Exhibit 4
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12% Convertible Redeemable Notes due April 15, 2007
of
Veqtor Finance Company, LLC
PURCHASE AGREEMENT
Dated as of June 16, 1997
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PURCH8.DOC
12% CONVERTIBLE REDEEMABLE NOTE PURCHASE AGREEMENT ("Agreement"),
dated as of June 16, 1997, by and between VEQTOR FINANCE COMPANY, LLC, a
Delaware limited liability company (the "Company"), and the investors listed on
the signature pages hereto (each an "Investor" and, collectively, the
"Investors").
Preliminary Statement
The Company desires to sell, and the Investors desire to purchase at
the Closing (as defined below), pursuant to the terms and conditions set forth
in this Agreement, an aggregate of $50,000,000 of the Company's 12% Convertible
Redeemable Notes (each a "Note", and, collectively, the "Notes").
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, each Investor agrees with the Company as follows:
ARTICLE 1
DEFINITIONS
"Affiliate" means, with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person.
"Agreement" means this 12% Convertible Redeemable Note Purchase
Agreement and the Exhibits attached hereto, as amended, modified, supplemented
or restated from time to time.
"Approval Date" has the meaning set forth in Section 2.4(a)(ix).
"Business Day" means a day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York, New York are authorized or
obligated by law or executive order to close.
"Capital Trust" means California Real Estate Investment Trust, a
business trust organized under the laws of the State of California and
established under a Declaration of Trust dated September 15, 1966, as amended,
modified, supplemented or restated from time to time, and any successors
thereto, whose name is intended to be changed to "Capital Trust."
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has the meaning set forth in Section 2.3.
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"Common Units" shall have the meaning given that term in the Company
Agreement.
"Company" means Veqtor Finance Company, LLC, a Delaware limited
liability company.
"Company Agreement" means the Limited Liability Company Agreement of
the Company dated as of June 16, 1997, as amended, modified, supplemented or
restated from time to time.
"control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indebtedness" means with respect to any Person, without duplication,
any liability of such Person (i) for borrowed money, (ii) evidenced by bonds,
debentures, notes (including, without limitation, the Notes) or other similar
instruments, (iii) constituting capitalized lease obligations, (iv) incurred or
assumed as the deferred purchase price of property, or pursuant to conditional
sale obligations and title retention agreements (but excluding trade accounts
payable arising in the ordinary course of business), and (v) for Indebtedness of
any other Person of the type referred to in clauses (i) through (iv) which are
secured by any Lien on any property or asset of such first referred to Person.
"Interest" means a limited liability company interest in the Company,
including the right of the holder thereof to any and all benefits to which a
Member may be entitled as provided in the Company Agreement, together with the
obligations of a Member to comply with all of the terms and provisions of the
Company Agreement.
"Investor" and "Investors" have the meanings set forth in the preamble
to this Agreement.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind, including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest.
"Managing Member" means CalREIT Investors Limited Partnership, an
Illinois limited partnership ("CRIL"), or V2 Holdings LLC, a Delaware limited
liability company ("V2H"), each in their capacity as Members of the Company
designated as managers.
"Member" means any Person that holds an Interest in the Company, is
admitted as a member of the Company pursuant to the provisions of the Company
Agreement, and named as a member of the Company on Schedule A to the Company
Agreement and includes any Person admitted as an Additional Member or a
Substitute Member (as
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such terms are defined in the Company Agreement) pursuant to the provisions of
the Company Agreement, in such Person's capacity as a member of the Company.
"Note" and "Notes" have the meanings set forth in the Preliminary
Statement of this Agreement.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a joint venture, an association, a joint-stock company, a
trust, a business trust, a government or any agency or any political
subdivision, any unincorporated organization or any other entity.
"Preferred Units" shall have the meaning given that term in the
Company Agreement.
"Related Agreements" has the meaning set forth in Section 2.4(iv).
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE 2
PURCHASE AND SALE OF NOTES
Section 2.1 Authorization of Note Issuance. On or before the Closing,
the Company will authorize the issuance and delivery of the Notes in the
aggregate principal amount of $50,000,000, to be dated the date of issuance
thereof and to be issued pursuant to this Agreement. The Notes shall be
convertible into Preferred Units. The terms of such conversion and additional
rights, restrictions and privileges are described in the Notes, which shall be
in the form of the Note attached hereto as Exhibit A.
