Exhibit 10.10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
as of March 8, 2000 among Capital Trust, Inc., a Maryland corporation (the
"Company"), Travelers Limited Real Estate Mezzanine Investments I, LLC, a
Delaware limited liability company ("Limited REMI I"), Travelers Limited Real
Estate Mezzanine Investments II, LLC, a Delaware limited liability company
("Limited ▇▇▇▇ ▇▇") and Travelers General Real Estate Mezzanine Investments II,
LLC, a Delaware limited liability company ("General ▇▇▇▇ ▇▇") (collectively the
"CIG Parties") or any Affiliate of General ▇▇▇▇ ▇▇ or Limited ▇▇▇▇ ▇▇ who may
hereafter execute and agree to be bound by this Agreement and named as a Holder
on Schedule A attached hereto (which schedule shall be amended from time to time
to reflect such agreement of such Person). Capitalized terms not expressly
defined herein shall have the meaning ascribed to such terms in the Venture
Agreement (as defined below).
Recitals
WHEREAS, the Company and its affiliates, CT-F1, LLC, a
Delaware limited liability company ("CT-F1"), CT-F2-GP, LLC, a Delaware limited
liability company ("CT-F2- GP"), CT-F2-LP, LLC ("CT-F2-LP"), a Delaware limited
liability company, and CT Investment Management Co., LLC, a Delaware limited
liability company ("CTIMCO" and together with CT-F1, CT-F2-GP and CT-F2-LP, the
"CT Parties"), and the CIG Parties are parties that certain venture agreement
(the "Venture Agreement"), dated as of the date hereof, pursuant to which, among
other things, the parties thereto will co-sponsor, commit to invest capital in
and manage real estate mezzanine investment opportunity funds, subject to
certain conditions as provided in the Venture Agreement;
WHEREAS, in connection with the formation of Fund I, the
Company has on the date hereof issued to CT-F1 a warrant to purchase 4,250,000
shares of class A common stock, par value $.01 per share, of the Company
("Common Stock") at $5.00 per share, pursuant to the terms and conditions of a
Fund I Class A Common Stock Warrant Agreement entered into by the Company on the
date hereof (including any warrants hereafter issued in exchange therefor, in
substitution therefor or upon transfer thereof, the "Fund I Warrant"), whereupon
CT-F1 has on the date hereof contributed the Fund I Warrant to Fund I as part of
its capital contribution to Fund I pursuant to the Fund I Agreement, whereupon
Limited REMI I has on the date hereof purchased the Fund I Warrant from Fund I
pursuant to the Fund I Warrant Purchase Agreement and in consideration thereof
has delivered to Fund I the Fund I Promissory Note;
WHEREAS, in connection with the formation of Fund II and
Subsequent Funds and in consideration of the CIG Parties Commitment and Limited
REMI II's procuring Private Banking Client Commitments, CT has on the date
hereof agreed to issue, concurrently with the Fund II Initial Closing, to
CT-F2-GP, and, as applicable, concurrently with any Subsequent
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Closing, to CT-F2-GP or to any CT Fund Control Person Member of each Subsequent
Fund's Fund Control Person, as the case may be (and in each case subject to the
procedures and limitations set forth in Section 2.2 of the Venture Agreement),
certain warrants containing the right to purchase an aggregate number of shares
of Common Stock at $5.00 per share determined in accordance with the formula set
forth in Section 2.2 of the Venture Agreement, each to be issued pursuant to a
form of warrant agreement substantially in the form of the Fund I Warrant (any
such warrant constituting either a Fund II Purchase Warrant, a Fund II Service
Warrant, a Subsequent Funds Purchase Warrant or a Subsequent Funds Service
Warrant, as the case may be, in accordance with Section 2.2 of the Venture
Agreements) (hereinafter such warrants and the Fund I Warrant are collectively
referred to as the "Venture Warrants";
WHEREAS, CT-F2-GP has agreed to contribute the Fund II
Purchase Warrant and the Fund II Service Warrant or the Subsequent Fund Purchase
Warrant and the Subsequent Fund Service Warrant, as the case may be, when, as
and if issued and contributed to it in accordance with the foregoing, containing
the right to purchase a number of shares of Common Stock equal to the applicable
number of shares of Common Stock as set forth in Section 2.2 of the Venture
Agreement, to the Fund II General Partner as part of its capital contribution to
the Fund II General Partner pursuant to the Fund II General Partner Agreement,
and the CT Parties will cause each CT Fund Control Person Member of a Subsequent
Fund's Fund Control Person to contribute the Subsequent Fund Purchase Warrant
and the Subsequent Fund Service Warrant when, as and if issued and contributed
to it in accordance with the foregoing, containing the right to purchase a
number of shares of Common Stock equal to the applicable number of shares of
Common Stock as set forth in Section 2.2 of the Venture Agreement, to such Fund
Control Person as part of its capital contribution to such Fund Control Person
pursuant to the applicable agreement governing such Fund Control Person;
WHEREAS, the Fund II General Partner and each Subsequent
