Exhibit 10.9
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FUND II INVESTMENT MANAGEMENT AGREEMENT
Dated as of March 8, 2000
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911727.10
TABLE OF CONTENTS
Page
ARTICLE I
RETENTION; SERVICES AND POWERS
OF INVESTMENT MANAGER....................................................................................2
1.1 Retention of Investment Manager........................................................2
1.2 Services to be Performed by Investment Manager.........................................2
1.3 Actions Requiring the Approval of the Management Committee. ..........................3
1.4 Key Personnel. .......................................................................5
1.5 Miscellaneous. .......................................................................5
ARTICLE II
COMPENSATION OF THE INVESTMENT MANAGER; FEES AND EXPENSES................................................5
2.1 Investment Manager Compensation........................................................5
2.2 Investment Manager Expenses. .........................................................6
2.3 Fund Expenses. .......................................................................6
ARTICLE III
EXCULPATION AND INDEMNIFICATION..........................................................................7
3.1 Exculpation and Indemnification........................................................7
ARTICLE IV
MISCELLANEOUS............................................................................................9
4.1 Duration and Termination...............................................................9
4.2 Status of Investment Manager as Independent Contractor.................................9
4.3 Notices................................................................................9
4.4 Governing Law.........................................................................10
4.5 Severability..........................................................................10
4.6 Entire Agreement......................................................................11
4.7 Binding on Successors.................................................................11
4.8 Headings..............................................................................11
4.9 Waiver................................................................................11
4.10 Amendment.............................................................................11
911727.10
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FUND II INVESTMENT MANAGEMENT AGREEMENT
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This INVESTMENT MANAGEMENT AGREEMENT (the "Agreement") is entered into as
of March 8, 2000, by and between CT Investment Management Co., LLC, a Delaware
limited liability company (the "Investment Manager"), CT ▇▇ ▇▇, LLC, a Delaware
limited liability company (the "General Partner") and CT Mezzanine Partners II,
L.P., a Delaware limited partnership (the "Fund"). All definitions not expressly
provided herein shall be those set forth in the form of Limited Partnership
Agreement of the Fund (the "Fund Partnership Agreement") and as may be amended
from time to time and the Venture Agreement (as defined below).
PRELIMINARY STATEMENT
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A. The General Partner is the general partner of the Fund. Pursuant to
the Fund Partnership Agreement, the Fund will pay the General Partner a fund
management fee (the "Fund Management Fee") in consideration of certain fund
management services to be provided by the General Partner to the Fund.
B. The General Partner desires to retain the Investment Manager to
provide certain investment management services in connection with the day-to-day
management of the Fund subject to the supervision and direction of the General
Partner's management committee (the "Management Committee") as provided in the
Fund Partnership Agreement.
C. Capital Trust, Inc., a Maryland corporation ("CT") CT-F1, LLC, a
Delaware limited liability company ("CI-F1"), CT-F2-GP, LLC, a Delaware limited
liability company ("CT-F2-GP"), CT-F2-LP, LLC, a Delaware limited liability
company ("CT-F2-LP") and the Investment Manager (collectively, the "CT Parties")
and Travelers Limited Real Estate Mezzanine Investments I, LLC, a Delaware
limited liability company ("Limited REMI I"), Travelers General Real Estate
Mezzanine Investments II, LLC, a Delaware limited liability company ("General
▇▇▇▇ ▇▇"), Travelers Limited Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company ("Limited ▇▇▇▇ ▇▇") (collectively, the "CIG
Parties") are parties to a Venture Agreement, dated as of the date hereof (the
"Venture Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Investment Manager, the General Partner and the Fund agree
as follows:
ARTICLE I
RETENTION; SERVICES AND POWERS
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OF INVESTMENT MANAGER
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1.1 Retention of Investment Manager. The General Partner and the Fund
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hereby appoint the Investment Manager (subject to the following provisions of
this Agreement)
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exclusively to act as the investment manager of the Fund and to provide the
services to the Fund described in Section 1.2 of this Agreement.