Section 2.2 Purchase and Sale of Notes. On the terms and subject to the
conditions of this Agreement, and in reliance upon the representations and
warranties contained herein, at the Closing the Company shall issue and sell or
cause to be sold to each Investor, and each Investor shall purchase from the
Company, the principal amount of Notes set forth opposite such Investor's name
on the signature pages hereto for a purchase price equal to such principal
amount of Notes.
Section 2.3 Closing and Closing Date. Subject to Section 2.4, the
closing of the purchase and sale of the Notes (the "Closing") will take place on
the first Business Day following the Approval Date, or such other date as the
parties hereto may agree (the date of such closing, the "Closing Date"). At the
Closing, the Company shall deliver to each Investor, free and clear of any lien,
charge, encumbrance or expense (including, without limitation, any tax or other
fee payable in connection with such issuance), a Note in the aggregate principal
amount set forth opposite such Investor's name on the signature pages hereto,
registered in the name of each such Investor.
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Section 2.4 Conditions to Closing.
(a) The obligation of each Investor to close the transactions
contemplated hereunder is subject to the satisfaction on or prior to the Closing
Date of the following conditions:
(i) No order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition (A)
preventing the consummation of the Closing of the transactions contemplated
by this Agreement or (B) which is reasonably likely to materially adversely
affect the business of the Company or the transactions contemplated by this
Agreement, shall be in effect.
(ii) Each of the terms, covenants and conditions of this Agreement to
be complied with and performed by the Company on or prior to the Closing
Date shall have been duly complied with and performed in all material
respects, or the Investor shall have waived such compliance or performance,
and all documents to be delivered or actions to be taken by the Company
pursuant to Section 2.5 shall have been delivered or performed.
(iii) Each of the representations and warranties made by the Company
herein shall be true and correct in all material respects as of the date
hereof and as of the Closing Date (unless such representation and warranty
is made as of a specific date and then shall be true and correct in all
material respects as of such date) with the same force and effect as though
such representations and warranties had been made as of the Closing Date.
(iv) The Managing Members of the Company shall have approved the
transactions contemplated by this Agreement, in each case as required by
applicable law and in accordance with the Company Agreement.
(v) The form and substance of all instruments and documents required
to be delivered pursuant to this Agreement by the Company shall be
reasonably satisfactory in all respects to Investors.
(vi) At or prior to the Closing, the various parties named therein
shall have executed and delivered the agreements and other documents set
forth on Exhibit B attached hereto (collectively, the "Related
Agreements"), all of which shall be in full force and effect and none of
which shall have been amended or breached, and the transactions
contemplated by the Related Agreements to be consummated at or prior to the
Closing shall have been consummated.
(vii) At the Closing, the Company shall sell and issue to the
Investors Notes in the aggregate principal amount of Fifty Million Dollars
($50,000,000).
(viii) At the Closing, CRIL and V2H shall have contributed to the
capital of the Company Five Million Dollars ($5,000,000) in the aggregate,
in exchange for One Million (1,000,000) Common Units in the aggregate.
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(ix) the holders of the outstanding common shares of beneficial
interest of Capital Trust shall have duly approved the form of Amended and
Restated Declaration of Trust attached at Annex C to the Capital Trust
Proxy Statement (as defined in the Company Agreement) and such Amended and
Restated Declaration of Trust shall have become effective in accordance
with the laws of the State of California (such effective date being the
"Approval Date").
(b) The obligation of the Company to close the transactions
contemplated hereunder is subject to the satisfaction on or prior to the
Closing Date of the following conditions:
(i) No order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition (A)
preventing the consummation of the Closing of the transactions contemplated
by this Agreement or (B) which is reasonably likely to materially adversely
affect the business of the Company or the transactions contemplated by this
Agreement, shall be in effect.
(ii) Each of the terms, covenants and conditions of this Agreement to
be complied with and performed by Investors on or prior to the Closing Date
shall have been duly complied with and performed in all material respects,
or the Company shall have waived such compliance or performance, and all
documents to be delivered or actions to be taken by Investors pursuant to
Section 2.5 shall have been delivered or performed.
