance with the internal laws of the state of New York, without regard to
the principles of conflicts of laws thereof. All actions and proceedings arising
out of or relating to this Agreement shall be heard and determined in a New York
State or federal court sitting in the City of New York, and the parties hereto
irrevocably submit to the exclusive jurisdiction of such courts in any such
action or proceeding and irrevocably waive the defense of an inconvenient forum
to the maintenance of any such action or proceeding (and the parties agree not
to commence any actions or proceedings relating hereto except in such courts).
The parties hereby irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in the courts of the State of New York
or the United States of America located in the State of New York, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
20
Section 9.10 Amendments and Waivers.
----------------------
No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by all of the parties. No waiver by any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
Section 9.11 Incorporation of Schedules.
--------------------------
The Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
Section 9.12 Construction.
------------
Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates. The use in this Agreement of the term "including"
means "including, without limitation." The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Section 9.13 Interpretation.
--------------
Unless otherwise indicated, references to "$" are references to the
U.S. dollar. Accounting terms used but not otherwise defined herein shall have
the meanings given to them under GAAP. As used in this Agreement (including all
Schedules and amendments hereto), the masculine, feminine and neuter gender and
the singular or plural number shall be deemed to include the others whenever the
context so requires. References to Articles and Sections refer to articles and
sections of this Agreement. Similarly, references to Schedules refer to
schedules attached to this Agreement. Unless the content requires otherwise,
words such as "hereby," "herein," "hereinafter," "hereof," "hereto," "hereunder"
and words of like import refer to this Agreement. The article and section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement.
Section 9.14 Severability.
------------
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the Laws and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this
21
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 9.15 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER DOCUMENT.
[Signature pages to follow]
22
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed this Agreement as of the date first above written by their respective
officers thereunto duly authorized.
CAPITAL TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
Solely for purposes of Section 2.4 of this Agreement the following:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
JRK Investment Partnership LP
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name:
Title:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CMH Investment Partnership LP
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
Veqtor Finance Company, L.L.C.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
Samstock, L.L.C.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
2
Annex 1
CERTAIN DEFINITIONS
"Affiliates" means, with respect to any Person, any Person directly
or indirectly controlling, controlled by or under common control with such
Person. The term "control" includes, without limitation, the possession,
directly or indirectly, of the power to direct the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Assets" means, with respect to any Person, all of the assets,
rights, interests and other properties, real, personal and mixed, tangible and
intangible, owned by such Person.
"Business Day" means any day that is not a Saturday, Sunday, legal
holiday or other day on which banks are required to be closed in New York, New
York.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Fundamental Documents" means, with respect to a corporation, the
charter and bylaws (each as amended) or, with respect to any other Person, the
documents by which such Person (other than an individual) establishes its legal
existence or which govern its internal affairs.
"GAAP" means, at any time, generally accepted accounting principles
in the jurisdiction in which the Person to which such principles are applied is
organized at such time.
"Governmental Entity" means any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, federal, state or local.
"Law" means any constitution, law, statute, treaty, rule, directive,
requirement or regulation or Order, domestic or foreign, of any Governmental
Entity, including, without limitation, the rules and regulations of any stock
exchange and/or quotation system on which the subject Person's securities are
listed for trading or quoted, as the case may be.
"Liability" means any liability or obligation, whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated and whether due or to become due, regardless of when
asserted.
"Lien" means any security interest, pledge, bailment (in the nature
of a pledge or for purposes of security), mortgage, deed of trust, the grant of
a power to confess judgment, conditional sale, trust receipt or other title
retention agreement (including any lease in the nature thereof), charge,
encumbrance, easement, reservation, restriction, cloud, right of first refusal
or first offer, option, equity or adverse claim or other similar arrangement or
interest in real or personal property.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the business, operations, Assets, condition
(financial or otherwise), operating results, or prospects of such Person and its
Subsidiaries, if any, taken as a whole; provided, however, with respect to the
Company, that any decrease in the trading price or volume of the Company's
Common Stock that occurs in the absence of a material adverse effect on any of
the foregoing shall not, in itself, be deemed to be a "Material Adverse Effect."
"Order" means any order, writ, judgment, injunction, decree,
determination or award issued by a Governmental Entity.