Fund's Fund Control Person, as the case may be, will sell pursuant to the Fund
II Warrant Purchase Agreement or the Subsequent Funds Warrant Purchase
Agreement, as the case may be, to General ▇▇▇▇ ▇▇ or its Affiliates any Fund II
Purchase Warrant or Subsequent Funds Purchase Warrant, as the case may be,
contributed to it in accordance with the foregoing, containing the right to
purchase a number of shares of Common Stock equal to the Initial Closing
Purchase Warrant Number and the Subsequent Closing Purchase Warrant Number, as
the case may be, as set forth in Section 2.2 of the Venture Agreement;
WHEREAS, in connection with services to be rendered by Limited
▇▇▇▇ ▇▇ or its Affiliates for the Fund II General Partner and each Subsequent
Fund's Fund Control Person, as the case may be, in connection with raising
Private Banking Client Commitments to Fund II or any Subsequent Fund, as the
case may be, the Fund II General Partner and each Fund Control Person, as the
case may be, will transfer to Limited ▇▇▇▇ ▇▇ or its Affiliates any Fund II
Service Warrant or Subsequent Funds Service Warrant contributed to it in
accordance with the foregoing, containing the right to purchase a number of
shares of Common Stock
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equal to the Initial Closing Service Warrant Number and the Subsequent Closing
Service Warrant Number, as the case may be, as set forth in Section 2.2 of the
Venture Agreement;
WHEREAS, the Venture Warrants cannot be exercised before March
8, 2001 ("Exercise Commencement Date");
WHEREAS, the Company has agreed to issue shares of Common
Stock to the Holders (as defined below) upon exercise of the Venture Warrants
and to grant to the Holders the registration rights set forth in Section 2
hereof.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Advice" has the meaning set forth in Section 3(b) hereof.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York, New York are permitted or
required by any applicable law to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Preamble and also
includes the Company's successors.
"Delay Period" has the meaning set forth in Section 2(c)
hereof.
"Effectiveness Period" has the meaning set forth in Section
2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Exercise Commencement Date" has the meaning set forth in the
Recitals.
"Holder" or "Holders" means Limited REMI I, General ▇▇▇▇ ▇▇,
Limited ▇▇▇▇ ▇▇, any Affiliate of the foregoing Persons who agrees to be bound
by this Agreement and
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named as a Holder on Schedule A hereto in accordance with the introductory
paragraph of this Agreement, or any Person who has acquired Registrable
Securities by Transfer, operation of law or otherwise, if such Person is an
owner of record of Registrable Securities, or of a security convertible into or
exercisable or exchangeable for Registrable Securities, whether or not such
conversion, exercise or exchange has actually been effected and disregarding any
legal restrictions upon the exercise of such rights. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities.
"Inspectors" has the meaning set forth in Section 3(a)(xii)
hereof.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means an individual, partnership, corporation,
limited liability company, trust, estate, or unincorporated organization, or
other entity, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"Registrable Securities" means (i) the shares of Common Stock
issuable upon exercise of the Venture Warrants; (ii) any shares of Common Stock
or other securities issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange by the Company generally for, or in
replacement by the Company generally of, such shares of Common Stock; and (iii)
any securities issued in exchange for such shares of Common Stock in any merger,
combination or reorganization of the Company; provided, however, that
Registrable Securities shall not include any securities which have theretofore
been registered and sold pursuant to the Securities Act or which have been sold
to the public pursuant to Rule 144 or any similar rules promulgated by the
Commission pursuant to the Securities Act, and, provided further, that the
Company shall have no obligation under Section 2 to register any Registrable
Securities of a Holder or keep any Shelf Registration Statement effective if the
Company shall deliver to the Holders requesting such registration an opinion of
counsel reasonably satisfactory to such Holders and their counsel to the effect
that the proposed sale or disposition of all of the Registrable Securities does
not require registration under the Securities Act for a sale or disposition in a
single public sale, and if the Company shall offer to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities. For
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purposes of this Agreement, a Person will be deemed to be a Holder of
Registrable Securities whenever such Person has the then-existing right to
acquire such Registrable Securities (by conversion, purchase or otherwise),
whether or not such acquisition has actually been effected.