(iii) Each of the representations and warranties made by the Investors
herein shall be true and correct in all material respects as of the date
hereof and as of the Closing Date (unless such representation and warranty
is made as of a specific date and then shall be true and correct in all
material respects as of such date) with the same force and effect as though
such representations and warranties had been made as of the Closing Date.
(iv) The Managing Members of the Company shall have approved the
transactions contemplated by this Agreement, in each case as required by
applicable law and in accordance with the Company Agreement.
(v) The form and substance of all instruments and documents required
to be delivered pursuant to this Agreement by Investors shall be reasonably
satisfactory in all respects to the Company.
(vi) At or prior to the Closing, the various parties named therein
shall have executed and delivered the Related Agreements, all of which
shall be in full force and effect and none of which shall have been amended
or breached, and the transactions contemplated by the Related Agreements to
be consummated at or prior to the Closing shall have been consummated.
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(vii) At the Closing, the Notes in the aggregate principal amount of
Fifty Million Dollars ($50,000,000) shall be purchased by the Investors.
Section 2.5 Additional Closing Deliveries.
(a) On or prior to the Closing Date, the Company shall deliver or
cause to be delivered to each Investor the documents listed below, in form and
substance reasonably satisfactory to Investors:
(i) the Certificate of Formation of the Company, certified as of the
Closing Date by a Managing Member of the Company;
(ii) a good standing certificate from the State of Delaware, dated as
of a recent date prior to the Closing Date and certified by the Secretary
of State or other authorized governmental entity;
(iii) a copy of the Company Agreement, certified as of the Closing
Date by a Managing Member of the Company;
(iv) resolutions of the Managing Members of the Company approving and
authorizing this Agreement and the transactions contemplated hereby,
including the approval of the issuance and delivery of the Notes, certified
as of the Closing Date by a Managing Member of the Company as being in full
force and effect without modification or amendment;
(v) a certificate of the Company certifying that the conditions set
forth in Sections 2.4(a)(ii) and (iii) have been satisfied;
(vi) the opinion of Battle Xxxxxx LLP, special counsel to the Company,
substantially in the form of Exhibit C hereto, and the opinion of Xxxxxxxxx
& Xxxxxxxxxxx, P.C., special counsel to the Company, in form satisfactory
to the Investors, that the transactions contemplated by that certain Class
A 9.5% Cumulative Convertible Preferred Share Purchase Agreement, by and
between Capital Trust and the Company referred to in Exhibit B hereto, does
not require compliance with the reporting obligations of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act; and
(vii) such other documents as may be reasonably requested by Investor
prior to the Closing Date in connection with the Closing of the
transactions contemplated by this Agreement.
(b) On or prior to the Closing Date, each Investor shall deliver or
cause to be delivered to the Company, in form and substance satisfactory to the
Company, such documents as may be reasonably requested by the Company prior to
the Closing Date in connection with the Closing of the transactions contemplated
by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to the Investors as follows:
Section 3.1 Existence and Authority.
(a) The Company is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
Company has full power and authority to enter into this Agreement and to perform
its obligations hereunder. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company actions on the part of the Company, and this Agreement constitutes the
valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equity principles.
(b) The Company has full power to carry on the business in which it
proposes to engage.
Section 3.2 Capitalization. The authorized Interests of the Company
consist of Common Units and Preferred Units. Immediately following the Closing,
there shall be issued and outstanding 1,000,000 Common Units, 500,000 of which
shall be held beneficially and of record by CRIL and 500,000 of which shall be
held beneficially and of record by V2H. Upon their issuance, all of the Common
Units shall be duly authorized, validly issued, fully paid and nonassessable.
There are no preemptive rights with respect to the issuance of Common Units.
There are no outstanding or authorized options, warrants, rights, contracts,
rights to subscribe, conversion rights or other agreements or commitments to
which the Company is a party or which are binding upon the Company providing for
the issuance or acquisition of any of the Company's Common Units or Preferred
Units.
The Company does not, directly or indirectly, own or control or have
any capital, equity, partnership, participation or other interest in any Person.
