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AMENDED AND RESTATED COMMON SECURITIES GUARANTEE AGREEMENT
CT CONVERTIBLE TRUST I
Dated as of May 10, 2000
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936609.4
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION.........................2
SECTION 1.1. Definitions and Interpretation.........2
ARTICLE II GUARANTEE..............................................3
SECTION 2.1. Guarantee..............................3
SECTION 2.2. Waiver of Notice and Demand............4
SECTION 2.3. Obligations Not Affected...............4
SECTION 2.4. Rights of Holders......................5
SECTION 2.5. Guarantee of Payment...................5
SECTION 2.6. Subrogation............................5
SECTION 2.7. Independent Obligations................5
ARTICLE III LIMITATION OF TRANSACTIONS; SUBORDINATION..............6
SECTION 3.1. Limitation of Transactions.............6
SECTION 3.2. Subordination..........................6
ARTICLE IV TERMINATION............................................7
SECTION 4.1. Termination............................7
ARTICLE V MISCELLANEOUS..........................................7
SECTION 5.1. Successors and Assigns.................7
SECTION 5.2. Amendments.............................8
SECTION 5.3. Notices................................8
SECTION 5.4. Benefit................................9
SECTION 5.5. Governing Law..........................9
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PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE (AS DEFINED IN THE AMENDED
AND RESTATED DECLARATION), ANY CERTIFICATE EVIDENCING THIS AMENDED AND RESTATED
COMMON SECURITIES GUARANTEE SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING
FORM, UNLESS OTHERWISE AGREED BY THE REGULAR TRUSTEES (WITH WRITTEN NOTICE TO
THE INSTITUTIONAL TRUSTEE) PURSUANT TO SECTION 9.1(D) OF THE AMENDED AND
RESTATED DECLARATION:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE SHARES OF CLASS A COMMON STOCK
("COMMON STOCK") OF CAPITAL TRUST, INC. (THE "COMPANY") ISSUABLE UPON CONVERSION
OR EXCHANGE OF THE CONVERTIBLE AMOUNT OF THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE
CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF
THIS CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, THE TRANSFER AGENT FOR THE
SHARES OF COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR TRANSFER
AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE
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SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE CONVERTIBLE
PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR, IF THIS
CERTIFICATE EVIDENCES SHARES OF COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR CT CONVERTIBLE TRUST I ("THE TRUST") MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT). IF THIS CERTIFICATE DOES NOT EVIDENCE SHARES OF COMMON STOCK AND IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE FOR THE CONVERTIBLE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE
MAY BE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY
OR THE TRUST MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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AMENDED AND RESTATED COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Amended and Restated Common Securities
Guarantee"), dated as of May 10, 2000, is executed and delivered by Capital
Trust, Inc., a Maryland corporation (the "Guarantor") and successor to Capital
Trust, a California business trust for the benefit of the Holders (as defined
herein) from time to time of the Common Securities (as defined herein) of CT
Convertible Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Amended and Restated Declaration"), dated as of the date hereof, among the
trustees of the Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $4,650,000 in aggregate liquidation
amount of its variable step up convertible trust common securities (the "Common
Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Amended and Restated Common Securities Guarantee,
to pay to the Holders of the Common Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein; and
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Amended and Restated Preferred Securities
Guarantee") in substantially identical terms to this Amended and Restated Common
Securities Guarantee for the benefit of the holders of the Preferred Securities
(as defined herein), except that if an Event of Default (as defined in the
Amended and Restated Indenture), has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under the Amended
and Restated Common Securities Guarantee are subordinated to the rights of
holders of Preferred Securities to receive guarantee payments under the Amended
and Restated Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Amended and Restated Common
Securities Guarantee for the benefit of the Holders.
936609.4
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Amended and Restated Common Securities Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in this Amended and Restated Common
Securities Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Amended and Restated Declaration as at the
date of execution of this Amended and Restated Common Securities Guarantee have
the same meaning when used in this Amended and Restated Common Securities
Guarantee unless otherwise defined in this Amended and Restated Common
Securities Guarantee;
(c) a term defined anywhere in this Amended and Restated Common
Securities Guarantee has the same meaning throughout;
(d) all references to "the Amended and Restated Common Securities
Guarantee" or "this Amended and Restated Common Securities Guarantee" are to
this Amended and Restated Common Securities Guarantee as modified, supplemented
or amended from time to time;
(e) all references in this Amended and Restated Common Securities
Guarantee to Articles and Sections are to Articles and Sections of this Amended
and Restated Common Securities Guarantee, unless otherwise specified; and
(f) a reference to the singular includes the plural and vice versa.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Amended and Restated Declaration) that are required to be paid on such
Common Securities to the extent the Issuer shall have funds available therefor,
(ii) the redemption price (the "Redemption Price") or Adjusted Redemption Price,
specified in the Amended and Restated Indenture, as the case may be, and all
accrued and unpaid Distributions to the date of redemption, to the extent the
Issuer has funds available therefor, with respect to any Common Securities
called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the redemption of all of the Common Securities or the distribution of
Debentures to the Holders in exchange for Common Securities as provided in
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the Amended and Restated Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Common
Securities to the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders of Common Securities then outstanding upon
the liquidation of the Issuer (in either case, the "Liquidation Distribution").
If an Event of Default (as defined in the Amended and Restated Indenture) has
occurred and is continuing, the rights of holders of the Common Securities to
receive payments under the Amended and Restated Common Securities Guarantee
Agreement are subordinated to the rights of Holders of Preferred Securities to
receive Guarantee Payments (as defined in the Amended and Restated Preferred
Securities Guarantee Agreement).