"Rule 144" and "Rule 145" mean Rule 144 and Rule 145
promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section 2(a)
hereof which covers all of the Registrable Securities on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein.
"Transfer" means and includes the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security or any transfer upon any merger or consolidation) (and correlative
words shall have correlative meanings); provided however, that any transfer or
other disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a Transfer.
"Violation" has the meaning set forth in Section 5(a)(i).
"Venture Warrants" has the meaning set forth in the Recitals.
Section 2. Registration under the Securities Act.
(a) Registration Requirement. The Company shall use
commercially reasonable efforts to cause there to be filed with the Commission a
Shelf Registration Statement meeting the requirements of the Securities Act at
least 30 days prior to the Exercise Commencement Date, or if any Venture
Warrants shall not have been issued by such date, within 30 days following the
date of issuance and subsequent transfer to the Holders thereof pursuant to the
Venture Agreement, and shall use commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission within
120 days after the filing of any such Shelf Registration Statement, provided
however, the Company shall
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not be required to file a Shelf Registration Statement or cause it to be
declared effective during any Delay Period. No Holder of Registrable Securities
shall be entitled to include any of its Registrable Securities in any Shelf
Registration pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 10 Business Days
after receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the Commission to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
(b) Effectiveness Requirement. The Company agrees to use its
commercially reasonable efforts to keep each Shelf Registration Statement
continuously effective and the Prospectus usable for resales for a period
commencing on the date that such Shelf Registration Statement is initially
declared effective by the SEC and terminating on the date when all of the
Securities covered by such Shelf Registration Statement have been sold pursuant
to such Shelf Registration Statement or cease to be Registrable Securities (the
"Effectiveness Period"); provided, however, the Company shall be permitted to
suspend sales of Securities during any Delay Period.
(c) The term "Delay Period" shall mean, with respect to any
obligation to file a Shelf Registration Statements or to keep any Prospectus
usable for resales pursuant to this Section 2, the period when there exist
circumstances relating to a material pending development, including but not
limited to a pending or contemplated material acquisition or merger or other
material transaction or similar event, which would require disclosure by the
Company in such Shelf Registration Statement or Prospectus of material
information which the Company determines in good faith that it has a bona fide
business purpose for keeping confidential and non-public and the non-disclosure
of which in such Shelf Registration Statement or Prospectus might cause such
Shelf Registration Statement or Prospectus to fail to comply with applicable
disclosure requirements. A Delay Period shall commence on and include the date
that the Company gives written notice (a "Delay Notice") to the Holders that it
is not required to file any Shelf Registration Statement or cause it to be
declared effective or the Prospectus is no longer usable as a result of a
material pending development pursuant to Section 2(b) hereof and shall end on
the date when the Holders are advised in writing by the Company that the current
Delay Period has terminated (it being understood that the Company shall give
such notice to all Holders promptly upon making the determination that the Delay
Period has ended); provided; however, that the Company shall not be entitled to
Delay Periods having durations that exceed one hundred and eighty (180) days in
the aggregate during any calendar year.
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(d) Each Holder agrees that it shall give the Company notice
of not less than 5 Business Days prior to disposing of any Registrable
Securities under a Shelf Registration Statement so that the Company may make any
determination to suspend sales of Securities as contemplated in Section 2(b).
The Company will, in the event a Shelf Registration Statement is declared
effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of such Shelf Registration Statement, notify each
such Holder when such Shelf Registration Statement has become effective and take
such other actions as are required to permit unrestricted resales of the
Registrable Securities. The Company further agrees to supplement or amend each
Shelf Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the Commission.
