As filed with the Securities and Exchange Commission on May 23, 2000
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 6)
Under the Securities Exchange Act of 1934
Capital Trust, Inc.
- -------------------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock
- -------------------------------------------------------------------------------
(Title of Class of Securities)
14052H100
- -------------------------------------------------------------------------------
(CUSIP Number)
Thomas E. Kruger, Esq.
Michael L. Zuppone, Esq.
Battle Fowler LLP
75 East 55th Street
New York, NY 10022
(212) 856-7000
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
March 8, 2000
- -------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e)(f) or (g), check the following box .
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act.
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Veqtor Finance Company, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
7 SOLE VOTING POWER
3,192,288
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
3,192,288
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,192,288
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.16%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Zell General Partnership, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Illinois
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,267,288
BENEFICIALLY 8 SHARED DISPOSITIVE POWER
OWNED BY -0-
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
3,267,288
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,267,288
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.52%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sam Investment Trust
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Illinois
7 SOLE VOTING POWER
3,267,288
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON WITH
10 SHARED DISPOSITIVE POWER
3,267,288
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,267,288
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.52%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Chai Trust Company, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Illinois
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,267,288
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,267,288
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.52%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
SZ Investments, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 75,000
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
75,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.36%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 Samstock, L.L.C.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,267,288
BENEFICIALLY
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING -0-
PERSON WITH 9 SOLE DISPOSITION POWER
-0-
10 SHARED DISPOSITIVE POWER
75,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
75,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.36%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CMH Investment Partnership LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,300,132
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,330,132
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.07%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Craig M. Hatkoff
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,489,799
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 2,489,799
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,489,799
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.82%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JRK Investment Partnership LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,330,132
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,330,132
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.07%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John R. Klopp
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,481,799
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH -0-
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 2,481,799
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,481,799
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.78%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
931287.3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
This Amendment No. 6 to Schedule 13D is filed by the Reporting Persons (as
defined below) pursuant to rule 13d-2(a) under the Securities Exchange Act of
1934, as amended. This Amendment No. 6 to Schedule 13D amends and supplements:
o the Schedule 13D, dated July 15, 1997, as filed with
the Securities and Exchange Commission (the "SEC") on
July 25, 1997, as amended by
o Amendment No. 1, as filed with the SEC on December 22, 1997, as
amended by
o Amendment No. 2, as filed with the SEC on July 2, 1998, as
amended by
o Amendment No. 3, as filed with the SEC on August 19, 1999, as
amended by
o Amendment No. 4, as filed with the SEC on September 30, 1999, as
amended by
o Amendment No. 5, as filed with the SEC on February 2, 2000
(together with the original schedule as previously amended, the
"Schedule 13D"). ------------
The Reporting Persons are:
(i) Veqtor Finance Company, L.L.C., a Delaware limited liability
company ("VFC");
(ii) Samstock, L.L.C., a Delaware limited liability company
("Samstock");
(iii) SZ Investments LLC, a Delaware limited liability company and the
sole member of Samstock ("SZI");
(iv) Zell General Partnership, Inc., an Illinois corporation and the
sole managing member of SZI and the sole managing member of VFC
("Zell GP");
(v) the Sam Investment Trust, a trust formed under Illinois law and
the sole stockholder of Zell GP ("Sam Trust");
(vi) Chai Trust Company, L.L.C., an Illinois limited liability company
and the trustee of Sam Trust ("Chai");
(vii) CMH Investment Partnership LP, a Delaware limited partnership
("Hatkoff LP");
(viii) Mr. Craig M. Hatkoff, a citizen of the United States and the
general partner of Hatkoff LP ("Hatkoff");
(ix) JRK Investment Partnership LP, a Delaware limited partnership
("Klopp LP"); and
(x) Mr. John R. Klopp, a citizen of the United States and the general
partner of Klopp LP ("Klopp" and, collectively with VFC,
Samstock, SZI, Zell GP, Sam Trust, Chai, Hatkoff LP, Hatkoff and
Klopp LP, the "Reporting Persons").
The original schedule reported beneficial ownership of class A common
shares of beneficial interest, $1.00 par value (the "Class A Common Shares"), in
Capital Trust, a California business trust. As reported in Amendment No. 3 to
the Schedule 13D, Capital Trust has been reorganized into Capital Trust, Inc., a
Maryland corporation and each Class A Common Share has been converted into one
share of class A common stock, par value $.01 per share, of Capital Trust, Inc.
This statement therefore now relates to the shares of class A common stock, par
value $.01 per share ("Class A Common Stock"), of Capital Trust, Inc.
(hereinafter the "Issuer"), whose principal office is located at 605 Third
Avenue, 26th Floor, New York, New York 10016. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Schedule 13D.
931287.3
1
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
Item 5. Interest in Securities of the Issuer.
Item 5 is amended as follows:
(a) and (b) The aggregate percentage of shares of Class A Common Stock
reported beneficially owned by the Reporting Persons as of May 18, 2000 is based
upon 21,058,228 shares of Class A Common Stock issued and outstanding as
reported in the Issuer's proxy statement for special meeting of shareholders to
be held on June 21, 2000. The Reporting Persons as a group beneficially own
8,188,886 shares of Class A Common Stock, including (i) 7,955,552 outstanding
shares of Class A Common Stock; and (ii) 233,334 shares of stock issuable upon
exercise or conversion of outstanding stock options. The foregoing shares
represent approximately 38.60% of the outstanding shares of Class A Common Stock
(calculated in accordance with Rule 13d-3). VFC holds of record and thereby
directly beneficially owns and has the sole direct power to vote 3,192,288 of
the foregoing outstanding shares of Class A Common Stock (the "VFC Reported
Shares"). Chai, Sam Trust and Zell GP each have the indirect power to vote the
VFC Reported Shares. EGI, Chai, Sam Trust and Zell GP share the indirect power,
and VFC shares the direct power, to dispose of the VFC Reported Shares. Samstock
directly beneficially owns and has the sole direct power to vote 75,000 shares
of Class A Common Stock ("Samstock Reported Shares"). Chai, Sam Trust, Zell GP
and SZI each have the indirect power to vote the Samstock Reported Shares. EGI,
Chai, Sam Trust, Zell GP and SZI each share the indirect power and Samstock
shares the direct power to dispose of the Samstock Reported Shares. Hatkoff LP
holds of record and thereby directly beneficially owns and has the sole power to
vote and dispose of 2,330,132 of the foregoing outstanding shares of Class A
Common Stock (the "Hatkoff LP Reported Shares"). Hatkoff has the indirect power
to vote or dispose of the Hatkoff LP Reported Shares. Hatkoff beneficially owns
and has the sole power to vote and dispose of 18,000 outstanding shares of Class
A Common Stock. Hatkoff beneficially owns and will have the sole power to vote
and dispose of 141,667 shares of Class A Common Stock issuable upon the exercise
of options to purchase shares of Class A Common Stock that are, or become within
60 days, vested and exercisable. Klopp LP holds of record and thereby directly
beneficially owns and has the sole power to vote and dispose of 2,330,132 of the
foregoing outstanding shares of Class A Common Stock (the "Klopp LP Reported
Shares"). Klopp has the indirect power to vote or dispose of the Klopp LP
Reported Shares. Klopp beneficially owns and has the sole power to vote and
dispose of 10,000 outstanding shares of Class A Common Stock. Klopp beneficially
owns and will have the sole power to vote and dispose of 141,667 shares of Class
A Common Stock issuable upon the exercise of options to purchase shares of Class
A Common Stock that are, or become within 60 days, vested and exercisable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
respect to Securities of the Issuer.
Item 6 is amended and supplemented by adding the following:
On March 8, 2000, the Issuer entered into a strategic relationship with
Citigroup Investments Inc., a Delaware corporation ("CIG"), pursuant to which,
among other things, their respective affiliates will co- sponsor, commit to
invest capital in and manage high yield commercial real estate mezzanine
investment opportunity funds ("Mezzanine Funds").
The strategic relationship is governed by a venture agreement, dated as of
March 8, 2000 (the "Venture Agreement"), amongst Travelers Limited Real Estate
Mezzanine Investments I, LLC, a Delaware limited liability company ("Limited
REMI I"), Travelers General Real Estate Mezzanine Investments II,
931287.3
2
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
LLC, a Delaware limited liability company ("General REMI II"), Travelers Limited
Real Estate Mezzanine Investments II, LLC, a Delaware limited liability company
("Limited REMI II" and together with Limited REMI I and General REMI II, the
"CIG Parties"), 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,
a Delaware limited liability company ("CT-F2-LP"), 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 Issuer. The CIG Parties are
affiliates of CIG and the CT Parties are wholly owned subsidiaries of the
Issuer. A copy of the Venture Agreement was filed as Exhibit 10.1 to Capital
Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on March 23,
2000 and is incorporated herein by reference.
Pursuant to the Venture Agreement, the Issuer has agreed, subject to
stockholder approval and certain other conditions, to issue, in connection with
the organization and capitalization of certain of the Mezzanine Funds, warrants
to purchase up to 5,250,000 shares of Class A Common Stock at $5.00 per share
for ultimate transfer to Limited REMI II or a designated affiliate thereof (the
"Warrant Issuance") or alternatively, if the required stockholder approval of
the issuance of such shares underlying such warrants is not obtained, to provide
contingent cash rights designed to provide equivalent value.