1.2 Services to be Performed by Investment Manager. The Investment Manager
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shall be responsible for the day-to-day management of the Fund, subject to the
supervision and direction of and any Approval required by the Management
Committee. Services to be rendered by the Investment Manager to the Fund shall
include the following:
(a) The Investment Manager shall manage the Investments in accordance
with and subject to the restrictions and limitations contained in Section 1.3
hereof;
(b) The Investment Manager shall (i) identify, evaluate and negotiate
Investment opportunities, (ii) make investment recommendations relating to the
making and realizing of Investments, (iii) monitor Investments on a day-to-day
basis, including arranging for the accounting, budgeting, safekeeping and
administration of Investments, (iv) arrange debt financing for the Fund and
Investments, and (v) advise the Fund with a view to optimizing the returns from
Investments.
(c) The Investment Manager shall develop and administer the Fund's
financial and accounting reporting functions, treasury and cash or management
functions and internal control and audit functions.
(d) The Investment Manager may make individual investments in assets
(as such assets are or will be reflected on the Fund's balance sheet) of up to
$25,000,000 and sell such individual investments without the approval of the
General Partner or the Management Committee.
(e) The Investment Manager shall identify, recommend and oversee
necessary third-party independent contractors to provide additional services to
the Fund.
(f) The Investment Manager shall work together with the Management
Committee to submit to the Members the following reports:
(i) An unaudited monthly activity report on operations which
will include an income statement, a balance sheet and a
commentary report on both a monthly basis and a year-to-date
basis and a list of all Fund assets and the status thereof.
The report will be delivered to the Members within 10
business days after the last day of each month.
(ii) An unaudited quarterly report on operations which will
include an income statement, a balance sheet, a statement of
cash flows, and statement of the Fund's equity. The report
will present the income statement and statement of cash
flows on both a quarterly basis and
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a year-to-date basis. The report also will compare actual
operations to those projected in the Annual Operating Budget.
The report will be delivered to Members within 30 business
days after the last day of each month.
(iii)Annual audited financial statements certified to be in
accordance with GAAP within 60 days of the fiscal year end.
(iv) Any other reports the General Partner or the Investment
Manager are required to provide to the General Partner, the
Fund or its Limited Partners pursuant to the Fund
Partnership Agreement.
(g) The Investment Manager shall obtain, at the expense of the Fund,
director and officer/manager liability insurance, and other liability insurance
and business insurance customary for businesses like that of the Fund. The
liability insurance coverages shall provide for full tail coverage (on an
occurrence basis during the term of the Fund) for a minimum of three years
following the date of the dissolution of the Fund.
1.3 Actions Requiring the Approval of the Management Committee.
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Notwithstanding the provisions of Section 1.2 above, the Investment Manager
shall not take the following actions on behalf of the Investment Manager or the
Fund without the unanimous approval of the Management Committee:
(i) approving or amending the Business Plan;
(ii) the making of a loan or the purchase or sale of an asset (as
such asset is or will be reflected on the Fund's balance
sheet) amount in excess of $25,000,000;
(iii)any material modification or amendment of the provisions of
an asset (as such asset is or will be reflected on the
Fund's balance sheet) exceeding $25,000,000;
(iv) initiating any litigation, arbitration or other proceeding
on behalf of the Fund where the Fund's claims exceed
$5,000,000 or the settlement of any litigation, arbitration
or other proceeding that would require any expenditure by
the Fund of more than $5,000,000;
(v) entering into any contract or lease that (a) is not
consistent with the Annual Operating Budget then in effect
and (b) has a term exceeding one (1) year, other than those
contracts or leases that may be freely
911727.10
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terminated by the Fund, without penalty, upon thirty (30)
days' notice.
(vi) selling substantially all the assets of the Fund other than
in the ordinary course of business;
(vii)the sale of more than $100,000,000 in the aggregate of the
principal amount of the Fund's Investments in any given
12-month period;
(viii) establishing any credit facility greater than $100 million
or any transaction loan inconsistent with the guidelines
in the Annual Operating Budget;
(ix) making in-kind distributions of property to the Fund's
Members;
(x) entering into contracts with affiliates of a Member,
including any amendment, modification or waiver of this
Agreement;
(xi) causing the Fund to enter into a new line of business;
(xii)causing the Fund to file a voluntary case under the United
States Bankruptcy Code or to initiate any other proceeding
under federal or state law for the relief of debtors;
(xiii) selecting or discharging the General Partner's or the
Fund's accountants;
(xiv)selecting or discharging the General Partner's or the
Fund's legal counsel; and
(xv) undertaking general or administrative expenditures that
exceed by 10% the amount provided for any such expenses in
the Annual Operating Budget.