(e) Effective Shelf Registration Statement. A Shelf
Registration Statement will not be deemed to have become effective unless it has
been declared effective by the Commission; provided, however, that if, after it
has been declared effective, the offering of Registrable Securities pursuant to
such Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court, such Shelf Registration Statement will be deemed
not to have been effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Shelf Registration Statement
may legally resume. The Company will be deemed not to have used its commercially
reasonable efforts to cause a Shelf Registration Statement to become, or to
remain, effective during the requisite period if it voluntarily takes any action
that would result in any such Shelf Registration Statement not being declared
effective or that would result in the Holders of Registrable Securities covered
thereby not being able to offer and sell such Registrable Securities during that
period, unless such action is required by applicable law.
Section 3. Registration Procedures.
(a) Obligations of the Company. In connection with its
obligations under Section 2 hereof with respect to the Shelf Registration
Statement, the Company shall, as expeditiously as practicable:
(i) prepare and file with the Commission a Shelf
Registration Statement as prescribed by Section 2(a) within
the relevant time period specified in Section 2(a) hereof on
the appropriate form under the Securities Act, which form
shall (i) be selected by the Company, (ii) be available for
the sale of the Registrable Securities by the selling Holders
thereof, and (iii) comply as to form in all material respects
with the requirements of the applicable form and include all
financial statements required by the Commission to be filed
therewith; the
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Company shall use its commercially reasonable efforts to cause
such Shelf Registration Statement to become effective and
remain effective and the Prospectus usable for resales in
accordance with Section 2 hereof, subject to the proviso
contained in Section 2(b) hereof; provided, however, that,
before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable
Securities covered by such Shelf Registration Statement, their
counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed; and
the Company shall not file any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto in respect
of which the Holders must be afforded an opportunity to review
prior to the filing of such document, other than filings
required under the Exchange Act, if the Holders, their counsel
or the managing underwriters of an underwritten offering of
Registrable Securities, if any, shall reasonably object in a
timely manner;
(ii) prepare and file with the Commission such
amendments and post- effective amendments to such Shelf
Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the Effectiveness Period,
subject to the proviso contained in the Section 2(b) hereof,
and cause each Prospectus to be supplemented, if so determined
by the Company or requested by the Commission, by any required
prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force),
under the Securities Act, respond within a reasonable time to
any comments received from the Commission with respect to such
Shelf Registration Statement, or any amendment, post-effective
amendment or supplement relating thereto, and comply with the
provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder applicable to it
with respect to the disposition of all Registrable Securities
covered by such Shelf Registration Statement during the
Effectiveness Period in accordance with the intended method or
methods of distribution by the selling Holders thereof
described in this Agreement;
(iii) register or qualify the Registrable Securities
under all applicable state securities or "Blue Sky" laws of
such jurisdictions by the time the applicable Shelf
Registration Statement is declared effective by the Commission
as any Holder of Registrable Securities covered by such Shelf
Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in
writing in advance of such date of effectiveness, and do any
and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter
to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by
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such Holder; provided, however, that the Company shall not be
required to (A) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section
3(a)(iii) hereof, (B) file any general consent to service of
process in any jurisdiction where it would not otherwise be
subject to such service of process or (C) subject itself to
taxation in any such jurisdiction if it is not then so
subject;
(iv) promptly notify each Holder of Registrable
Securities, its counsel and the managing underwriters of an
underwritten offering of Registrable Securities, if any, and
promptly confirm such notice in writing (A) when the Shelf
Registration Statement covering such Registrable Securities
has become effective and when any post-effective amendments
thereto become effective, (B) of any request by the Commission
or any state securities authority for amendments and
supplements to such Shelf Registration Statement or Prospectus
or for additional information after such Shelf Registration
Statement has become effective, (C) of the issuance or
threatened issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of
such Shelf Registration Statement or the qualification of the
Registrable Securities in any jurisdiction described in
Section 3(a)(iii) hereof or the initiation of any proceedings
for that purpose, (D) if, between the effective date of such
Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations
and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar
agreement cease to be true and correct in all material
respects, (E) of the happening of any event or the failure of
any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue
in any material respect or which causes such Shelf
Registration Statement or Prospectus to 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, and (F) of the reasonable
determination of the Company that a post-effective amendment
to such Shelf Registration Statement would be appropriate;
(v) take reasonable efforts to prevent the entry of
any stop order suspending the effectiveness of any Shelf
Registration Statement, or if entered, to obtain the
withdrawal of any such stop order at the earliest possible
moment;
(vi) furnish to each Holder of Registrable Securities