Pursuant to the Venture Agreement, the Issuer has also agreed as soon as
possible to take, and submit to stockholders for approval, the steps necessary
for it to be taxed as a real estate investment trust ("REIT Tax Matters") on
terms mutually satisfactory to the Issuer and the CIG Parties subject to changes
in law, acts of God or force majeure, or good faith inability to meet the
requisite qualifications.
In connection with the Venture Agreement, the number of directorships on
Issuer's board of directors was increased by two, and Marc Weill and Michael
Watson (along with any of their successors designated by the CIG Parties, the
"CIG Parties' Designees") were appointed directors of the Issuer.
In connection with the Venture Agreement, each of (i) VFC, (ii) Samstock,
(iii) Klopp and Klopp LP and (iv) Hatkoff and Hatkoff LP separately entered into
a stockholder approval agreement with General REMI II. Pursuant to each such
agreement, each such Reporting Person signatory thereto agreed, subject to
certain limitations contained therein in the case of any Reporting Person who is
an officer or director of the Issuer, to vote its shares of Class A Common Stock
in favor of the Warrant Issuance and any REIT Tax Matter submitted for
stockholder approval. Copies of the stockholder approval agreements are attached
hereto as Exhibits 3 through 6, and are incorporated herein by reference.
In connection with the Venture Agreement, VFC, Samstock, Klopp, Klopp LP,
Hatkoff and Hatkoff LP entered into a single stockholder voting and lock-up
agreement with General REMI II. Pursuant to such stockholder voting and lock-up
agreement, such Reporting Persons agreed to lock-up provisions restricting their
ability to sell, transfer or pledge their shares of Class A Common Stock and,
subject to certain limitations contained therein in the case of Reporting
Persons who are officers or directors of the Issuer, to vote their shares of
Class A Common Stock in favor of the continued election of the CIG Parties'
Designees to the Issuer's board of directors and in favor of any REIT Tax Matter
submitted for stockholder approval. A copy of the voting and lock-up agreement
is attached hereto as Exhibit 2, and is incorporated herein by reference.
931287.3
3
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
931287.3
4
<PAGE>
CUSIP No. 14052H100 SCHEDULE 13D
Item 7. Material to Be Filed as Exhibits
Item 7 is amended and supplemented by adding the following:
Exhibit No. Description
<TABLE>
<S> <C>
1. Joint Filing Agreement and Power of Attorney, dated May 18, 2000.
2. Stockholder Voting and Lock-Up Agreement, dated as of March 8, 2000, by and
among Travelers General Real Estate Mezzanine Investments II, LLC, Veqtor
Finance Company, L.L.C., Samstock, L.L.C., CMH Investment Partnership LP,
Craig M. Hatkoff, JRK Investment Partnership LP and John R. Klopp.
3. Stockholder Approval Agreement, dated as of March 8, 2000, among Travelers
General Real Estate Mezzanine Investments II, LLC and Veqtor Finance
Company, L.L.C.
4. Stockholder Approval Agreement, dated as of March 8, 2000, among Travelers
General Real Estate Mezzanine Investments II, LLC and Samstock, L.L.C.
5. Stockholder Approval Agreement, dated as of March 8, 2000, among Travelers
General Real Estate Mezzanine Investments II, LLC, CMH Investment
Partnership LP, and Craig M. Hatkoff.
6. Stockholder Approval Agreement, dated as of March 8, 2000, among Travelers
General Real Estate Mezzanine Investments II, LLC, JRK Investment Partnership
LP and John R. Klopp.
</TABLE>
931287.3
5
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and correct and agrees that this statement may be filed jointly
with the other undersigned party.
Dated: May 18, 2000
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
931287.3
<PAGE>
Veqtor Finance Company, L.L.C.
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Samstock, L.L.C.
By: SZ Investments, LLC,
its member
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
SZ Investments, LLC
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Zell General Partnership, Inc.
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Sam Investment Trust
By: Chai Trust Company, L.L.C., trustee
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
931287.3
<PAGE>
Chai Trust Company, L.L.C.
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
CMH Investment Partnership LP
By: /s/ Craig M. Hatkoff
Name: Craig M. Hatkoff
Title: General Partner
Craig M. Hatkoff
/s/ Craig M. Hatkoff
Craig M. Hatkoff
JRK Investment Partnership LP
By: /s/ John R. Klopp
Name: John R. Klopp
Title: General Partner
John R. Klopp
/s/ John R. Klopp
John R. Klopp
931287.3
Exhibit 1
JOINT FILING AGREEMENT AND POWER OF ATTORNEY
(i) Joint Filing. Each of the undersigned persons does hereby agree to
jointly file with the Securities and Exchange Commission a Schedule 13D on
behalf of each of them with respect to their beneficial ownership of shares of
class A common stock, par value $.01 per share, of Capital Trust, Inc.
(ii) Power of Attorney. Know all persons by these presents that each person
whose signature appears below constitutes and appoints Donald J. Liebentritt,
Alisa M. Singer and John R. Klopp, and each of them, as his or her true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments to the Schedule 13D filed
on behalf of each of them with respect to their beneficial ownership of
securities of Capital Trust, Inc., and to file the same, with all exhibits
thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or such person or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Dated: May 18, 2000
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
931287.3
<PAGE>
Veqtor Finance Company, L.L.C.
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Samstock, L.L.C.
By: SZ Investments, LLC,
its member
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
SZ Investments, LLC
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Zell General Partnership, Inc.
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
Sam Investment Trust
By: Chai Trust Company, L.L.C., trustee
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
931287.3
<PAGE>
Chai Trust Company, L.L.C.
By: /s/ Donald J. Liebentritt
Name: Donald J. Liebentritt
Title: Vice President
CMH Investment Partnership LP
By: /s/ Craig M. Hatkoff
Name: Craig M. Hatkoff
Title: General Partner
Craig M. Hatkoff
/s/ Craig M. Hatkoff
Craig M. Hatkoff
JRK Investment Partnership LP
By: /s/ John R. Klopp
Name: John R. Klopp
Title: General Partner
John R. Klopp
/s/ John R. Klopp
John R. Klopp
931287.3
STOCKHOLDER VOTING AND LOCK-UP AGREEMENT
This STOCKHOLDER VOTING AND LOCK-UP AGREEMENT (this "Agreement") is made
and entered into as of March 8, 2000, by and among Travelers General Real Estate
Mezzanine Investments II, LLC, a Delaware limited liability Company ("General
REMI II "), and the holders of shares of class A common stock, par value $.01
per share, of Capital Trust, Inc., a Maryland corporation ("CT"), identified on
Schedule A attached hereto (collectively, the "Stockholders").
Preliminary Statement
A. CT and certain of its affiliates and General REMI II and certain of its
Affiliates (the "CIG Parties"), propose to enter into a venture agreement, dated
as of the date hereof (the "Venture Agreement"), 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.
B. As of the date hereof, the Stockholders own in the aggregate 7,955,552
shares of class A common stock, par value $.01 per share, of CT ("CT Common
Stock") and each Stockholder owns such number of shares of CT Common Stock as is
set forth opposite its name on Schedule A attached hereto.
C. As set forth in the Venture Agreement, the Board of Directors of CT has
elected two individuals designated by the CIG Parties (the "Initial CIG Parties
Designees") identified on Schedule B attached hereto as directors of CT.
D. As a condition to the CIG Parties' willingness to enter into the Venture
Agreement, the CIG Parties have requested the Stockholders to enter into this
Agreement.
E. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Venture Agreement.
NOW, THEREFORE, to induce General REMI II to enter into, and in
consideration of General REMI II entering into, the Venture Agreement, and in
consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
912258.11
<PAGE>
Voting and Lock-Up
1. Shares Subject to Agreement. Each of the Stockholders, respectively,
agrees to hold all shares of voting stock of CT registered in the Stockholder's
respective name or beneficially owned by the Stockholder as of the date hereof
(hereinafter collectively referred to as the "Shares") subject to, and to vote
the Shares in accordance with, the provisions of this Agreement.
2. Voting Agreement.
(a) On each occasion at which the holders of voting stock of CT meet,
or act by written consent in lieu of meeting, for the purpose of electing
directors, each Stockholder shall vote all Shares for the election of each
of the two individuals designated by General REMI II (the "CIG Parties
Designees") in accordance with the provisions of Section 2(b) at such time
as such designee stands for election to the board of directors of CT (the
"CT Board").
(b) The Stockholders who are directors of CT shall, consistent with
and subject to their duties as directors under the Maryland General
Corporation Law, in their capacity as directors, take such action as may
reasonably be within their power to cause the CT Board to elect or nominate
for election as directors the CIG Parties Designees and shall promptly
provide prior written notice of the CT Board's consideration of the
election or the nomination of individuals for election as directors of CT,
whereupon General REMI II shall promptly provide written notice of the
name(s) of the CIG Parties Designee(s) designated by them to the extent
that one or more of the incumbent Initial CIG Parties Designees or CIG
Parties Designees, as the case may be, is unable to stand for reelection
for any reason or General REMI II intends to designate an individual to
replace such designee(s) and biographical information relating to such
designee(s) in a form compliant with applicable securities laws and
regulations and with the charter and bylaws of CT. In the absence of such
notice from General REMI II, the incumbent Initial CIG Designees or the CIG
Parties Designees, as the case may be, then serving on the CT Board shall
be deemed to be the CIG Parties Designees designated by General REMI II.