Section 3.3 No Consents, Approvals, Violations or Breaches. Neither the
Execution and delivery by the Company of this Agreement, nor the consummation by
the Company of the transactions contemplated hereby, will (i) require any
consent, approval, authorization or permit of, or filing, registration or
qualification with or notification to, any governmental or regulatory authority
under any law of the United States, any state or any political subdivision
thereof, applicable to the Company other than any action required to be taken by
Investor, (ii) violate any provision of the
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certificate of formation of the Company or the Company Agreement, (iii) assuming
no violation on the part of any Investor, violate any statute, law, ordinance,
rule or regulation of the United States, any state or any political subdivision
thereof, or any judgment, order, writ, decree or injunction applicable to the
Company, or (iv) assuming no violation on the part of any Investor, violate,
conflict with, or result in a material breach of any provisions of, or
constitute a material default (or any event which, with or without due notice or
lapse of time, or both, would constitute a material default) under, or result in
the termination of, or accelerate the performance required by, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which the Company
is a party. The Company is not (x) in violation of, or default under, any terms
or provisions of its constituent documents or (y) to the Company's knowledge, in
violation of, or default under, any lien, mortgage, lease, indenture, agreement,
instrument, order, judgment, decree or law to which it is a party or by which it
is bound or subject.
Section 3.4 Reservation, Etc. As of the Closing Date, sufficient
authorized but unissued Preferred Units will have been reserved by appropriate
action of the Company in connection with the prospective conversion of the
Notes. The issuance of the Notes and the Preferred Units into which the Notes
are convertible does not require any further authorizing action by the Managing
Members of the Company, is not subject to preemptive rights of any present
Member of the Company, and does not conflict with any provision of any agreement
to which the Company is a party.
Section 3.5 Outstanding Debt. The Company does not have, and on the
Closing Date will not have, any outstanding Indebtedness except for the Notes.
Section 3.6 Brokers. Neither the Company, the Managing
Members nor any of their respective Affiliates have engaged any broker in
connection with the transactions contemplated by this Agreement, and no Person
acting on behalf of the Company, the Managing Members or their respective
Affiliates is or will be entitled to any brokerage fee, commission, finder's fee
or financial advisory fee, directly or indirectly, from the Company in
connection with the transactions contemplated by this Agreement.
Section 3.7 Full Disclosure. The representations and warranties of the
Company in this Agreement are not false or misleading in any material respect
nor do they omit to state a material fact necessary in order to make the
representations and warranties contained herein not misleading in any material
respect.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTORS
Each Investor hereby severally represents and warrants to the Company
as to itself as follows:
Section 4.1 Existence and Authority of Investor. Investor has been duly
formed and is validly existing and in good standing under the laws of the State
of its formation and has full corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement by Investor and the consummation by Investor of
the transactions contemplated hereby have been duly authorized by all necessary
corporate proceedings on the part of Investor, and this Agreement constitutes
the valid and legally binding obligation of Investor, enforceable against
Investor in accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equity principles.
Section 4.2 No Consents, Approvals, Violations or Breaches. Neither the
execution and delivery of this Agreement by Investor, nor the consummation by
Investor of the transactions contemplated hereby, will (i) require any consent,
approval, authorization or permit of, or filing, registration or qualification
with or notification to, any governmental or regulatory authority under any law
of the United States, any state or any political subdivision thereof applicable
to Investor, other than any action required to be taken by the Company, (ii)
violate any provision of the organizational or operating documents of Investor,
(iii) assuming no violations on the part of the Company, violate any statute,
law, ordinance, rule or regulation of the United States, any state or any
political subdivision thereof, or any judgment, order, writ, decree or
injunction applicable to Investor, the violation of which would have a material
adverse effect upon Investor or the Company, or (iv) assuming no violation on
the part of the Company, violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or any event which, with or without due
notice or lapse of time, or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which
Investor is a party or by which Investor or any of its properties or assets may
be bound which would have a material adverse effect upon Investor or the
Company.
