EXHIBIT L
Fund II Warrant Agreement
The warrants represented by this certificate and the securities issuable upon
exercise thereof have not been registered under the Securities Act of 1933 or
the securities laws of any state. Neither such warrants nor such securities may
be sold, pledged, hypothecated or otherwise transferred without such
registration, except upon delivery to the Company of such evidence as may be
satisfactory to counsel for the Company to the effect that any such transfer
shall not be in violation of the Securities Act of 1933 or applicable state
securities laws or any rule or regulation promulgated thereunder.
CAPITAL TRUST, INC.
Fund II Purchase Warrant for Class A Common Stock
FOR VALUE RECEIVED, Capital Trust, Inc., a Maryland
corporation (the "Company"), hereby grants, pursuant hereto (this "Warrant"), to
Travelers General Real Estate Mezzanine Investments II, LLC, a Delaware limited
liability company, or its permitted assigns, the right to purchase from the
Company, at any time or from time to time commencing on the date hereof and
prior to 5:00 p.m., Eastern Time, on March 8, 2005, up to three million, fifteen
thousand and six hundred (3,015,600) (subject to adjustment as provided herein)
fully paid and non-assessable shares of class A common stock, par value $.01 per
share, of the Company for five dollars ($5.00) per share (subject to adjustment
as provided herein) for an aggregate purchase price (assuming full exercise) of
fifteen million and seventy-eight thousand dollars ($15,078,000) (not subject to
adjustment).
Hereinafter, (i) said class A common stock, par value $.01 per
share, of the Company, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the "Warrant Shares," (iii) the
aggregate purchase price payable for the Warrant Shares purchasable hereunder is
referred to as the "Aggregate Exercise Price," (iv) the price payable for each
of the Warrant Shares is referred to as the "Per-Share Exercise Price," (v) this
Warrant, and all warrants hereafter issued in exchange for, in substitution for
or upon transfer of this Warrant are referred to as the "Warrants" and (vi) the
holder of this Warrant is referred to as the "Holder." Definitions of other
capitalized terms used herein are set forth in Section 15 hereof.
The Aggregate Exercise Price is not subject to adjustment.
1. Exercise of Warrant.
(a) Cash Exercise. This Warrant may be exercised in whole at any
time, or in part from time to time, commencing on the date hereof and prior to
5:00 p.m., Eastern Time, on March 8, 2005 or March 8, 2008 if the period during
which this Warrant may be exercised is extended pursuant to Section 4 (the
"Exercise Period") by the Holder by the surrender of this Warrant (with the
subscription form at the end hereof duly executed) to the Company at the address
set forth in Section 11 hereof, together with proper payment of the Aggregate
Exercise Price, or the proportionate part thereof if this Warrant is exercised
in part, with payment for the Warrant Shares made by wire transfer of
immediately available funds or certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, it must be exercised
for a number of whole shares of Common Stock.
(b) Cashless Exercise. At any time during the Exercise Period, the
Holder may, at its option, exchange this Warrant, in whole or in part (a
"Warrant Exchange"), into the number of Warrant Shares determined in accordance
with this subsection, by surrendering this Warrant to the Company at the address
set forth in Section 11 hereof, accompanied by a notice stating such Holder's
intent to effect such exchange ("Notice of Exchange"), the number of Warrant
Shares corresponding to the portion of the Warrant to be exchanged and the date
on which the Holder requests that such Warrant Exchange occur (the "Exchange
Date"). In connection with any Warrant Exchange, this Warrant shall represent
the right to subscribe for and acquire the number of Warrant Shares (rounded to
the next highest integer) equal to (i) the number of Warrant Shares specified by
the Holder in its Notice of Exchange (the "Total Number") less (ii) the number
of Warrant Shares equal to the quotient obtained by dividing (A) the product of
the Total Number and the Per-Share Exercise Price then in effect by (B) the
current market price (determined as provided in subsection (e) of Section 3) per
share of Common Stock on the Exchange Date.
(c) After any partial exercise or exchange, the Holder will be
entitled to receive a new Warrant covering the Warrant Shares as to which this
Warrant has not been exercised or exchanged and setting forth the proportionate
part of the Aggregate Exercise Price applicable to such Warrant Shares.