Any Stockholder who is a director of CT shall, consistent with and subject
to his duties as a director under the Maryland General Corporation Law, in
his capacity as a director, recommend to the CT Board that the board
nominate the CIG Parties Designees for, actively solicit stockholder
proxies in favor of their, election as directors of CT.
(c) The Stockholders shall not take, or support the taking of, any
action to remove as a director any CIG Parties Designee unless General REMI
II 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 any of the CIG Parties Designees ceases to
serve as a director of the Company due to death, resignation or removal of
said director, then General REMI II shall submit written notice to the
Stockholders designating an individual to replace said CIG Parties
Designee. Any Stockholder who is a director of CT shall, consistent with
and subject to his duties as a director under the
2
912258.11
<PAGE>
Maryland General Corporation Law, in his capacity as a director, promptly
recommend that the board of directors of CT elect such replacement designee
as a director of CT and, when called for a vote of the CT Board, vote for
such replacement designee.
(d) On each occasion at which the holders of voting stock of CT meet,
or act by written consent in lieu of meeting, for the purpose of acting on
any REIT Tax Matter submitted to a vote of stockholders pursuant to Section
2.14 of the Venture Agreement, each Stockholder shall vote all Shares in
favor of such REIT Tax Matter.
(e) On each occasion at which the holders of voting stock of CT meet,
or act by written consent in lieu of meeting, for the purpose of acting on
any amendment of CT's charter and amended and restated bylaws or other
proposal or transaction involving CT or any of its subsidiaries, which
amendment or other proposal or transaction would reasonably be expected in
any manner to impede, frustrate, prevent, nullify CT's ability or
obligation to consummate or effect any REIT Tax Matter, each Stockholder
shall vote all Shares against any such amendment or other proposal or
transaction.
3. Termination of Voting Agreement.
(a) The rights and obligations contained in Sections 2(a), (b) and (c)
shall terminate and shall be of no further legal force and effect on the
earlier of the date on which: (i) the CIG Parties no longer comply with the
CIG Parties Ownership Requirement; (ii) CIG Real Estate no longer complies
with the Competing Fund Restriction; (iii) if the Fund II Initial Closing
shall not have occurred by no later than December 31, 2000 or any Extension
Date, (a) the Unwind as set forth in the Fund I Agreement is completed or
(b) any dissolution or liquidation of Fund I in accordance with its terms
is completed; or (iv) upon the resignation of the CIG Parties Initial Board
Designees as set forth in Section 2.12(e) of the Venture Agreement if the
CIG Parties or the CT Parties exercise their right to terminate the Venture
Agreement pursuant to such section.
(b) The rights and obligations contained in Sections 2(d) and (e)
shall terminate and shall be of no further legal force and effect on the
earlier of the date on which (i) stockholders of CT shall have considered
and voted upon any REIT Tax Matters presented for a vote pursuant to
Section 2.14 of the Venture Agreement, (ii) if the Fund II Initial Closing
shall not have occurred by no later than December 31, 2000 or any Extension
Date, (a) the Unwind set forth in the Fund I Agreement is commenced or (b)
any dissolution or liquidation of Fund I in accordance with its terms is
completed, (iii) the Appraisal Procedures shall have commenced with respect
to the Fair Market Value of the CIG Parties' and their Affiliates' Board
Right Shares pursuant to Section 2.14 of the Venture Agreement, or (iv)
upon the resignation of the CIG Parties Initial Board Designees as set
forth in Section 2.12(e) of the Venture Agreement if the CIG Parties or the
CT Parties exercise their right to terminate the Venture Agreement pursuant
to such section.
3
912258.11
<PAGE>
(c) The rights and obligations contained in Section 2 shall also
terminate and shall be of no further legal force and effect, with respect
to any Stockholder who is an employee of the Company and any Stockholder
who is an affiliate of such employee, upon the date of termination of
employment with the Company for any reason.
4. Lock-Up Agreement.
(a) Subject to Section 4(b), without the prior written consent of
General REMI II, the Stockholders shall not, directly or indirectly (i)
offer, pledge, sell, contract to sell, sell any option, right or warrant
for the sale of, or otherwise dispose of or transfer any CT Common Stock,
or any other security or other instrument which by its terms is convertible
into, exercisable or exchangeable for CT Common Stock, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers in whole or in part, directly
or indirectly, the economic consequence of ownership of any CT Common
Stock, whether any such swap or transaction is to be settled by delivery of
CT Common Stock or other securities, in cash or otherwise.
(b) Notwithstanding the foregoing, nothing contained in this Agreement
shall be deemed to prohibit any Stockholder from (i) selling or
transferring at any time during the Initial Period up to a number of shares
of CT Common Stock that does not exceed in the aggregate 10% of the shares
of CT Common Stock owned by such Stockholder as of the date hereof
("Lock-Up Liquidity Shares"), (ii) selling or transferring during any full
year period within the Restricted Period (as defined below) and thereafter
a number of shares of CT Common Stock that does not exceed the cumulative
Annual Percentage Limit (as defined below) ("Restricted Period Transferable
Shares") plus the number of Lock-Up Liquidity Shares not transferred
pursuant to the provisions of clause (i) of this Section 4(b), (iii)
pledging in one or more transaction(s) up to such number of its shares of
CT Common Stock to any nationally recognized financial institution as
collateral for a bona fide third party loan or using up to such number of
its shares of CT Common Stock as collateral for a bona fide third party
margin loan with a nationally recognized financial institution or
broker/dealer that is equal to the maximum number that may be pledged or
margined to secure an aggregate debt obligation (loan or margin amount)
that does not exceed an amount equal to the greater of: (A) 33% multiplied
by the aggregate Market Value (as defined below) of the shares of CT Common
Stock held by such Stockholder at that time or (B) the product of (x) the
percentage obtained by dividing the number of Lock-up Liquidity Shares not
transferred pursuant to clause (i) of this Section 4(b) plus the number of
Restricted Period Transferable Shares accrued for transfer, but not
transferred pursuant to clause (ii) of this Section 4(b), by the total
number of shares of CT Common Stock held by such Stockholders as of the
date hereof and (y) the aggregate Market Value of the shares of CT Common
Stock held by such Stockholder at that time, or (iv) subject to Section 10,
converting or exchanging shares of CT Common Stock for other securities of
CT or a successor corporation or entity pursuant to any agreement or plan
of recapitalization, reorganization, merger or sale of substantially all
assets. The term "Annual Percentage Limit" means, with respect to any
Stockholder, the product
4
912258.11
<PAGE>
obtained by multiplying (i) the total number of shares of CT Common Stock
held by such Stockholder as of the date hereof by (ii) a fraction the
numerator of which is one (1) and the denominator of which is the sum of
one (1) plus the total number of full year periods contained in the
Investment Period for Fund II.
(c) For purposes of this Section 4, the following terms shall have the
following meanings:
"Closing Price" with respect to any security on any day, means the
last reported sale price, regular way on such day, or, if no sale
takes place on such day, the average of the reported closing bid and
asked prices on such day, regular way, in either case as reported on
the NYSE Composite Tape, or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which such security is listed or
admitted to trading, or, if such security is not listed or admitted to
trading on a national securities exchange, on the NASDAQ Stock Market
of the National Association of Securities Dealers, Inc., or, if such
security is not quoted or admitted to trading on such quotation
system, on the principal quotation system on which such security is
listed or admitted to trading or quoted, or, if not listed or admitted
to trading or quoted on any national securities exchange or quotation
system, the average of the closing bid and asked prices of such
security in the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such
manner, as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors (or any committee
duly authorized by the Board of Directors) for that purpose or, if not
so available in such manner, as otherwise determined in good faith by
the Board of Directors (or any committee duly authorized by the Board
of Directors).
"Initial Period" means the period from the date hereof until the
earlier of (i) the commencement of the Investment Period for Fund II,
(ii) December 31, 2000 or any Extension Date or (iii) the commencement
of an Unwind.
"Market Value" means the Closing Price for the CT Common Stock on the
date preceding the loan or margin transaction.
"Restricted Period" means the Investment Period for Fund II.
5. Termination of Lock-Up Agreement.
(a) The rights and obligations contained in Section 4 shall terminate
and shall be of no further legal force and effect on the later of: (i) the
later of December 31, 2000 or any Extension Date, as the case may be, if
the Fund II Initial Closing shall not have occurred by no later than
December 31, 2000 or any such Extension Date or (ii) if the Fund II Initial
Closing has occurred, the end of the Investment Period of Fund II.
5
912258.11
<PAGE>
(b) The rights and obligations contained in Section 4 shall terminate
and shall be of no further legal force and effect, with respect to any
Stockholder who is an employee of the Company and any Stockholder who is an
affiliate of such employee, upon the date of termination of employment with
the Company for any reason.
6. Further Assurances. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional
or further transfers, assignments, endorsements, consents and other
instruments as General REMI II may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
7. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to General REMI II as follows.
(a) Authority. Each Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of each
Stockholder. This Agreement has been duly executed and delivered by each
Stockholder and, assuming the due authorization, execution and delivery by
General REMI II, constitutes a valid and binding obligation of each
Stockholder enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of or default (with or
without notice or lapse of time or both) under any provision of any trust
agreement, partnership agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree, statute,
law, ordinance, rule or regulation applicable to any of the Stockholders or
to any of the property or assets of any of the Stockholders. Except for
consents, approvals, authorizations and filings as may be required under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and the Securities Exchange Act of 1934, as amended ("Exchange
Act"), no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or other governmental authority or instrumentality, domestic, foreign or
supranational ("Governmental Entity"), is required by or with respect to
any Stockholder in connection with the execution and delivery of this
Agreement or the consummation by any Stockholder of the transactions
contemplated hereby.