included within the coverage of a Shelf Registration
Statement, without charge, at least one conformed copy of the
Shelf Registration Statement relating to such Shelf
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Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits
thereto, unless requested);
(vii) cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends
and registered in such names as the selling Holders or any
underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities
pursuant to the Shelf Registration Statement relating thereto;
(viii) as soon as practicable after the resolution of
any matter or event specified in Sections 3(a)(iii)(B),
3(a)(iii)(C), 3(a)(iii)(E) (subject to the proviso contained
in Section 2(b) hereof) and 3(a)(iii)(F) hereof, prepare a
supplement or post-effective amendment to the applicable Shelf
Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such 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;
(ix) a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Shelf
Registration Statement or a Prospectus after the initial
filing of such Shelf Registration Statement, provide a
reasonable number of copies of such document to the Holders
and make such of the representatives of the Company as shall
be reasonably requested by the Holders of Registrable
Securities available for discussion of such document;
(x) if requested by the Holders of Registrable
Securities in connection with a firm commitment underwritten
offering of at least $5 million in initial public offering
price of Registrable Securities: (i) enter into such
agreements (including underwriting agreements) as are
customary in underwritten offerings and make such
representations and warranties to the underwriters (if any),
with respect to the business of the Company and its
subsidiaries as then conducted and with respect to the
applicable Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof (which may be in
the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters covering
the matters customarily covered in opinions requested in
underwritten offerings and
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such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered
by such opinion may be subject to customary qualifications and
exceptions); (iii) obtain "cold comfort" accountants' letters
and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if
necessary, any other independent certified public accountants
of any business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and
such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification
provisions and procedures customary for such agreements;
(xi) if requested by Holders of Registrable
Securities in connection with a firm underwritten commitment
offering of at least $5 million in initial public offering
price of Registrable Securities, make reasonably available for
inspection by any selling Holder of Registrable Securities who
certifies to the Company that it has a current intention to
sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such
disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such
selling Holder or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during the
Company's normal business hours, all financial and other
records, and pertinent organizational and operational
documents of the Company and its subsidiaries (collectively,
the "Records") as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities, and
cause the officers, trustees and employees of the Company and
its subsidiaries to supply all relevant information in each
case reasonably requested by any such Inspector in connection
with such Shelf Registration Statement, records and
information which the Company, in good faith, determines to be
confidential and any Records and information which it notifies
the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or
information is necessary to avoid or correct a material
misstatement or omission in the applicable Shelf Registration
Statement, (ii) the release of such Records or information is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any
action, suit or proceeding, or (iii) such Records or
information previously has been made generally available to
the public; each selling Holder of such Registrable Securities
will be required to agree in writing that Records and
information obtained by it as a result of such inspections
shall be deemed confidential and
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shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until
such is made generally available to the public through no
fault of an Inspector or a selling Holder; and each selling
Holder of such Registrable Securities will be required to
further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court
of competent jurisdiction, or in connection with any action,
suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to
prevent disclosure of the Records and information deemed
confidential;
(xii) comply with all applicable rules and
regulations of the Commission so long as any provision of this
Agreement shall be applicable and make generally available to
its securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any
twelve-month period (or 90 days after the end of any
twelve-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after
the effective date of a Shelf Registration Statement, which
statements shall cover said twelve-month periods, provided
that the obligations under this Section 3(l) shall be
satisfied by the timely filing of quarterly and annual reports
on Forms 10-Q and 10-K under the Exchange Act;
(xiii) cooperate with each seller of Registrable
Securities covered by a Shelf Registration Statement and each
underwriter, if any, participating in the disposition of such
Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(xiv) take all other steps necessary to effect the
registration of the Registrable Securities covered by a Shelf
Registration Statement contemplated hereby.
(b) Holders' Obligations.
(i) Each Holder agrees that, upon receipt of any
notice from the Company of the occurrence of any event
specified in Sections 3(a)(iii)(B), 3(a)(iii)(C),
3(a)(iii)(E), 3(a)(iii)(F) hereof or any Delay Notice, such
Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement at
issue until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
3(a)(viii)
923211.7
12
hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies
in such Holder's possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering
such Registrable Securities current at the time of receipt of
such notice.