(d) As soon as practicable, but within ten (10) days following the
surrender of this Warrant and the receipt of payment of the Aggregate Exercise
Price, or the proportionate part thereof, as the case may be, pursuant to
subsection (a) or subsection (b), the Company, within seven (7) days,
(i) will issue a certificate or certificates in the name of the
Holder for the largest number of whole shares of Common Stock to which the
Holder shall be entitled by the exercise (full or partial, in accordance with
the subscription form) or exchange of this Warrant;
(ii) will, if this Warrant is exercised in whole, in lieu of any
fractional share of Common Stock to which the Holder shall be otherwise
entitled, pay to the Holder cash in an amount equal to the fair value of such
fractional share (determined in such reasonable manner as the Board of Directors
shall determine), and
(iii) will deliver the other securities and properties receivable
upon the exercise or exchange of this Warrant, or the proportionate part thereof
if this Warrant is exercised or exchanged in part, pursuant to the provisions of
this Warrant.
2. Reservation of Warrant Shares; Listing. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, for the purpose of effecting the
exercise of Warrants, the full number of shares of Common Stock then issuable
upon the exercise of all outstanding Warrants. Throughout the period of time
during which this Warrant may be exercised, the Company shall use its
commercially reasonable efforts to keep the Warrant Shares authorized for
listing on the New York Stock Exchange or on any other successor national
securities exchange or other relevant market on which the Common Stock is
listed, admitted to trading or traded.
3. Protection Against Dilution. The Per-Share Exercise Price and the
number of Warrant Shares purchasable upon the exercise of the Warrants shall be
subject to adjustment from time to time as set forth in this Section 3. Whenever
the Per-Share Exercise Price is adjusted by operation of this Section 3, the
number of Warrant Shares to be delivered upon exercise of the Warrants shall be
adjusted as provided in subsection (n) hereof.
(a) In case the Company shall, while any of the Warrants are
outstanding, (i) pay a dividend or make any other distribution with respect to
shares of Common Stock in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, (iii) combine outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its Common Stock
any shares of stock of the Company (other than the reclassifications covered by
subsection (d)), the Per-Share Exercise Price shall be adjusted to be equal to a
fraction, the numerator of which shall be the Aggregate Exercise Price and the
denominator of which shall be the number of shares of Common Stock or other
stock of the Company that the Holder would have owned immediately following such
action had such Warrant been exercised immediately prior thereto or, in the case
of a dividend, distribution, subdivision, combination or reclassification with
respect to which a record date has been established, prior to such record date.
An adjustment made pursuant to this subsection shall be made immediately prior
to the opening of business on the day following (x) the date of the payment of
the dividend or distribution (retroactive to the record date) or (y) the
effective date in the case of a subdivision, combination or reclassification
(retroactive to the record date, if any). If the Board of Directors shall
declare any dividend or distribution or resolve to take any action referred to
in this subsection, it shall provide written notice thereof to the Holder not
less than 10 days prior to the record date fixed for determining the
stockholders entitled to participate therein.
(b) In case the Company shall, while any of the Warrants are
outstanding, issue rights or warrants to purchase, or securities convertible
into or exchangeable for, Common Stock ("Rights") to any holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for, purchase,
convert or exchange shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subsection (e) below) on the record date mentioned below, provided the purchase
price is less than the Per-Share Exercise Price theretofore in effect, the
Per-Share Exercise Price shall be adjusted so that the same shall equal the
amount determined by multiplying the Per-Share Exercise Price theretofore in
effect by a fraction the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such Rights plus the number
of shares which the aggregate offering price would purchase at such current
market price, and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such Rights plus the number
of additional shares of Common Stock offered for subscription or purchase.
"Aggregate offering price," as used in the preceding sentence, shall mean the
amount received or receivable by the Company in consideration of the issuance or
sale of Rights plus any additional consideration payable to the Company upon
exercise thereof, in each case with reference to the total number of shares of
Common Stock offered for subscription or purchase. Such adjustment shall be made
immediately prior to the opening of business on the day following the date of
issuance of Rights, retroactive to the record date for the determination of
stockholders entitled to receive Rights.