(b) The Shares. The Stockholders have good and valid title to the
Shares set forth opposite its name in Schedule A attached hereto, free and
clear of any claims, liens, encumbrances, pledges and security interests
whatsoever. The Stockholders own no shares of CT Common Stock or other
shares of stock of CT, other than the Shares. Except for this Agreement and
those certain stockholder approval agreements, dated as of the date
6
912258.11
<PAGE>
hereof, by and between General REMI II and each Stockholder, no proxies or
powers of attorney have been granted with respect to the Shares and no
voting arrangement (including voting agreement or voting trust) has been
entered into affecting the Shares that will remain in effect after the
execution of this Agreement.
(c) Venture Agreement. The Stockholders understand and acknowledge
that the CIG Parties are entering into the Venture Agreement in reliance
upon the Stockholders' execution and delivery of this Agreement.
8. Representation and Warranties of General REMI II. General REMI II
represents and warrants to each Stockholder as follows:
(a) Authority. General REMI II has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General REMI II, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary limited
liability company action on the part of General REMI II. This Agreement has
been duly executed and delivered by General REMI II, assuming the due
authorization, execution and delivery by each of the Stockholders,
constitutes a valid and binding obligation of General REMI II enforceable
in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally or by general principles governing
the availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any charter, by-law, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
General REMI II or to any of the property or assets of any of General REMI
II. Except for consents, approvals, authorizations and filings as may be
required under the HSR Act and the Exchange Act, no consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity, is required by or with respect to any Stockholder in
connection with the execution and delivery of this Agreement or the
consummation by General REMI II of the transactions contemplated hereby.
9. Duty. Notwithstanding the covenants of Stockholders contained in Section
2, any Stockholder who is an officer or director of CT, only in his capacity as
an officer or director of CT, may take any such action that is in furtherance of
the exercise of his duties as an officer or director under Maryland law, and no
such action in furtherance of the exercise of such duties shall be deemed to be
a breach or violation of the covenants of such Stockholder contained in Section
2 and the Stockholders shall not have any liability hereunder for any such
action taken in his capacity as an officer and director of CT in furtherance of
the exercise of such duties.
7
912258.11
<PAGE>
10. After Acquired Shares. In the event that, subsequent to the date of
this Agreement, (i) any shares of stock or other securities of CT or another
corporation or entity are issued on, or in conversion of or exchange for, any of
the Shares held by the Stockholders as of the date hereof by reason of any stock
dividend, stock split, consolidation of shares, reclassification or agreement or
plan of merger or consolidation or sale of substantially all assets involving
CT, such shares or securities shall be deemed to be Shares for all purposes of
this Agreement and (ii) any shares of voting stock of CT are acquired
beneficially or of record by the Stockholders, such shares of voting stock shall
be deemed to be Shares for purposes of only Section 2 of this Agreement.
11. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that General REMI II may assign, in
its sole discretion, any or all of its rights and interests to Citigroup Inc. or
any of its direct or indirect wholly owned subsidiaries or other entities or to
Travelers Property Casualty Corp. or any of its direct or indirect wholly owned
subsidiaries or other entities. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of any
Stockholder that is an individual, the heirs, executors and administrators of
such Stockholder.
12. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or any New York state court,
this being in addition to any other remedy to which they are entitled at
law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed to the mailing addresses as shown on the signature pages hereto,
with copies as indicated below each party's address or such other address
as the parties may designate in a notice delivered to the other parties
hereto:
8
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<PAGE>
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited, to matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach. No waivers of any breach of this
Agreement extended by any party hereto to any other party shall be
construed as a waiver of any rights or remedies of any other party hereto
or with respect to any subsequent breach.
9
912258.11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GENERAL REMI II: TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ Michael Watson
---------------------------
Michael Watson
Vice President
Travelers General Real Estate
Mezzanine Investments II, LLC
205 Columbus Blvd., 9PB
Hartford, Connecticut 06183-2030
Attn: Duane Nelson, Esq.
Real Estate Investment Number: 12833
With copies to:
Citigroup Investments Inc.
388 Greenwich Street, 36th Floor
New York, New York 10013
Attn: Mr. Michael Watson
Real Estate Investment Number: 12833
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1900
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
10
912258.11
<PAGE>
STOCKHOLDERS: JOHN R. KLOPP
/s/ John R. Klopp
------------------------------
John R. Klopp
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
JRK INVESTMENT PARTNERSHIP LP
By: /s/ John R. Klopp
---------------------------
Name: John R. Klopp
Title: General Partner
JRK Investment Partnership LP
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
Attn: John R. Klopp
CRAIG M. HATKOFF
By: /s/ Craig M. Hatkoff
---------------------------
Craig M. Hatkoff
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
CMH INVESTMENT PARTNERSHIP LP
By: /s/ Craig M. Hatkoff
---------------------------
Name: Craig M. Hatkoff
Title: General Partner
CMH Investment Partnership LP
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
Attn: Craig M. Hatkoff
11
912258.11
<PAGE>
VEQTOR FINANCE COMPANY, L.L.C.
By: Zell General Partnership, Inc.,
its managing member
By: /s/ Donald J. Liebentritt
------------------------
Name: Donald J. Liebentritt
Title: Vice President
Veqtor Finance Company, L.L.C.
c/o Equity Group Investments, L.L.C.
Two North Riverside Plaza
Chicago, Illinois 60606
SAMSTOCK, L.L.C.
By: Zell General Partnership, Inc.,
its managing member
By: Zell General Partnership, Inc.,
its managing partner
By: /s/ Donald J. Liebentritt
--------------------
Name: Donald J. Liebentritt
Title: Vice President
Samstock, L.L.C.
c/o Equity Group Investments, L.L.C.
Two North Riverside Plaza
Chicago, Illinois 60606
With copies, in the case of
each stockholder, to:
Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
Attn: Mr. John Klopp
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Thomas E. Kruger, Esq.
12
912258.11
<PAGE>
SCHEDULE A
Number of Shares of CT
Name Common Stock
---- -----------------------
John R. Klopp 10,000
JRK Investment Partnership LP 2,330,132
Craig M. Hatkoff 18,000
CMH Investment Partnership LP 2,330,132
Veqtor Finance Company L.L.C. 3,192,288
Samstock, L.L.C. 75,000
13
912258.11
<PAGE>
SCHEDULE B
Marc Weill
Michael Watson
14
912258.11
STOCKHOLDER APPROVAL AGREEMENT
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of March 8,
2000, among Travelers General Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company ("General REMI II"), and Veqtor Finance
Company, L.L.C., a Delaware liability company ("Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and certain of its
affiliates (the "CT Parties") and General REMI II and certain of its Affiliates
(the "CIG Parties"), propose to enter into a venture agreement, dated as of the
date hereof (the "Venture Agreement"), pursuant to which, among other things,
the CIG Parties and CT and the CT Parties will co-sponsor, commit to invest
capital in and manage real estate mezzanine investment opportunity funds.
B. The Stockholder owns in the aggregate 3,192,288 shares (the "Owned
Shares") of class A common stock, par value $.01 per share, of CT ("CT Common
Stock").
C. As a condition to the CIG Parties' willingness to enter into the Venture
Agreement, the CIG Parties have requested the Stockholder to enter into this
Agreement.
D. Capitalized terms used but not defined herein have the meanings set
forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and in
consideration of the CIG Parties entering into, the Venture Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby, jointly and severally, represents and warrants to General REMI II as
follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and, assuming the due authorization, execution and delivery by
General REMI II, constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar
926900.2
<PAGE>
laws affecting creditors' rights generally or by general principles
governing the availability of equitable remedies. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of or default (with or
without notice or lapse of time or both) under any provision of any trust
agreement, partnership agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree, statute,
law, ordinance, rule or regulation applicable to the Stockholder or to any
of the property or assets of the Stockholder. Except for consents,
approvals, authorizations and filings as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the Securities Exchange Act of 1934, as amended ("Exchange
Act"), no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or other governmental authority or instrumentality, domestic, foreign or
supranational ("Governmental Entity"), is required by or with respect to
the Stockholder in connection with the execution and delivery of this
Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(b) The Owned Shares. The Stockholder has good and valid title to the
Owned Shares, free and clear of any claims, liens, encumbrances, pledges
and security interests whatsoever. The Stockholder owns no shares of CT
Common Stock or other shares of stock of CT, other than the Owned Shares.
Except for this Agreement, and that certain stockholder voting and lock-up
agreement, dated as of the date hereof, by and among General REMI II, the
Stockholder, and the other holders of CT Common Stock named therein (the
"Voting and Lockup Agreement"), no proxies or powers of attorney have been
granted with respect to the Owned Shares and no voting arrangement
(including voting agreement or voting trust) has been entered into
affecting the Owned Shares that will remain in effect after the execution
of this Agreement.
(c) Venture Agreement. The Stockholder understands and acknowledges
that General REMI II is entering into the Venture Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement.