(ii) Each Holder agrees that the Company may require
each seller of Registrable Securities as to which any
registration is being effected to furnish to it such
information regarding such seller as may be required by the
staff of the Commission to be included in the applicable Shelf
Registration Statement, the Company may exclude from such
registration the Registrable Securities of any seller who
fails to furnish such information within 10 Business Days
after receiving such request, and the Company shall have no
obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish
such information.
Section 4. Expenses of Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to a Shelf Registration
Statement for each selling Holder, including all registration, exchange listing,
accounting, filing and NASD fees, all fees and expenses of complying with
securities or Blue Sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the reasonable fees and disbursements
of counsel for the Company, and of the Company's independent public accountants,
including the expenses of "comfort letters" required by or incident to such
performance and compliance and reasonable fees and disbursements of one firm of
counsel for the Holders, underwriting discounts and commissions relating to the
Registrable Securities.
Section 5. Indemnification; Contribution.
(a) Indemnification by the Company. If any Registrable
Securities are included in a Shelf Registration Statement under this Agreement:
(i) To the extent permitted by applicable law, the
Company shall indemnify and hold harmless each selling Holder,
each Person, if any, who controls such selling Holder within
the meaning of the Securities Act, and each officer, director,
trustee, partner, and employee of such selling Holder and such
controlling Person, against any and all losses, claims,
damages, liabilities and expenses (joint or several),
including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual
or threatened action, suit, proceeding or investigation, or to
which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages,
923211.7
13
liabilities and expenses arise out of or are based upon any of
the following statements, omissions or violations
(collectively, a "Violation"):
(A) Any untrue statement or alleged
untrue statement of a material fact contained in such
registration statement, including any preliminary
prospectus or final prospectus contained therein, or
any amendments or supplements thereto or any document
incorporated by reference therein;
(B) The omission or alleged omission
to state therein a material fact required to be
stated therein, or necessary to make the statements
therein not misleading; or
(C) Any violation or alleged
violation by the Company of the federal securities
laws any applicable state securities law or any rule
or regulation promulgated under the Securities Act,
the Exchange Act or any applicable state securities
law;
provided, however, that the indemnification required by this Section 5(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
Section 5(a) shall not apply to any underwriter to the extent that any such loss
is based on or arises out of an untrue statement or alleged untrue statement of
a material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such Person at or prior to the confirmation of sale to such
Person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so. The Company shall also indemnify underwriters
participating in the distribution of the Registrable Securities, their officers,
directors, agents and employees and each Person who controls such Persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the selling Holders.
(b) Indemnification by Holder. If any of a selling Holder's
Registrable Securities are included in a registration statement under this
Agreement, to the extent permitted by applicable law, such selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act, any other
923211.7
14
selling Holder, any controlling Person of any such other selling Holder and each
officer, director, partner, and employee of such other selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities and
expenses (joint and several), including attorneys' fees and disbursements and
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation is based
on or arises from written information furnished by such selling Holder to the
Company expressly for use in connection with such registration; provided,
however, that (x) the indemnification required by this Section 5(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of the relevant selling
Holder of Registrable Securities, which consent shall not be unreasonably
withheld, and (y) in no event shall the amount of any indemnity under this
Section 5(b) exceed the gross proceeds from the applicable offering received by
such selling Holder. In no event shall a Holder be jointly liable with any other
Holder as a result of its indemnification obligations.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 5 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing for which such indemnified party may make a claim under this
Section 5, such indemnified party shall deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if not otherwise known by
the Company and materially prejudices or results in forfeiture of substantial
rights or defenses shall relieve such indemnifying party of any liability to the
indemnified party under this Section 5 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 5. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses, (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding, or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there
923211.7
15
may be one or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party and that the assertion of
such defenses would create a conflict of interest such that counsel employed by
the indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one additional firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
(d) Contribution. If the indemnification required by this
Section 5 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 5:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any Violation has
been committed by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in
Section 5(a) and Section 5(b), any legal or other fees or
expenses reasonably incurred by such party in connection with
any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
5(d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the
923211.7
16
equitable considerations referred to in Section 5(d)(i). No
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(e) Full Indemnification. If indemnification is available
under this Section 5, the indemnifying parties shall indemnify each indemnified
party to the full extent provided in this Section 5 without regard to the
relative fault of such indemnifying party or indemnified party or any other
equitable consideration referred to in Section 5(d)(i) hereof.