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Majority in liquidation amount of the Common Securities" means,
except as provided in the terms of the Common Securities, or except as provided
by the Trust Indenture Act, a vote by Holder(s), voting separately as a class,
of more than 50% of the liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Common Securities.
"Preferred Securities" means the securities representing preferred
undivided beneficial interests in the assets of the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
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SECTION 2.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Amended and
Restated Common Securities Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right or remedy to require a
proceeding first against the Issuer or any other Person before proceeding
directly against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 2.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Amended and Restated Common Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price or the Adjusted Redemption Price,
as the case may be, Liquidation Distribution or any other sums payable under the
terms of the Common Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of Distributions,
Redemption Price or the Adjusted Redemption Price, as the case may be,
Liquidation Distribution or other sum payable that results from the extension of
any interest payment period on the Debentures permitted by the Amended and
Restated Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4. Rights of Holders.
Any Holder of Common Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Amended and
Restated Common Securities Guarantee, without first instituting a legal
proceeding against the Issuer or any other person or entity. The Guarantor
waives any right or remedy to require that any action be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 2.5. Guarantee of Payment.
This Amended and Restated Common Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 2.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Amended and Restated Common Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Amended and Restated
Common Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Amended and Restated Common Securities Guarantee.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 2.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Amended and
Restated Common Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.3 hereof.
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ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions.
So long as any Common Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on the Debentures
by extending the interest payment period and such extension period, or any
extension thereof, shall be continuing, (ii) the Guarantor shall be in default
with respect to its Guarantee Payments or other obligations under this Amended
and Restated Common Securities Guarantee or (iii) there shall have occurred and
be continuing an Event of Default under the Amended and Restated Declaration or
any event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default under the Amended and Restated Declaration, then
the Guarantor shall not (a) declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, or make any liquidation
payment with respect to, any of its Capital Stock or (b) make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities of the Guarantor that rank pari passu with or junior in interest
to the Debentures of any series or make any guarantee payments with respect to
any guarantee by the Guarantor of the debt securities of any subsidiary of the
Guarantor if such guarantee ranks pari passu with or junior in interest to the
Debentures of any series (other than (i) as a result of a reclassification of
the Capital Stock of the Guarantor or the exchange or conversion of one class or
series of the Capital Stock of the Guarantor for another class or series of the
Capital Stock of the Guarantor, (ii) the purchase of fractional interests in
shares of the Capital Stock of the Guarantor pursuant to the conversion or
exchange provisions of such Capital Stock or the security being converted into
or exchanged for such Capital Stock, (iii) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan effecting a
"poison pill," or the issuance of Capital Stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (v)
payments under this Amended and Restated Common Securities Guarantee and the
Convertible Preferred Securities Guarantee, (vi) purchases of shares of Common
Stock related to the issuance of Common Stock or rights under any of the
Guarantor's benefit plans for its directors, officers or employees and (vii)
obligations under any dividend reinvestment and stock purchase plans). For
avoidance of doubt, the provisions of this Section shall not impair the ability
of the Guarantor to subdivide its Common Stock into a greater number of shares.
SECTION 3.2. Subordination.
This Amended and Restated Common Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor (except any
liabilities that may be pari passu expressly by their terms), (ii) pari passu
with the most senior preferred or preference shares now or
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hereafter issued by the Guarantor and with any guaranty now or hereafter entered
into by the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor and (iii) senior to the Guarantor's Capital Stock.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.
This Amended and Restated Common Securities Guarantee shall terminate
upon (i) full payment of the Redemption Price and accrued and unpaid
distributions with respect to all Common Securities, (ii) the distribution of
the Debentures to the Holders of the Common Securities, or (iii) full payment of
the amounts payable in accordance with the Amended and Restated Declaration upon
liquidation of the Issuer. This Amended and Restated Common Securities Guarantee
shall terminate completely upon full payment of the amounts payable in
accordance with the Amended and Restated Declaration. Notwithstanding the
foregoing, this Amended and Restated Common Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sum paid under the Common Securities or under
this Amended and Restated Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns.
All guarantees and agreements contained in this Amended and Restated
Common Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Common Securities then outstanding. Except in connection with
any merger or consolidation of the Guarantor with or into another entity
permitted by Section 9.1 of the Amended and Restated Indenture or any sale,
transfer or lease of the Guarantor's assets to another entity permitted by
Section 9.1 of the Amended and Restated Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Amended and Restated Common
Securities Guarantee without the prior approval of the holders of at least a
Majority in liquidation amount of the Common Securities then outstanding.
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SECTION 5.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Amended and Restated Common Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Common Securities then outstanding.
The provisions of Section 12.2 of the Amended and Restated Declaration with
respect to meetings of Holders apply to the giving of such approval.
SECTION 5.3. Notices.
All notices provided for in this Amended and Restated Common Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Regular Trustees at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Holders of the Common Securities):
CT Convertible Trust I
c/o Capital Trust, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Capital Trust, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
(c) If given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed
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address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 5.4. Benefit.
This Amended and Restated Common Securities Guarantee is solely for the
benefit of the Holders of the Common Securities and is not separately
transferable from the Common Securities.
SECTION 5.5. Governing Law.
THIS AMENDED AND RESTATED COMMON SECURITIES GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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THIS AMENDED AND RESTATED COMMON SECURITIES GUARANTEE is executed as of
the day and year first above written.
CAPITAL TRUST, INC. as Guarantor
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
936609.4