2. Representations and Warranties of General REMI II. General REMI II
hereby represents and warrants to the Stockholder as follows:
(a) Authority. General REMI II has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General REMI II, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary limited
liability company action on the part of General REMI II. This Agreement has
been duly executed and delivered by General REMI II,
-2-
926900.2
<PAGE>
assuming the due authorization, execution and delivery by the Stockholder,
constitutes a valid and binding obligation of General REMI II enforceable
in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally or by general principles governing
the availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any limited liability company
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to General REMI II or to any of the property or
assets of any of General REMI II. Except for consents, approvals,
authorizations and filings as may be required under the HSR Act and the
Exchange Act, no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by General
REMI II of the transactions contemplated hereby.
3. Covenants of the Stockholder. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholder agrees as
follows:
(a) At any meeting of Stockholder of CT called to vote upon the
Warrant Issuance (as such term is defined in the Venture Agreement) or at
any adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Warrant Issuance is sought,
the Stockholder shall vote (or cause to be voted) all shares of CT Common
Stock it owns or has voting control over in favor of the Warrant Issuance.
(b) At any meeting of Stockholder of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be voted)
all shares of CT Common Stock owned by it or over which it has voting
control against any amendment of CT's charter and amended and restated
bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect the Warrant
Issuance.
(c) The Stockholder shall not (i) Transfer or Otherwise Dispose (as
hereinafter defined) of, or enter into any agreement or other arrangement
with respect to, the Owned Shares to any person, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power of
attorney or otherwise with respect to, the Owned Shares, except as provided
in this Agreement and the Voting and Lockup
-3-
926900.2
<PAGE>
Agreement or (iii) take any other action that would reasonably be expected
in any way to restrict, limit, or interfere with the performance of their
obligations hereunder. Notwithstanding the foregoing, nothing contained in
this Agreement shall be deemed to restrict or prohibit the ability of (i)
the Stockholder to transfer shares to immediate family members or trusts or
other entities in connection with estate planning objectives, provided that
such transferee agrees in writing to be bound by the terms of this
Agreement as though such transferee were a Stockholder, and that notice and
a copy of such agreement are provided to General REMI II prior to such
transfer, (ii) the Stockholder from pledging up to a number of its shares
of CT Common Stock to any nationally recognized financial institution as
collateral for a bona fide third party loan or from using up to a number of
its shares of CT Common Stock as collateral for a bona fide third party
margin loan with a nationally recognized financial institution or
broker/dealer equal to the maximum number of shares that may be pledged
pursuant to the Voting and Lockup Agreement or (iii) the Stockholder to
enter into an agreement with the respect to the voting and Disposition of
shares of CT Common Stock between and among Stockholder and JRK Investment
Partnership LP and CMH Investment Partnership, LP (the "JCV Group"),
provided that the obligations of Stockholder in such agreement are
expressly subordinate to the obligations of Shareholder hereunder and there
are no parties to such agreement other than the JCV Group. For purposes of
this Agreement, "Transfer or Otherwise Dispose" means any sale, exchange,
redemption, assignment, gift, grant of a security interest, pledge or other
encumbrance, or the creation of any other claim thereto or any other
transfer or disposition whatsoever (including involuntary sales, exchanges,
transfers or other dispositions, and whether or not for cash or other
consideration) affecting the right, title, interest or possession in, to or
of CT Common Stock.
4. Additional Covenants of the Stockholder. Until the valid termination of
the provisions of this Section 4 pursuant to Section 8, the Stockholder agrees
as follows:
(a) At any meeting of Stockholder of CT called to vote upon any REIT
Tax Matter submitted to a vote pursuant to Section 2.14 of the Venture
Agreement or at any adjournment thereof or in any other circumstances upon
which the Stockholder's votes, consent or other approval with respect to
any such REIT Tax Matter is sought, the Stockholder shall vote (or cause to
be voted) all shares of CT Common Stock it owns or has voting control over
at such time in favor of such REIT Tax Matter.
(b) At any meeting of Stockholder of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's votes, consent
or other approval is sought, the Stockholder shall vote (or cause to be
voted) all shares of CT Common Stock owned by it or over which it has
voting control at such time against any amendment of CT's charter and
amended and restated bylaws or other proposal or transaction involving CT
or any of its subsidiaries, which amendment or other proposal or
transaction would reasonably be expected in any manner to impede,
frustrate,
-4-
926900.2
<PAGE>
prevent or nullify CT's ability or obligation to consummate or effect any
REIT Tax Matter.
5. Further Assurances. Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as General
REMI II may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote the
Stockholder's Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholder contained in Sections
3 and 4, any Stockholder who is an officer or director of CT, only in his
capacity as an officer or director of CT, may take any such action that is in
furtherance of the exercise of his duties as an officer or director under
Maryland law, and no such action in furtherance of the exercise of such duties
shall be deemed to be a breach or violation of the covenants of such Stockholder
contained in Sections 3 and 4 and the Stockholder shall not have any liability
hereunder for any such action taken in his capacity as an officer and director
of CT in furtherance of the exercise of such duties.
7. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that General REMI II may assign, in
its sole discretion, any or all of its rights and interests to Citigroup Inc. or
any of its direct or indirect wholly owned subsidiaries or other entities or to
Travelers Property Casualty Corp. or any of its direct or indirect wholly owned
subsidiaries or other entities. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of any
Stockholder that is an individual, the heirs, executors and administrators of
such Stockholder.
8. Termination. The rights and obligations contained in Section 3 shall
terminate and shall be of no further legal force and effect on the date on which
stockholders of CT shall have considered and voted upon the Warrant Issuance.
The rights and obligations contained in Section 4 shall terminate and shall be
of no further legal force and effect on the earlier of the date on which (i)
stockholders of CT shall have considered and voted upon any REIT Tax Matters
presented for a vote pursuant to Section 2.14 of the Venture Agreement, (ii) if
the Fund II Initial Closing shall not have occurred by no later than December
31, 2000 or any Extension Date, (a) the Unwind set forth in the Fund I Agreement
is commenced or (b) any dissolution or liquidation of Fund I in accordance with
its terms is completed, (iii) the Appraisal Procedures shall have commenced with
respect to the Fair Market Value of the CIG Parties' and their Affiliates' Board
Right Shares pursuant to Section 2.14 of the Venture Agreement, or (iv) upon the
resignation of the CIG Parties Initial Board Designees as set forth in Section
2.12(e) of the Venture Agreement if the CIG Parties or the CT Parties shall have
-5-
926900.2
<PAGE>
exercised their right to terminate the Venture Agreement pursuant to Section
2.12(e) of the Venture Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or any New York state court,
this being in addition to any other remedy to which they are entitled at
law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed as follows:
If to General REMI II, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
205 Columbus Blvd., 9PB
Hartford, Connecticut 06183-2030
Attn: Duane Nelson, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
388 Greenwich Street, 36th Floor
New York, New York 10013
Attn: Mr. Michael Watson
Real Estate Investment Number: 12833
-6-
926900.2
<PAGE>
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1900
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
If to the Stockholder, to:
c/o Equity Group Investments, Inc.
Two North Riverside Plaza
Chicago, Illinois 60606
With a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Thomas E. Kruger, Esq.
or to such other address as such party may indicate by a notice delivered
to the other parties hereto.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
-7-
926900.2
<PAGE>
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited to, matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
-8-
926900.2
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ Michael Watson
---------------------------
Michael Watson
Vice President
VEQTOR FINANCE COMPANY, L.L.C.
By: Zell General Partnership, Inc., its
managing partner
By: /s/ Donald J. Liebentritt
-----------------------------------
Name: Donald J. Liebentritt
Title: Vice President
926900.2
STOCKHOLDER APPROVAL AGREEMENT
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of March 8,
2000, among Travelers General Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company and Samstock, L.L.C., a Delaware limited
liability company ("Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and certain of its
affiliates (the "CT Parties") and General REMI II and certain of its Affiliates
(the "CIG Parties"), propose to enter into a venture agreement, dated as of the
date hereof (the "Venture Agreement"), pursuant to which, among other things,
the CIG Parties and CT and the CT Parties will co-sponsor, commit to invest
capital in and manage real estate mezzanine investment opportunity funds.
B. The Stockholder owns in the aggregate 75,000 shares (the "Owned Shares")
of class A common stock, par value $.01 per share, of CT ("CT Common Stock").
C. As a condition to the CIG Parties' willingness to enter into the Venture
Agreement, the CIG Parties have requested the Stockholder to enter into this
Agreement.
D. Capitalized terms used but not defined herein have the meanings set
forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and in
consideration of the CIG Parties entering into, the Venture Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholders
hereby, jointly and severally, represent and warrant to General REMI II as
follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and, assuming the due authorization, execution and delivery by
General REMI II, constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting
926898.4
<PAGE>
creditors' rights generally or by general principles governing the
availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any trust agreement, partnership
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Stockholder or to any of the property or
assets of the Stockholder. Except for consents, approvals, authorizations
and filings as may be required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the Securities
Exchange Act of 1934, as amended ("Exchange Act"), no consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority
or instrumentality, domestic, foreign or supranational ("Governmental
Entity"), is required by or with respect to the Stockholder in connection
with the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
(b) The Owned Shares. The Stockholder has good and valid title to the
Owned Shares, free and clear of any claims, liens, encumbrances, pledges
and security interests whatsoever. The Stockholder owns no shares of CT
Common Stock or other shares of stock of CT, other than the Owned Shares.