1.4 Key Personnel. The Investment Manager shall cause each of ▇▇▇▇ ▇. ▇▇▇▇▇
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and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Key Individuals") to commit to devote a substantial
portion of their professional time and energy to the performance of the
Investment Manager's duties under this Agreement; it being understood and agreed
that so long as ▇▇. ▇▇▇▇▇ is an employee of CT and continues to provide services
to the Investment Manager in accordance with this Section 1.4, ▇▇. ▇▇▇▇▇▇▇ may
devote up to 50% of his professional time to activities not related to the Fund.
The Investment Manager shall cause at least one additional Senior Manager of the
Investment Manager to devote a substantial portion of his or her professional
time and energy to the performance of the Investment Manager's duties under this
Agreement; provided, however, that the identity of
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such Senior Manager is reasonably acceptable to the Fund. The Fund and General
▇▇▇▇ ▇▇ agree that either of ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ would be acceptable
as the Senior Manager. In the sole event of (i) ▇▇. ▇▇▇▇▇'▇ death or Disability
(but not the termination of his employment for any other reason) during the term
of this Agreement, and (ii) ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ each devote a substantial
portion of his professional time and energy to the performance of the Investment
Manager's duties under this Agreement, then the death or Disability of ▇▇. ▇▇▇▇▇
shall not be deemed a breach by the Investment Manager of this Section 1.4. If
▇▇. ▇▇▇▇▇▇▇ either dies, becomes Disabled or his employment with the Investment
Manager is terminated during the term of this Agreement and ▇▇. ▇▇▇▇▇ and either
▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ or another Senior Manager (which is reasonably
acceptable to General ▇▇▇▇ ▇▇) each devote a substantial portion of his
professional time and energy to the performance of the Investment Manager's
duties under this Agreement, then the death or Disability of ▇▇. ▇▇▇▇▇▇▇ or the
termination of ▇▇. ▇▇▇▇▇▇▇'▇ employment shall not be deemed a breach of this
Section 1.4.
1.5 Miscellaneous. To the extent that the performance of the duties set
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forth in this Agreement places any affirmative regulatory obligations upon the
Investment Manager, the Investment Manager shall not be deemed to have accepted
such duties unless and until it complies with any and all applicable laws and
regulations. The Investment Manager, in its performance of its duties hereunder,
shall act in conformity with the instructions and directions of the General
Partner and/or the Fund shall the Management Committee and comply with and
conform to the requirements of all applicable federal and state laws,
regulations and rulings.
ARTICLE II
COMPENSATION OF THE INVESTMENT MANAGER; FEES AND EXPENSES
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2.1 Investment Manager Compensation. As compensation for its services in
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acting as Investment Manager of the Fund, the General Partner shall pay to the
Investment Manager a management fee which shall be equal to the Investment
Management Fee in accordance with Section 2.11 of the Venture Agreement. The
Investment Management Fee shall accrue and be payable quarterly in advance in
the manner and at the times set forth in Section 2.11 of the Venture Agreement
(which is incorporated herein by reference). Within 90 days of the end of each
calendar year, the General Partner and the Investment Manager shall jointly
calculate and determine the aggregate Investment Management Fee that accrued to
the Investment Manager for such year. As provided in the Venture Agreement, to
the extent the amount of Investment Management Fee payments actually received by
the Investment Manager during such year exceeded the calculated amount, such
excess shall be applied to the Investment Management Fee payments to be made to
the Investment Manager in the next quarter(s) until recouped; provided, however,
that if upon termination of this Agreement any portion of such excess amount
remains unpaid, the Investment Manager shall pay the General Partner such
remaining excess amount in full as promptly as practicable after such
termination. As provided in the Venture Agreement, to the extent the calculated
amount exceeds the amount of Investment Management Fee payments
911727.10
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actually received by the Investment Manager, the General Partner shall pay the
Investment Manager the difference between such amounts. The General Partner
shall fund the payment of the Investment Management Fee from funds obtained on
account of the Fund Management Fee (as well as from its "carried interest" or
"promote" as contemplated by the Venture Agreement) received from the Fund as
promptly as practicable after the calculation of such excess amount.