Section 4.3 Investment Intent. The Notes and, upon conversion, the
Preferred Units, will be held by Investor for its own account for investment and
not with a view to, or for sale in connection with, any distribution thereof
within the meaning of the Securities Act, nor with any present intention of
distributing or selling the same. Investor acknowledges that the certificates
evidencing the Notes and the Preferred Units to be issued upon conversion of the
Notes, contain or will contain customary legends the Company may apply, and that
neither the Notes nor the Preferred Units underlying the Notes, has been
registered under the Securities Act or any applicable state securities
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laws, and that the Notes and the Preferred Units may not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act or any applicable state securities laws,
except pursuant to an applicable exemption. Investor understands that the Notes
and the Preferred Units have not been, and will not be, registered under the
Securities Act by reason of an exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of Investor's representations as
expressed herein. Investor is not a partnership formed solely for the purpose of
investing in the Notes or the Preferred Units, or if Investor is a partnership
formed solely for the purpose of investing in the Notes or such Preferred Units,
each partner of such partnership is an accredited investor as defined in Rule
501 of Regulation D under the Securities Act.
Section 4.4 Accredited Investor. Investor is an "accredited investor"
as defined in Rule 501 under the Securities Act.
Section 4.5 Rule 144. Investor acknowledges that the Notes and
Preferred Units must be held indefinitely unless subsequently registered under
the Security Act or an exemption from such registration is available. Investor
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, in
most circumstances (i) the existence of a public market for the shares, (ii) the
availability of certain current public information about the Company, (iii) the
resale occurring not less than one (1) year after a party has purchased and
fully paid for the shares, (iv) the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" (as provided by
Rule 144(f)), and (v) the number of shares being sold during any three (3) month
period not exceeding specified limitations.
Section 4.6 No Public Market. Investor understands that no public
market now exists for any of the securities issued by the Company and that there
is no assurance that a public market will ever exist for any of the Company's
securities.
Section 4.7 Access to Data. Investor has been offered the opportunity
to discuss the Company's business, management, and financial affairs with the
Company's and Capital Trust's management. Investor has also been offered the
opportunity to ask questions of the Managing Members and officers of the Company
and Capital Trust's respectively, and, if it did so, its questions were answered
to its satisfaction.
Section 4.8 Knowledge and Experience. Investor has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of purchasing the Notes and, upon conversion, the Preferred
Units.
Section 4.9 Brokers. Neither Investor nor any of its Affiliates has
engaged any broker in connection with the transactions contemplated by this
Agreement or the Related Agreements and no Person acting on behalf of Investor
or any of its Affiliates is or will be entitled to any brokerage fee,
commission, finder's fee or financial advisory
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fee, directly or indirectly, from Investor or any of its Affiliates in
connection with the transactions contemplated by this Agreement or the Related
Agreements.
ARTICLE 5
COVENANTS OF THE COMPANY
During the period from the date hereof to the Closing Date, the
Company covenants and agrees as follows:
Section 5.1 Operations in Ordinary Course. The Company covenants and
agrees that the Company shall not conduct its business and operations in such a
manner as to impair its ability to consummate the transactions contemplated
hereunder, nor will it engage in any transaction, take any action or omit to
take any action, which could reasonably be expected to impair its ability to
consummate the transactions contemplated hereunder.
Section 5.2 Conditions to Closing. The Company shall use its reasonable
best efforts to satisfy, as expeditiously as reasonably possible, all of the
conditions to the obligations of the Company hereunder within the Company's
control, including obtaining all consents, approvals and agreements which are
required in order to consummate the transactions contemplated hereby.
ARTICLE 6
COVENANTS OF INVESTOR
Section 6.1 Conditions to Closing. Investor shall use its reasonable
best efforts to satisfy, as expeditiously as reasonably possible, all of the
conditions to the obligations of Investor hereunder within Investor's control,
including obtaining all consents, approvals and agreements which are required in
order to consummate the transactions contemplated hereby.
ARTICLE 7
FURTHER AGREEMENTS
Section 7.1 Further Assurances. Each party to this Agreement shall, at
the request of another party to this Agreement, at any time and from time to
time following the Closing hereunder, execute and deliver or cause to be
executed and delivered all such further instruments and take or cause to be
taken all such further action as may be reasonably necessary or appropriate in
order more effectively to sell, assign, transfer and convey to Investor the
Notes and, upon conversion thereof, the Preferred Units, or otherwise to confirm
or carry out the provisions of this Agreement and/or the Related Agreements to
which such person is a party.