"Permits" means all permits, licenses, authorizations, registrations,
franchises, approvals, consents, certificates, variances and similar rights
obtained, or required to be obtained, from Governmental Entities.
"Person" means any individual, corporation, partnership, limited
liability company, trust, estate, or unincorporated organization, or other
entity or Governmental Entity or other juridical entity.
"Proceeding" means any action, suit, proceeding, complaint, charge,
hearing, inquiry or investigation before or by a Governmental Entity or an
arbitrator, mediator or tribunal.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Subsidiary" means (i) any entity in which the Company owns directly
or indirectly, more than 50% of the voting capital stock or equity interest and
(ii) any commercial real estate mezzanine investment fund managed by the Company
or any subsidiary (whether or not the Company or any subsidiary owns a majority
interest).
"Tax" or "Taxes" as used in this Agreement, means, with respect to
any Person, (a) all taxes, customs duties and other Taxes, fees, assessments or
charges of any kind whatsoever including without limitation all income, gross
receipts, sales, use, ad valorem, transfer, franchise, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property or
windfall profits Taxes, alternative or add-on minimum Taxes, together with all
interest and penalties, additions to Tax and other additional amounts imposed by
any taxing authority (domestic or foreign) on such Person (if any) and (b) any
Liability for the payment of any amount of the type described in clause (a)
above as a result of being a "transferee" (within the meaning of Section 6901 of
the Internal Revenue Code of 1986, as amended, or any other applicable Law) of
another entity or a member of an affiliated or combined group, and (c) any
liability under any tax sharing or other contractual arrangement.
SCHEDULE A
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▇▇▇▇ ▇. ▇▇▇▇▇
JRK Investment Partnership LP
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CMH Investment Partnership LP
Veqtor Finance Company L.L.C.
Samstock, L.L.C.
SCHEDULE B
----------
Admiral Insurance Company
Berkley Insurance Company
Berkley Regional Insurance Company
Nautilus Insurance Company
SCHEDULE 5.6
------------
1. Authorized Capital Stock Issued Capital Stock
---------------------- --------------------
Class A Common Stock 100,000,000 8,271,882
Preferred Stock 100,000,000 0
----------- ---------
200,000,000 8,271,882
2. Outstanding options issued under the Company's
incentive stock plan and director stock plan 552,780
Outstanding stock units issued under the Company's
incentive stock plan and director stock plan 73,956
Shares which may be obtained upon conversion of
convertible trust preferred securities issued by the
Company's subsidiary, CT Convertible Trust I 4,273,422
Shares to be issued to ▇▇▇▇ ▇. ▇▇▇▇▇ pursuant to
the terms of his employment agreement, dated
as of February 24, 2004 218,818
Shares which may be issued upon exercise of the
Warrant 365,000
3. The Company's employment agreement, dated as of February 24, 2004, with ▇▇▇▇
▇. ▇▇▇▇▇ provides for various awards of restricted shares of Common Stock
pursuant to the Company's 2004 long-term incentive plan over the term of the
agreement.
SCHEDULE 5.11
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The issuance of the Tranche 2 Shares contemplated by this Agreement requires the
affirmative vote of a majority of the votes cast at the Company's 2004 annual
meeting of stockholders to be held on June 17, 2004 in accordance with the
applicable New York Stock Exchange rules.
The transactions contemplated by this Agreement require the listing of the
Shares pursuant to a subsequent listing application to be filed with and
approved by the New York Stock Exchange.
The transactions contemplated by this Agreement require the filing of the
Prospectus in the form delivered to the Purchaser with the Commission pursuant
to Rule 424(b) under the Securities Act.
SCHEDULE 5.19
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Loans 3/31/04 Carrying Value
----- ----------------------
TriNational Baja Loan $3,037,733
Investments
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ASC 96-D2-B1B CMBS CUSIP# 045424B43 $4,000,000
RMF 97-1-F CMBS CUSIP# ▇▇▇▇▇▇▇▇▇ $3,127,785
Management currently believes that for both the loans and the
investments listed on this Schedule 5.19, the Company will realize at least the
carrying value of the assets as of March 31, 2004 as listed in this schedule.