2.2 Investment Manager Expenses. The Investment Manager shall bear the
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following ordinary day-to-day expenses incidental to the administration of the
Fund (i) all costs and expenses of providing to the Fund, and the Investment
Manager, the office space, facilities, utility service, supplies and necessary
administrative and clerical functions connected with the Fund's, and the
Investment Manager's, operations; and (ii) compensation of all employees who are
engaged in the operation or management of the Fund's or the Investment Manager's
business (collectively, "Administrative Expenses").
2.3 Fund Expenses. Except as provided in Section 2.2 above, the Fund shall
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bear and be charged with all other costs and expenses of the Fund's activities
and operations, including all activities and operations prior to the date of
this Agreement and including, without limitation, to the extent directly related
to the Fund and its Investments: (i) all costs and expenses, incurred in
developing, negotiating, structuring, acquiring or financing any proposed
Investment, whether or not the Fund actually invests therein including, without
limitation, any travel, legal and accounting expenses and other fees and
out-of-pocket costs related thereto, and the costs of rendering financial
assistance to or arranging for financing for any assets or businesses
constituting any such proposed Investment; (ii) all costs and expenses, if any,
incurred in monitoring Investments, including without limitation any travel,
legal and accounting expenses and other fees and out-of-pocket costs related
thereto; (iii) all costs and expenses, if any, incurred in disposing of or
otherwise dealing with Investments, including, without limitation, any travel,
legal and accounting expenses and other fees and out-of-pocket costs related
thereto, and the costs of rendering financial assistance to or arranging for
financing for any assets or businesses constituting Investments; (iv) taxes of
the Fund, fees of auditors, counsel and other advisors of the Fund, insurance
costs of the Fund and costs related to litigation and threatened litigation
involving the Fund; (v) expenses associated with third party accountants,
attorneys and tax advisors with respect to the Fund and its activities,
including the preparation and auditing of financial reports and statements and
other similar matters, and costs associated with the distribution of financial
and other reports and capital call notices to the Members and costs associated
with Fund meetings; (vi) brokerage commissions and other investment costs
incurred by or on behalf of the Fund and paid to third parties unaffiliated with
the Investment Manager, and to the extent approved by the Management Committee
pursuant to the Fund Partnership Agreement, brokerage commissions and other
investment costs incurred by and on behalf of the Fund and paid to affiliates of
the Investment Manager; (vii) all costs and expenses associated with the
obtaining and maintaining insurance as provided in Section 1.2(g), including,
without limitation, customary liability insurance to insure the Investment
Manager and other parties whom the Fund has agreed to indemnify against
liability under the Fund Partnership Agreement; (viii) fees incurred in
connection with the maintenance of bank or custodian accounts; (ix) all expenses
incurred in connection with the registration of the Fund's securities under
911727.10
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applicable securities laws or regulations; and (x) all expenses of the Fund that
are not recurring normal operating expenses, (all such expenses, collectively,
the "Operating Expenses"). To the extent any Operating Expenses are paid by the
Investment Manager, such Operating Expenses shall be reimbursed by the Fund.
ARTICLE III
EXCULPATION AND INDEMNIFICATION
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3.1 Exculpation and Indemnification. (a) Neither the Investment Manager nor
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any of its partners, affiliates, directors, officers, employees, shareholders,
members and other agents (each, an "Indemnified Party"), shall be liable to the
General Partner, the Fund or to the Members for monetary damages for any losses,
claims, damages or liabilities ("Damages") arising from any act performed or
omitted by such parties arising out of or in connection with the performance by
Investment Manager of its services under this Agreement or the Fund's business
or affairs, including, without limitation, all activities of the type or
character disclosed in the Fund's confidential offering memorandum, as it may
have been supplemented or amended, under the captions "Risk Factors," "Conflicts
of Interest" or elsewhere therein (such disclosure being incorporated herein by
reference), except to the extent that any such Damages are primarily
attributable to the gross negligence or willful misconduct of such Indemnified
Party.