Except for this Agreement, and that certain stockholder voting and lock-up
agreement, dated as of the date hereof, by and among General REMI II, the
Stockholder, and the other holders of CT Common Stock named therein (the
"Voting and Lockup Agreement"), no proxies or powers of attorney have been
granted with respect to the Owned Shares and no voting arrangement
(including voting agreement or voting trust) has been entered into
affecting the Owned Shares that will remain in effect after the execution
of this Agreement.
(c) Venture Agreement. The Stockholder understands and acknowledges
that General REMI II is entering into the Venture Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement.
2. Representations and Warranties of General REMI II. General REMI II
hereby represents and warrants to the Stockholders as follows:
(a) Authority. General REMI II has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General REMI II, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary limited
liability company action on the part of General REMI II. This Agreement has
been duly executed and delivered by General REMI II, assuming the due
authorization, execution and delivery by the Stockholder, constitutes a
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926898.4
<PAGE>
valid and binding obligation of General REMI II enforceable in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles governing the
availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any limited liability company
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to General REMI II or to any of the property or
assets of any of General REMI II. Except for consents, approvals,
authorizations and filings as may be required under the HSR Act and the
Exchange Act, no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by General
REMI II of the transactions contemplated hereby.
3. Covenants of the Stockholder. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholder agrees as
follows:
(a) At any meeting of stockholders of CT called to vote upon the
Warrant Issuance (as such term is defined in the Venture Agreement) or at
any adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Warrant Issuance is sought,
the Stockholder shall vote (or cause to be voted) all shares of CT Common
Stock it owns or has voting control over in favor of the Warrant Issuance.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be voted)
all shares of CT Common Stock owned by it or over which it has voting
control against any amendment of CT's charter and amended and restated
bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect the Warrant
Issuance.
(c) The Stockholder shall not (i) Transfer or Otherwise Dispose (as
hereinafter defined) of, or enter into any agreement or other arrangement
with respect to, the Owned Shares to any person, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power of
attorney or otherwise with respect to, the Owned Shares, except as provided
in this Agreement and the Voting and Lockup Agreement or (iii) take any
other action that would reasonably be expected in any way
-3-
926898.4
<PAGE>
to restrict, limit, or interfere with the performance of their obligations
hereunder. Notwithstanding the foregoing, nothing contained in this
Agreement shall be deemed to restrict or prohibit the ability of (i) the
Stockholder to transfer shares to immediate family members or trusts or
other entities in connection with estate planning objectives, provided that
such transferee agrees in writing to be bound by the terms of this
Agreement as though such transferee were a Stockholder, and that notice and
a copy of such agreement are provided to General REMI II prior to such
transfer or (ii) the Stockholder from pledging up to a number of its shares
of CT Common Stock to any nationally recognized financial institution as
collateral for a bona fide third party loan or from using up to a number of
its shares of CT Common Stock as collateral for a bona fide third party
margin loan with a nationally recognized financial institution or
broker/dealer equal to the maximum number of shares that may be pledged
pursuant to the Voting and Lockup Agreement. For purposes of this
Agreement, "Transfer or Otherwise Dispose" means any sale, exchange,
redemption, assignment, gift, grant of a security interest, pledge or other
encumbrance, or the creation of any other claim thereto or any other
transfer or disposition whatsoever (including involuntary sales, exchanges,
transfers or other dispositions, and whether or not for cash or other
consideration) affecting the right, title, interest or possession in, to or
of CT Common Stock.
4. Additional Covenants of the Stockholder. Until the valid termination
of the provisions of this Section 4 pursuant to Section 8, the Stockholder
agrees as follows:
(a) At any meeting of stockholders of CT called to vote upon any REIT
Tax Matter submitted to a vote pursuant to Section 2.14 of the Venture
Agreement or at any adjournment thereof or in any other circumstances upon
which the Stockholder's vote, consent or other approval with respect to any
such REIT Tax Matter is sought, the Stockholder shall vote (or cause to be
voted) all shares of CT Common Stock it owns or has voting control over at
such time in favor of such REIT Tax Matter.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be voted)
all shares of CT Common Stock owned by it or over which it has voting
control at such time against any amendment of CT's charter and amended and
restated bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect any REIT Tax
Matter.
5. Further Assurances. Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as General
REMI II may
-4-
926898.4
<PAGE>
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement and to vest the power to vote the Stockholder's
Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholder contained in Sections
3 and 4, any Stockholder who is an officer or director of CT, only in his
capacity as an officer or director of CT, may take any such action that is in
furtherance of the exercise of his duties as an officer or director under
Maryland law, and no such action in furtherance of the exercise of such duties
shall be deemed to be a breach or violation of the covenants of such Stockholder
contained in Sections 3 and 4 and the Stockholders shall not have any liability
hereunder for any such action taken in his capacity as an officer and director
of CT in furtherance of the exercise of such duties.
7. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that General REMI II may assign, in
its sole discretion, any or all of its rights and interests to Citigroup Inc. or
any of its direct or indirect wholly owned subsidiaries or other entities or to
Travelers Property Casualty Corp. or any of its direct or indirect wholly owned
subsidiaries or other entities. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of any
Stockholder that is an individual, the heirs, executors and administrators of
such Stockholder.
8. Termination. The rights and obligations contained in Section 3 shall
terminate and shall be of no further legal force and effect on the date on which
stockholders of CT shall have considered and voted upon the Warrant Issuance.
The rights and obligations contained in Section 4 shall terminate and shall be
of no further legal force and effect on the earlier of the date on which (i)
stockholders of CT shall have considered and voted upon any REIT Tax Matters
presented for a vote pursuant to Section 2.14 of the Venture Agreement, (ii) if
the Fund II Initial Closing shall not have occurred by no later than December
31, 2000 or any Extension Date, (a) the Unwind set forth in the Fund I Agreement
is commenced or (b) any dissolution or liquidation of Fund I in accordance with
its terms is completed, (iii) the Appraisal Procedures shall have commenced with
respect to the Fair Market Value of the CIG Parties' and their Affiliates' Board
Right Shares pursuant to Section 2.14 of the Venture Agreement, or (iv) upon the
resignation of the CIG Parties Initial Board Designees as set forth in Section
2.12(e) of the Venture Agreement if the CIG Parties or the CT Parties shall have
exercised their right to terminate the Venture Agreement pursuant to Section
2.12(e) of the Venture Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the
-5-
926898.4
<PAGE>
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in
the State of New York or any New York state court, this being in addition
to any other remedy to which they are entitled at law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed as follows:
If to General REMI II, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
205 Columbus Blvd., 9PB
Hartford, Connecticut 06183-2030
Attn: Duane Nelson, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
388 Greenwich Street, 36th Floor
New York, New York 10013
Attn: Mr. Michael Watson
Real Estate Investment Number: 12833
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1900
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
-6-
926898.4
<PAGE>
If to the Stockholder, to:
c/o Equity Group Investments, Inc.
Two North Riverside Plaza
Chicago, Illinois 60606
With a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Thomas E. Kruger, Esq.
or to such other address as such party may indicate by a notice delivered
to the other parties hereto.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited to, matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
-7-
926898.4
<PAGE>
(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
-8-
926898.4
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ Michael Watson
------------------------------------
Michael Watson
Vice President
SAMSTOCK, L.L.C.
By: SZ Investments LLC, its sole member
By: Zell General Partnership, Inc., its
managing partner
By: /s/ Donald J. Liebentritt
---------------------------
Name: Donald J. Liebentritt
Title: Vice President
926898.4
STOCKHOLDER APPROVAL AGREEMENT
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of March 8,
2000, among Travelers General Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company ("General REMI II"), Craig M. Hatkoff
("Hatkoff") and CMH Investment Partnership LP, a Delaware limited partnership
("CMH") (Hatkoff and CMH are collectively referred to herein as the
"Stockholders" and individually referred to herein as a "Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and certain of
its affiliates (the "CT Parties") and General REMI II and certain of its
Affiliates (the "CIG Parties"), propose to enter into a venture agreement, dated
as of the date hereof (the "Venture Agreement"), pursuant to which, among other
things, the CIG Parties and CT and the CT Parties will co-sponsor, commit to
invest capital in and manage real estate mezzanine investment opportunity funds.
B. The Stockholders own in the aggregate 2,348,132 shares (the "Owned
Shares") of class A common stock, par value $.01 per share, of CT ("CT Common
Stock").
C. As a condition to the CIG Parties' willingness to enter into the
Venture Agreement, the CIG Parties have requested the Stockholders to enter into
this Agreement.
D. Capitalized terms used but not defined herein have the meanings set
forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and in
consideration of the CIG Parties entering into, the Venture Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholders. The Stockholders
hereby, jointly and severally, represent and warrant to General REMI II as
follows:
(a) Authority. Each Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of each
Stockholder. This Agreement has been duly executed and delivered by each
Stockholder and, assuming the due authorization,
926903.3
<PAGE>
execution and delivery by General REMI II, constitutes a valid and binding
obligation of each Stockholder enforceable in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time or both) under any
provision of any trust agreement, partnership agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
any of the Stockholders or to any of the property or assets of any of the
Stockholders. Except for consents, approvals, authorizations and filings as
may be required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), and the Securities Exchange Act of 1934,
as amended ("Exchange Act"), no consent, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or instrumentality,
domestic, foreign or supranational ("Governmental Entity"), is required by
or with respect to any Stockholder in connection with the execution and
delivery of this Agreement or the consummation by any Stockholder of the
transactions contemplated hereby.