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Section 7.2 Investor's Access to Records. The Company shall afford
Investor and its authorized representatives access during normal business hours
to their respective properties, books and records, in order that they may have
the opportunity to make such investigations as they shall desire to make of the
affairs of the Company. The Company shall cause its Members, employees,
investment bankers, counsel, accountants and other authorized representatives to
furnish such additional financial and operating data and other information as
Investor and such other persons shall from time to time reasonably request.
Section 7.3 Home Office Payment. The Company agrees that the Company
will make any payments to Investor on the Notes or, upon conversion, the
Preferred Units, by wire transfer in immediately available funds at the location
of Investor's account, on the date of payment to such account as specified by
Investor in writing to the Company.
Section 7.4 Confidentiality. Except to the extent disclosure is
required by law, or in response to any governmental authority, or in connection
with any litigation relating to an alleged breach of this Agreement, each party
shall maintain the confidentiality of all information obtained from the other
party hereto other than information that is otherwise publicly available and
shall use such information only for purposes reasonably related to this
Agreement and the transactions contemplated hereby.
Section 7.5 Expenses. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated (unless the failure to so
consummate such transactions arises as a result of a breach of this Agreement by
an Investor), to pay, and save each Investor harmless against liability for the
payment of, all out-of-pocket expenses incurred by the Investors in connection
with (a) the negotiation, documentation and closing of such transactions,
including all document production and duplication charges and the fees and
expenses of any special counsel engaged by the Investors in connection with this
Agreement and the transactions contemplated hereby (up to $75,000 in the
aggregate for all Investors), and (b) the reasonable out-of-pocket costs and
expenses, including reasonable attorneys' fees, incurred by any Investor in
enforcing (or determining whether or how to enforce) any rights under this
Agreement, the Notes or the Company Agreement (including, without limitation,
reasonable costs and expenses incurred in any bankruptcy case involving the
Company) or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement or the
transactions contemplated hereby. The obligations of the Company under this
Section 7.5 shall survive the transfer of any Note or portion thereof or
interest therein by any Investor and the payment or conversion of any Note.
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ARTICLE 8
MISCELLANEOUS
Section 8.1 Survival of Representations, Warranties and Covenants
Notwithstanding any investigation made by or on behalf of Investor or the
Company, the representations and warranties of the Investor and the Company
contained in this Agreement shall be continuing representations and warranties
and shall survive the Closing for a period of one year thereafter. The covenants
and other agreements of the Company and Investor contained in this Agreement
shall be continuing covenants and agreements and shall survive the Closing
indefinitely.
Section 8.2 Indemnification.
(a) From and after the Closing Date, the Company shall hold the
Investors harmless from and against, and reimburse the Investors for any damages
resulting from, any and all loss, liability, damage or expense (including,
without limitation, interest, penalties and reasonable attorneys' fees and
disbursements) resulting to the Investors and based upon, arising out of or
otherwise in respect of any breach of any representation, warranty, covenant or
agreement of the Company contained in this Agreement.
(b) From and after the Closing Date, each Investor shall hold the
Company harmless from and against, and reimburse the Company for any damages
resulting from, any and all loss, liability, damage or expense (including,
without limitation, interest, penalties and reasonable attorneys' fees and
disbursements) resulting to the Company and based upon, arising out of or
otherwise in respect of any breach of any representation, warranty, covenant or
agreement of such Investor contained in this Agreement.
(c) Notwithstanding the foregoing provisions of this Section 8.2, no
Investor shall be entitled to recover under Section 8.2(a) hereof, and the
Company shall not be entitled to recover under Section 8.2(b) hereof, unless a
claim has been asserted by such Investor or the Company (as the case may be) by
written notice, specifying the alleged breach of representation, warranty,
covenant or agreement in reasonable detail, delivered to the Company or Investor
(as the case may be) on or prior to expiration of the survival period for such
claim as set forth in Section 8.1
Section 8.3 Assignment. This Agreement and all covenants and
agreements by or on behalf of the parties hereto which are contained herein
shall bind and inure to the benefit of the respective successors and assigns of
the parties hereto, including without limitation all subsequent holders of
Notes, whether so expressed or not.