(f) Survival. The obligations of the Company and the selling
Holders of Registrable Securities under this Section 5 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this agreement, and otherwise.
Section 6. Covenants of the Company. The Company hereby agrees
and covenants as follows:
(a) Exchange Act Filings. The Company shall file as and when
applicable, on a timely basis, all reports required to be filed by it under the
Exchange Act. If the Company is not required to file reports pursuant to the
Exchange Act, upon the request of any Holder of Registrable Securities, the
Company shall make publicly available the information specified in subparagraph
(c)(2) of Rule 144. The Company shall take such further action as may be
reasonably required from time to time and as may be within the reasonable
control of the Company, to enable the Holders to Transfer Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 or any similar rule or regulation hereafter
adopted by the Commission.
In connection with any sale, transfer or other disposition by
a Holder of any Registrable Securities pursuant to Rule 144, the Company shall
cooperate with such Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
Securities Act legend, and enable certificates for such Registrable Securities
to be for such number of shares and registered in such names as the Holder may
reasonably request at least two business days prior to any sale of Registrable
Securities.
(b) Merger, Consolidations and Sale of Assets. The Company
shall not, directly or indirectly, (x) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or
(y) Transfer or agree to Transfer all or substantially all the Company's assets,
unless prior to such merger, consolidation, reorganization or asset Transfer,
the surviving corporation or the transferee, respectively, shall have agreed in
writing to assume the obligations of the Company under this Agreement, and for
that purpose references hereunder to "Registrable Securities" shall be deemed to
include the
923211.7
17
securities which the Holders of Registrable Securities would be entitled to
receive in exchange for Registrable Securities pursuant to any such merger,
consolidation or reorganization.
Section 7. Miscellaneous.
(a) Amendments and Waivers.
(i) The provisions of this Agreement, including the
provisions of this Section 7(a), may not be amended, modified
or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written
consent of the Company and the Holders of a majority of the
outstanding Registrable Securities, provided that no
amendment, modification or supplement or waiver or consent to
a departure with respect to Section 5 hereof shall be
effective against any Holder unless consented to in writing by
such Holder. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each Holder, each
future Holder of Registrable Securities, and the Company.
(ii) Notice of any amendment, modification or
supplement to this Agreement adopted in accordance with this
Section 7 shall be provided by the Company to the Holders at
least thirty (30) days prior to the effective date of such
amendment, modification or supplement.
(b) Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent,
postage prepaid by registered, certified or express mail, or by recognized
overnight air courier service and shall be deemed given when so delivered by
hand, or if mailed or sent by overnight courier service, on the third Business
Day after mailing (one Business Day in the case of express mail or overnight
courier service) to the parties at the following addresses:
(i) if to Limited REMI I, to:
Travelers Limited Real Estate
Mezzanine Investments I, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Real Estate Investment Number: 12832
923211.7
18
with a copy to:
Citigroup Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Real Estate Investment Number: 12832
(ii) if to General ▇▇▇▇ ▇▇, to:
Travelers General Real Estate
Mezzanine Investments II, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Real Estate Investment Number: 12833
with a copy to:
Citigroup Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Real Estate Investment Number: 12833
(iii) if to Limited ▇▇▇▇ ▇▇, to:
Travelers Limited Real Estate
Mezzanine Investments II, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Real Estate Investment Number: 12833
with a copy to:
Citigroup Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Real Estate Investment Number: 12833
923211.7
19
(iv) if to the Company, to:
Capital Trust, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or at such other address as the addressee may have furnished in writing to the
sender as provided herein.
(c) Successors, Assigns and Transferees. This Agreement shall
inure to the benefit of and be binding upon the successors, assigns and
transferees of the Company and the Holders, including, without limitation and
without the need for an express assignment, subsequent Holders who have acquired
Registrable Securities by Transfer. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities, such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof.
(d) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
923211.7
20
(g) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
923211.7
21
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
CAPITAL TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
TRAVELERS LIMITED REAL ESTATE
MEZZANINE INVESTMENTS I, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
TRAVELERS LIMITED REAL ESTATE MEZZANINE
INVESTMENTS II, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
923211.7