(b) The Owned Shares. The Stockholders have good and valid title to
the Owned Shares, free and clear of any claims, liens, encumbrances,
pledges and security interests whatsoever. The Stockholders own no shares
of CT Common Stock or other shares of stock of CT, other than the Owned
Shares. Except for this Agreement, and that certain stockholder voting and
lock-up agreement, dated as of the date hereof, by and among General REMI
II, the Stockholders, and the other holders of CT Common Stock named
therein (the "Voting and Lockup Agreement"), no proxies or powers of
attorney have been granted with respect to the Owned Shares and no voting
arrangement (including voting agreement or voting trust) has been entered
into affecting the Owned Shares that will remain in effect after the
execution of this Agreement.
(c) Venture Agreement. The Stockholders understand and acknowledge
that General REMI II is entering into the Venture Agreement in reliance
upon the Stockholders' execution and delivery of this Agreement.
2. Representations and Warranties of General REMI II. General REMI II
hereby represents and warrants to the Stockholders as follows:
(a) Authority. General REMI II has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General
926903.3
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<PAGE>
REMI II, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary limited liability company action on
the part of General REMI II. This Agreement has been duly executed and
delivered by General REMI II, assuming the due authorization, execution and
delivery by each of the Stockholders, constitutes a valid and binding
obligation of General REMI II enforceable in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time or both) under any
provision of any limited liability company agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
General REMI II or to any of the property or assets of any of General REMI
II. Except for consents, approvals, authorizations and filings as may be
required under the HSR Act and the Exchange Act, no consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity, is required by or with respect to any Stockholder in
connection with the execution and delivery of this Agreement or the
consummation by General REMI II of the transactions contemplated hereby.
3. Covenants of the Stockholders. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholders agree as
follows:
(a) At any meeting of stockholders of CT called to vote upon the
Warrant Issuance (as such term is defined in the Venture Agreement) or at
any adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Warrant Issuance is sought,
the Stockholders shall vote (or cause to be voted) all shares of CT Common
Stock they own or have voting control over in favor of the Warrant
Issuance.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholders' vote, consent or
other approval is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock owned by them or over which they have
voting control against any amendment of CT's charter and amended and
restated bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect the Warrant
Issuance.
926903.3
-3-
<PAGE>
(c) The Stockholders shall not (i) Transfer or Otherwise Dispose (as
hereinafter defined) of, or enter into any agreement or other arrangement
with respect to, the Owned Shares to any person, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power of
attorney or otherwise with respect to, the Owned Shares, except as provided
in this Agreement and the Voting and Lockup Agreement or (iii) take any
other action that would reasonably be expected in any way to restrict,
limit, or interfere with the performance of their obligations hereunder.
Notwithstanding the foregoing, nothing contained in this Agreement shall be
deemed to restrict or prohibit the ability of (i) each Stockholder to
transfer shares to immediate family members or trusts or other entities in
connection with estate planning objectives, provided that such transferee
agrees in writing to be bound by the terms of this Agreement as though such
transferee were a Stockholder, and that notice and a copy of such agreement
are provided to General REMI II prior to such transfer, (ii) each
Stockholder from pledging up to a number of its shares of CT Common Stock
to any nationally recognized financial institution as collateral for a bona
fide third party loan or from using up to a number of its shares of CT
Common Stock as collateral for a bona fide third party margin loan with a
nationally recognized financial institution or broker/dealer equal to the
maximum number of shares that may be pledged pursuant to the Voting and
Lockup Agreement or (iii) CMH to enter into an agreement with the respect
to the voting and Disposition of shares of CT Common Stock between and
among CMH and Veqtor Finance Company, L.L.C. and JRK Investment
Partnership, LP (the "JCV Group"), provided that the obligations of CMH in
such agreement are expressly subordinate to the obligations of CMH
hereunder and there are no parties to such agreement other than the JCV
Group. For purposes of this Agreement, "Transfer or Otherwise Dispose"
means any sale, exchange, redemption, assignment, gift, grant of a security
interest, pledge or other encumbrance, or the creation of any other claim
thereto or any other transfer or disposition whatsoever (including
involuntary sales, exchanges, transfers or other dispositions, and whether
or not for cash or other consideration) affecting the right, title,
interest or possession in, to or of CT Common Stock.
4. Additional Covenants of the Stockholders. Until the valid
termination of the provisions of this Section 4 pursuant to Section 8, the
Stockholders agree as follows:
(a) At any meeting of stockholders of CT called to vote upon any REIT
Tax Matter submitted to a vote pursuant to Section 2.14 of the Venture
Agreement or at any adjournment thereof or in any other circumstances upon
which the Stockholders' vote, consent or other approval with respect to any
such REIT Tax Matter is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock they own or have voting control over
at such time in favor of such REIT Tax Matter.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholders' vote, consent or
other
926903.3
-4-
<PAGE>
approval is sought, the Stockholders shall vote (or cause to be voted) all
shares of CT Common Stock owned by them or over which they have voting
control at such time against any amendment of CT's charter and amended and
restated bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect any REIT Tax
Matter.
5. Further Assurances. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
General REMI II may reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and to vest the power to
vote such Stockholder's Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholders contained in
Sections 3 and 4, any Stockholder who is an officer or director of CT, only in
his capacity as an officer or director of CT, may take any such action that is
in furtherance of the exercise of his duties as an officer or director under
Maryland law, and no such action in furtherance of the exercise of such duties
shall be deemed to be a breach or violation of the covenants of such Stockholder
contained in Sections 3 and 4 and the Stockholders shall not have any liability
hereunder for any such action taken in his capacity as an officer and director
of CT in furtherance of the exercise of such duties.
7. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that General REMI II may
assign, in its sole discretion, any or all of its rights and interests to
Citigroup Inc. or any of its direct or indirect wholly owned subsidiaries or
other entities or to Travelers Property Casualty Corp. or any of its direct or
indirect wholly owned subsidiaries or other entities. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns and, in
the case of any Stockholder that is an individual, the heirs, executors and
administrators of such Stockholder.
8. Termination. The rights and obligations contained in Section 3 shall
terminate and shall be of no further legal force and effect on the date on which
stockholders of CT shall have considered and voted upon the Warrant Issuance.
The rights and obligations contained in Section 4 shall terminate and shall be
of no further legal force and effect on the earlier of the date on which (i)
stockholders of CT shall have considered and voted upon any REIT Tax Matters
presented for a vote pursuant to Section 2.14 of the Venture Agreement, (ii) if
the Fund II Initial Closing shall not have occurred by no later than December
31, 2000 or any Extension Date, (a) the Unwind set forth in the Fund I Agreement
is commenced or (b) any dissolution or liquidation of Fund I in accordance with
its terms is completed, (iii) the
926903.3
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<PAGE>
Appraisal Procedures shall have commenced with respect to the Fair Market Value
of the CIG Parties' and their Affiliates' Board Right Shares pursuant to Section
2.14 of the Venture Agreement, or (iv) upon the resignation of the CIG Parties
Initial Board Designees as set forth in Section 2.12(e) of the Venture Agreement
if the CIG Parties or the CT Parties shall have exercised their right to
terminate the Venture Agreement pursuant to Section 2.12(e) of the Venture
Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or any New York state court,
this being in addition to any other remedy to which they are entitled at
law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed as follows:
If to General REMI II, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
205 Columbus Blvd., 9PB
Hartford, Connecticut 06183-2030
Attn: Duane Nelson, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
388 Greenwich Street, 36th Floor
926903.3
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<PAGE>
New York, New York 10013
Attn: Mr. Michael Watson
Real Estate Investment Number: 12833
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1900
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
If to the Stockholders, to:
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
With a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Thomas E. Kruger, Esq.
or to such other address as such party may indicate by a notice delivered
to the other parties hereto.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended
926903.3
-7-
<PAGE>
to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited to, matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
926903.3
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
/s/ Michael Watson
By: ______________________________
Michael Watson
Vice President
CRAIG M. HATKOFF
/s/ Craig M. Hatkoff
____________________________________
CMH INVESTMENT PARTNERSHIP LP
By: Craig M. Hatkoff, its general partner
/s/ Craig M. Hatkoff
______________________________
Craig M. Hatkoff
926903.3
STOCKHOLDER APPROVAL AGREEMENT
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of March 8,
2000, among Travelers General Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company ("General REMI II"), John R. Klopp ("Klopp")
and JRK Investment Partnership, a Delaware limited partnership ("JRKLP") (Klopp
and JRKLP are collectively referred to herein as the "Stockholders" and
individually referred to herein as a "Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and certain of its
affiliates (the "CT Parties") and General REMI II and certain of its Affiliates
(the "CIG Parties"), propose to enter into a venture agreement, dated as of the
date hereof (the "Venture Agreement"), pursuant to which, among other things,
the CIG Parties and CT and the CT Parties will co-sponsor, commit to invest
capital in and manage real estate mezzanine investment opportunity funds.
B. The Stockholders own in the aggregate 2,340,132 shares (the "Owned
Shares") of class A common stock, par value $.01 per share, of CT ("CT Common
Stock").
C. As a condition to the CIG Parties' willingness to enter into the Venture
Agreement, the CIG Parties have requested the Stockholders to enter into this
Agreement.