Section 8.4 Notices. Any notices or other communications required or
permitted hereunder shall be sufficient if in writing and delivered by hand or
sent by telecopy, or sent, postage prepaid, by registered, certified or
express-mail, or by recognized overnight air courier service and shall be deemed
given when so delivered by hand or
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telecopied, or if mailed or sent by overnight courier service, on the fifth
(5) Business Day after mailing (one Business Day in the case of express
mail or overnight courier service) to the parties at the following addresses:
If to the Company to:
Veqtor Finance Company, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Equity Group Investments, Inc.
Two Xxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
and:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and:
Battle Xxxxxx XXX
Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to an Investor to the address set forth on such Investor's
signature page hereto, or to such other address as the addressee may have
specified in a notice duly given to the sender as provided herein.
Section 8.5 Entire AgreementSection Entire Agreement. This Agreement,
including the Exhibits hereto, constitutes the entire understanding of the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings, whether oral or written. No
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amendment or modification of the terms of this Agreement shall be
binding or effective unless expressed in writing and signed by each party.
Section 8.6 No Waiver. The waiver by any party of the breach of any of
the terms and conditions of, or any right under, this Agreement shall not be
deemed to constitute the waiver of any other breach of the same or any other
term or condition or of any similar right. No such waiver shall be binding or
effective unless expressed in writing and signed by the party giving such
waiver.
Section 8.7 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not in any way be impaired
or affected.
Section 8.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements executed and to be fully performed in such State, without giving
effect to its choice of law provisions.
Section 8.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
Section 8.10 Construction. The Article and Section headings contained
in this Agreement are inserted for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
VEQTOR FINANCE COMPANY, LLC
By: CalREIT Investors Limited Partnership,
its Managing Member
By: Xxxx General Partnership, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
____________________________________
Xxxxxx X. Xxxxxxxxxxx, Vice President
By: V2 Holdings LLC, its Managing Member
By: /s/ Xxxx X. Xxxxx
_____________________________________
Xxxx X. Xxxxx
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INVESTOR:
BankAmerica Investment Corporation
By: /s/ C. Xxxxxxx Xxxxxxx
______________________________________________
Name:
Title:
Address: ____________________________________
____________________________________
____________________________________
Attention:
Telecopy:
Phone Number:
Federal Tax I.D. Number: ____________________
Principal Amount of Notes to be Purchased: $5,000,000
INVESTOR:
BankBoston Investments, Inc.
By: /s/ Xxxx Xxxxxxx Xxxxxx
______________________________________________
Name:
Title:
Address: ____________________________________
____________________________________
____________________________________
Attention:
Telecopy:
Phone Number:
Federal Tax I.D. Number: ____________________
Principal Amount of Notes to be Purchased: $15,000,000
INVESTOR:
First Chicago Capital Corporation
By: /s/ Xxxxxx X. Xxxxxx
______________________________________________
Name:
Title:
Address: ____________________________________
____________________________________
____________________________________
Attention:
Telecopy:
Phone Number:
Federal Tax I.D. Number: ____________________
Principal Amount of Notes to be Purchased: $15,000,000
INVESTOR:
Xxxxx Fargo & Company
By: /s/ Xxxx X. Xxxxx
______________________________________________
Name:
Title:
Address: ____________________________________
____________________________________
____________________________________
Attention:
Telecopy:
Phone Number:
Federal Tax I.D. Number: ____________________
Principal Amount of Notes to be Purchased: $15,000,000
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EXHIBIT A
FORM OF NOTE
[See Attached]
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EXHIBIT B
RELATED AGREEMENTS
1. The Company Agreement.
2. The Class A 9.5% Cumulative Convertible Preferred Share Purchase
Agreement, by and between Capital Trust and the Company, in the form
attached as Annex A to the Capital Trust Proxy Statement.
3. Common Stock Purchase Agreement, by and between CalREIT Investors
Limited Partnership and the Company, to be dated as of the Approval Date.
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