(b) (1) The Fund shall, to the fullest extent permitted by applicable law,
indemnify, defend and hold harmless the Indemnified Parties against any
Damages to which the Indemnified Party may become subject in connection
with any matter arising out of or in connection with the performance by
Investment Manager of its services under this Agreement or the Fund's
business or affairs, except, with respect to any Indemnified Party to the
extent that any such Damages are primarily attributable to the gross
negligence or willful misconduct of such Indemnified Party. If the
Indemnified Party becomes involved in any capacity in any action,
proceeding or investigation in connection with any matter arising out of or
in connection with the performance by Investment Manager of its services
under this Agreement or the Fund's business or affairs, the Fund shall
reimburse the Indemnified Party for its reasonable legal and other expenses
(including the cost of any investigation and preparation) as they are
incurred in connection therewith, provided that the Indemnified Party shall
promptly repay to the Fund the amount of any such reimbursed expenses paid
to it if it shall ultimately be finally determined that the Indemnified
Party was not entitled to be indemnified by the Fund in connection with
such action, proceeding or investigation. If for any reason (other than by
reason of the exclusions from indemnification hereinabove set forth) the
foregoing indemnification is unavailable to the Indemnified Party, or
insufficient to hold it harmless, then the Fund shall contribute to the
amount paid or payable by the Indemnified Party as a result of such loss,
claim, damage, liability or expense in such proportion as is appropriate to
reflect the relative benefits received by the Fund on the one hand and the
Indemnified Party on the other hand or, if
911727.10
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such allocation is not permitted by applicable law, to reflect not only the
relative benefits referred to above but also any other relevant equitable
considerations.
(2) The provisions of this Section 3.1(b) shall survive for a period
of three years from the date of dissolution of the Fund; provided that if
at the end of such period there are any actions, proceedings or
investigations then pending, the Indemnified Party shall notify the General
Partner and the General Partner shall so notify the Fund and the Partners
of the Fund at such time (which notice shall include a brief description of
each such action, proceeding or investigation and the liabilities asserted
therein) and the provisions of this Section 3.1(b) shall survive with
respect to each such action, proceeding or investigation set forth in such
notice (or any related action, proceeding or investigation based upon the
same or similar claim) until the date that such action, proceeding or
investigation is finally resolved; and provided, further, that the
obligations of the Fund under this Section 3.1(b) shall be satisfied solely
out of Fund assets, subject to the right of the liquidator of the Fund to
establish reserves, pursuant to the Fund Partnership Agreement for
contingent obligations under this Section 3.1(b).
(c) No member of the General Partner or Partner of the Fund shall have
any obligation to the Fund or any other Partner of the Fund to bring or join in
any action in defense of an Indemnified Party pursuant to Section 3.1 (a) or
(b). Nothing contained in this Section 3.1 shall be construed as any waiver of
insurance claims or recoveries by the Fund or an Indemnified Party.
(d) The remedies of an Indemnified Party under this Article III shall
be non- exclusive and, without duplication, each such Indemnified Party may
pursue any other remedy provided in law or equity.
(e) The provisions of this Article III shall inure to the benefit of
the Indemnified Parties, and any successors, assigns, heirs and personal
representatives of such Indemnified Parties.