D. Capitalized terms used but not defined herein have the meanings set
forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and in
consideration of the CIG Parties entering into, the Venture Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholders. The Stockholders
hereby, jointly and severally, represent and warrant to General REMI II as
follows:
(a) Authority. Each Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of each
Stockholder. This Agreement has been duly executed and delivered by each
Stockholder and, assuming the due authorization, execution and
912194.10
<PAGE>
delivery by General REMI II, constitutes a valid and binding obligation of
each Stockholder enforceable in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of or default (with or
without notice or lapse of time or both) under any provision of any trust
agreement, partnership agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree, statute,
law, ordinance, rule or regulation applicable to any of the Stockholders or
to any of the property or assets of any of the Stockholders. Except for
consents, approvals, authorizations and filings as may be required under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and the Securities Exchange Act of 1934, as amended ("Exchange
Act"), no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or other governmental authority or instrumentality, domestic, foreign or
supranational ("Governmental Entity"), is required by or with respect to
any Stockholder in connection with the execution and delivery of this
Agreement or the consummation by any Stockholder of the transactions
contemplated hereby.
(b) The Owned Shares. The Stockholders have good and valid title to
the Owned Shares, free and clear of any claims, liens, encumbrances,
pledges and security interests whatsoever. The Stockholders own no shares
of CT Common Stock or other shares of stock of CT, other than the Owned
Shares. Except for this Agreement, and that certain stockholder voting and
lock-up agreement, dated as of the date hereof, by and among General REMI
II, the Stockholders, and the other holders of CT Common Stock named
therein (the "Voting and Lockup Agreement"), no proxies or powers of
attorney have been granted with respect to the Owned Shares and no voting
arrangement (including voting agreement or voting trust) has been entered
into affecting the Owned Shares that will remain in effect after the
execution of this Agreement.
(c) Venture Agreement. The Stockholders understand and acknowledge
that General REMI II is entering into the Venture Agreement in reliance
upon the Stockholders' execution and delivery of this Agreement.
2. Representations and Warranties of General REMI II. General
REMI II hereby represents and warrants to the Stockholders as follows:
(a) Authority. General REMI II has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General REMI II, and the consummation of the transactions
contemplated hereby, have been
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duly authorized by all necessary limited liability company action on the
part of General REMI II. This Agreement has been duly executed and
delivered by General REMI II, assuming the due authorization, execution and
delivery by each of the Stockholders, constitutes a valid and binding
obligation of General REMI II enforceable in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by general principles governing the availability of equitable
remedies. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time or both) under any
provision of any limited liability company agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
General REMI II or to any of the property or assets of any of General REMI
II. Except for consents, approvals, authorizations and filings as may be
required under the HSR Act and the Exchange Act, no consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity, is required by or with respect to any Stockholder in
connection with the execution and delivery of this Agreement or the
consummation by General REMI II of the transactions contemplated hereby.
3. Covenants of the Stockholders. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholders agree as
follows:
(a) At any meeting of stockholders of CT called to vote upon the
Warrant Issuance (as such term is defined in the Venture Agreement) or at
any adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Warrant Issuance is sought,
the Stockholders shall vote (or cause to be voted) all shares of CT Common
Stock they own or have voting control over in favor of the Warrant
Issuance.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholders' vote, consent or
other approval is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock owned by them or over which they have
voting control against any amendment of CT's charter and amended and
restated bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect the Warrant
Issuance.
(c) The Stockholders shall not (i) Transfer or Otherwise Dispose (as
hereinafter defined) of, or enter into any agreement or other arrangement
with respect
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to, the Owned Shares to any person, (ii) enter into any voting arrangement,
whether by proxy, voting agreement, voting trust, power of attorney or
otherwise with respect to, the Owned Shares, except as provided in this
Agreement and the Voting and Lockup Agreement or (iii) take any other
action that would reasonably be expected in any way to restrict, limit, or
interfere with the performance of their obligations hereunder.
Notwithstanding the foregoing, nothing contained in this Agreement shall be
deemed to restrict or prohibit the ability of (i) each Stockholder to
transfer shares to immediate family members or trusts or other entities in
connection with estate planning objectives, provided that such transferee
agrees in writing to be bound by the terms of this Agreement as though such
transferee were a Stockholder, and that notice and a copy of such agreement
are provided to General REMI II prior to such transfer, (ii) each
Stockholder from pledging up to a number of its shares of CT Common Stock
to any nationally recognized financial institution as collateral for a bona
fide third party loan or from using up to a number of its shares of CT
Common Stock as collateral for a bona fide third party margin loan with a
nationally recognized financial institution or broker/dealer equal to the
maximum number of shares that may be pledged pursuant to the Voting and
Lockup Agreement or (iii) JRKLP to enter into an agreement with the respect
to the voting and Disposition of shares of CT Common Stock between and
among JRKLP and Veqtor Finance Company, L.L.C. and CMH Investment
Partnership, LP (the "JCV Group"), provided that the obligations of JRKLP
in such agreement are expressly subordinate to the obligations of JRKLP
hereunder and there are no parties to such agreement other than the JCV
Group. For purposes of this Agreement, "Transfer or Otherwise Dispose"
means any sale, exchange, redemption, assignment, gift, grant of a security
interest, pledge or other encumbrance, or the creation of any other claim
thereto or any other transfer or disposition whatsoever (including
involuntary sales, exchanges, transfers or other dispositions, and whether
or not for cash or other consideration) affecting the right, title,
interest or possession in, to or of CT Common Stock.
4. Additional Covenants of the Stockholders. Until the valid termination of
the provisions of this Section 4 pursuant to Section 8, the Stockholders agree
as follows:
(a) At any meeting of stockholders of CT called to vote upon any REIT
Tax Matter submitted to a vote pursuant to Section 2.14 of the Venture
Agreement or at any adjournment thereof or in any other circumstances upon
which the Stockholders' vote, consent or other approval with respect to any
such REIT Tax Matter is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock they own or have voting control over
at such time in favor of such REIT Tax Matter.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholders' vote, consent or
other approval is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock owned by them or over which they have
voting control at such time
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against any amendment of CT's charter and amended and restated bylaws or
other proposal or transaction involving CT or any of its subsidiaries,
which amendment or other proposal or transaction would reasonably be
expected in any manner to impede, frustrate, prevent or nullify CT's
ability or obligation to consummate or effect any REIT Tax Matter.
5. Further Assurances. Each Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as General
REMI II may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Stockholder's Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholders contained in
Sections 3 and 4, any Stockholder who is an officer or director of CT, only in
his capacity as an officer or director of CT, may take any such action that is
in furtherance of the exercise of his duties as an officer or director under
Maryland law, and no such action in furtherance of the exercise of such duties
shall be deemed to be a breach or violation of the covenants of such Stockholder
contained in Sections 3 and 4 and the Stockholders shall not have any liability
hereunder for any such action taken in his capacity as an officer and director
of CT in furtherance of the exercise of such duties.
7. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that General REMI II may assign, in
its sole discretion, any or all of its rights and interests to Citigroup Inc. or
any of its direct or indirect wholly owned subsidiaries or other entities or to
Travelers Property Casualty Corp. or any of its direct or indirect wholly owned
subsidiaries or other entities. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of any
Stockholder that is an individual, the heirs, executors and administrators of
such Stockholder.
8. Termination. The rights and obligations contained in Section 3 shall
terminate and shall be of no further legal force and effect on the date on which
stockholders of CT shall have considered and voted upon the Warrant Issuance.
The rights and obligations contained in Section 4 shall terminate and shall be
of no further legal force and effect on the earlier of the date on which (i)
stockholders of CT shall have considered and voted upon any REIT Tax Matters
presented for a vote pursuant to Section 2.14 of the Venture Agreement, (ii) if
the Fund II Initial Closing shall not have occurred by no later than December
31, 2000 or any Extension Date, (a) the Unwind set forth in the Fund I Agreement
is commenced or (b) any dissolution or liquidation of Fund I in accordance with
its terms is completed, (iii) the Appraisal Procedures shall have commenced with
respect to the Fair Market Value of the CIG Parties' and their Affiliates' Board
Right Shares pursuant to Section 2.14 of the Venture
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Agreement, or (iv) upon the resignation of the CIG Parties Initial Board
Designees as set forth in Section 2.12(e) of the Venture Agreement if the CIG
Parties or the CT Parties shall have exercised their right to terminate the
Venture Agreement pursuant to Section 2.12(e) of the Venture Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or any New York state court,
this being in addition to any other remedy to which they are entitled at
law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed as follows:
If to General REMI II, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
205 Columbus Blvd., 9PB
Hartford, Connecticut 06183-2030
Attn: Duane Nelson, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
388 Greenwich Street, 36th Floor
New York, New York 10013
Attn: Mr. Michael Watson
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Real Estate Investment Number: 12833
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1900
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
If to the Stockholders, to:
c/o Capital Trust, Inc.
605 Third Avenue, 26th Floor
New York, New York 10016
With a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attn: Thomas E. Kruger, Esq.
or to such other address as such party may indicate by a notice delivered
to the other parties hereto.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
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(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited to, matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ Michael Watson
-------------------------------
Michael Watson
Vice President
JOHN R. KLOPP
/s/ John R. Klopp
----------------------------------
JRK INVESTMENT PARTNERSHIP LP
By: John R. Klopp, its general partner
/s/ John R. Klopp
-------------------------------
John R. Klopp
912194.10