ARTICLE IV
MISCELLANEOUS
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4.1 Duration and Termination. If any of the following events shall occur
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(each a "Investment Manager Removal Event"): (i) a Bankruptcy or an event
specified in Section 17- 402(a)(8) of the Act occurs with respect to the
Investment Manager; (ii) the Investment Manager is grossly negligent or commits
willful misconduct in the performance of its material duties to the Fund,
resulting in material damages to the Fund; (iii) the Investment Manager commits
an act of fraud involving the Fund (which results in material damages to the
Fund), or intentionally misappropriates significant funds of the Fund; (iv) the
termination or liquidation of the Fund;(v)
911727.10
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the Investment Manager materially breaches this Agreement and such breach is not
remedied in all material respects within 30 days after the Investment Manager's
receipt of written notice from General ▇▇▇▇ ▇▇; (vi) upon the occurrence of an
Event of Default as a result of a Default by CT- F2-GP (as such terms are
defined in Section 11.1 of the Limited Liability Company Agreement of CT ▇▇ ▇▇
LLC (the "GP Agreement")) and the election by General ▇▇▇▇ ▇▇ to pursue a remedy
pursuant to Section 11.2 of the GP Agreement; and (vii) upon the occurrence of
an event of default as a result of a default by CT-F2-LP under the Fund
Partnership Agreement where such default is not remedied in all material
respects within the cure period provided in the Fund Partnership Agreement and
the election by General ▇▇▇▇ ▇▇, on behalf of CT ▇▇ ▇▇ LLC, to pursue a remedy
as provided by the Fund Partnership Agreement; then General ▇▇▇▇ ▇▇ may deliver
a written notice to the Investment Manager and the General Partner (the
"Investment Manager Removal Notice") stating that the Investment Manager shall
be removed as Investment Manager under this Agreement and setting forth a
description of the relevant Investment Manager Removal Event(s). The Investment
Manager shall be deemed to be removed on the date of the Investment Manager
Removal Notice or, if such removal is pursuant to clause (iv), upon the end of
the liquidation of the Fund.
Any dispute which arises under this Agreement shall be resolved pursuant to
Section 4.2 of the Venture Agreement.
4.2 Status of Investment Manager as Independent Contractor. The Investment
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Manager shall for all purposes herein be deemed to be an independent contractor
and shall, unless otherwise expressly provided herein or authorized by the Fund
from time to time, have no authority to act for or represent the Fund in any way
or otherwise be deemed an agent of the Fund.
4.3 Notices. Any notices required hereunder shall be in writing and shall
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be deemed given when delivered in person or by courier or when sent by
first-class registered or certified mail or by national prepaid overnight
delivery service to the parties at such addresses as either party may from time
to time specify by notice.
If to the Fund at:
Travelers Limited Real Estate
Mezzanine Investments I, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Real Estate Investment Number: 12833
911727.10
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with a copy to:
Loeb & Loeb LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Investment Manager at:
CT Investment Management, LLC
c/o Capital Trust, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
4.4 Governing Law. This Agreement shall be governed, construed,
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administered and regulated in all respects under the laws of the State of New
York to the extent such laws are not preempted or superseded by the laws of the
United States.
4.5 Severability. If any one or more of the covenants, agreements,
------------
provisions or terms of this Agreement shall be held to be contrary to any
express provision of law or contrary to policy of express law, though not
expressly prohibited, or to be against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
4.6 Entire Agreement. This Agreement constitutes the entire agreement among
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the parties hereto with respect to the subject matter hereof, and supersedes any
prior agreement or understanding among the parties hereto with respect to the
subject matter hereof.
4.7 Binding on Successors. This Agreement shall be binding upon the Fund,
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the General Partner, the Investment Manager and their respective successors and
assigns. However, no assignment of this Agreement shall be made without the
prior written consent of the Fund.
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4.8 Headings. The headings used in this Agreement are inserted for
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reference purposes only and shall not be deemed to limit or affect in any way
the meaning or interpretation of any of the terms or provisions herein.
4.9 Waiver. Any failure of any party to comply with any obligation or
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agreement herein may be waived in writing by the other party but such waiver or
failure to insist upon strict compliance with such obligation or agreement shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
4.10 Amendment. This Agreement may be amended, modified, or supplemented
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only by written agreement of the parties hereto.
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IN WITNESS WHEREOF, this Agreement is hereby executed as of the date first
hereinabove written.
CT INVESTMENT MANAGEMENT CO., CT ▇▇ ▇▇ LLC
LLC
By: Capital Trust, Inc., as sole Member By: Travelers General Real Estate
Mezzanine Investments II, LLC,
a Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer Vice President
By: CT-F2-GP, LLC, a Member
By: Capital Trust, Inc., as sole
Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
CT MEZZANINE PARTNERS II, L.P.
By: CT ▇▇ ▇▇ LLC, as General Partner
By: Travelers General Real Estate
Mezzanine Investments II,
LLC, a Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
By: CT-F2-GP, LLC, a Member
By: Capital Trust, Inc., as sole
Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Chief Executive Officer
911727.10