(c) In case the Company shall, by dividend or otherwise, distribute
to any holders of its outstanding shares of Common Stock evidences of its
indebtedness, shares of any class or series of its stock, assets, securities
convertible into or exchangeable for any of its stock or rights or warrants to
subscribe for or purchase any of its securities (excluding any Rights referred
to in subsection (b), any dividend or other distribution paid exclusively in
cash and any dividend or other distribution referred to in subsection (a) of
this Section 3), the Per-Share Exercise Price shall be reduced so that the same
shall equal the price determined by multiplying the Per-Share Exercise Price
theretofore in effect by a fraction the numerator of which shall be the current
market price (determined as provided in subsection (e)) per share of Common
Stock on the record date referred to below less the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive unless the Holder shall, within five (5) days of receipt of the
Adjustment Certificate (as defined below) setting forth the adjustment made,
request that the determination be made pursuant to the Appraisal Procedures), on
the record date referred to below, of the portion of the evidences of
indebtedness, shares of stock, assets, convertible or exchangeable securities,
rights or warrants (including fractions) so distributed with respect to each
share of Common Stock and the denominator of which shall be such current market
price per share of Common Stock. Such adjustment shall be made immediately prior
to the opening of business on the day following the date on which any such
distribution is made, retroactive to the record date for the determination of
stockholders entitled to receive such distribution. In the event that no such
dividend or other distribution is so paid or made, the Per-Share Exercise Price
shall again be adjusted to be the Per-Share Exercise Price which would then be
in effect if such dividend or other distribution had not occurred. If the Board
of Directors determines the fair market value of any distribution for purposes
of this subsection (c) by reference to the actual or when-issued trading market
for any securities comprising such distribution, it must in doing so consider
the prices in such market over the same period used in computing the current
market price per share of Common Stock (determined as provided in subsection
(e)).
(d) In the case of any capital reorganization of the Company or
reclassification of the Common Stock, or any consolidation or merger to which
the Company is a party other than a merger or consolidation in which the Company
is the continuing corporation, or in the case of any sale or conveyance to
another entity of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), the Holder shall have the right thereafter
to receive on the exercise of this Warrant the kind and amount of securities,
cash or other property which the Holder would have owned or have been entitled
to receive immediately after such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance had this Warrant
been exercised immediately prior to the effective date of such reorganization,
reclassification consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder to the end that the provisions set
forth in this Section 3 shall thereafter correspondingly be made applicable, as
nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the exercise of the Warrant.
Notice of any such reorganization, reclassification, consolidation, merger,
exchange, sale or conveyance shall be mailed to the Holder not less than 30 days
prior to such event. The above provisions of this subsection (d) shall similarly
apply to successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The Company shall require the issuer
of any shares of stock or other securities or property thereafter deliverable on
the exercise of the Warrant to be responsible for all of the agreements and
obligations of the Company hereunder.
(e) For the purpose of any computation under subsection (b) of
Section 1, or subsection (b) or (c) of this section, the current market price
per share of Common Stock on any date in question shall be deemed to be the
average of the daily Closing Prices for the five (5) Trading Day period ending
on the earlier of the day in question and, if applicable, the last Trading Day
before the "ex" date with respect to the issuance or distribution requiring such
computation; provided, however, that if more than one event occurs that would
require an adjustment pursuant to subsections (a) through (d), inclusive, the
Board of Directors shall in good faith make such adjustments to the Closing
Prices during such five (5) Trading Day period as it reasonably deems
appropriate to effectuate the intent of the adjustment provisions in this
Section 3, in which case any such determination by the Board of Directors shall
be conclusive unless the Holder shall within five (5) days of receipt of the
Adjustment Certificate setting forth the adjustment made, request that the
determination be made pursuant to the Appraisal Procedures. For purposes of this
paragraph, the term "ex" date means the first date on which the shares of Common
Stock trade regular way, without the right to receive such issuance or
distribution, on the New York Stock Exchange or on such successor securities
exchange as the shares of Common Stock may be listed on or in the relevant
market from which the Closing Prices were obtained.
(f) No adjustment in the Per-Share Exercise Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Per-Share Exercise Price; provided, however, that any adjustments which by
reason of this subsection (g) are not required to be made shall be carried
forward and taken into account in determining whether any subsequent adjustment
shall be required.
(g) If any action would require adjustment of the Per-Share Exercise
Price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holder.
(h) Except as stated above, the Per-Share Exercise Price will not be
adjusted for the issuance of shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(i) In case the Company shall, by dividend or otherwise, declare or
make a distribution on the shares of Common Stock referred to in Section 3(c),
the Holder, upon the exercise thereof subsequent to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution and prior to the effectiveness of the Per-Share Exercise Price
adjustment in respect of such distribution, shall also be entitled to receive,
for each share of Common Stock for which the Warrant is exercised, the portion
of the evidences of indebtedness, shares of stock, assets, securities
convertible into or exchangeable for any of its stock, or rights or warrants to
subscribe for or purchase any of its securities (including fractions) so
distributed with respect to each share of Common Stock; provided, however, that,
at the election of the Company with respect to all Holders so exercising, the
Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
unless the Holder shall, within five (5) days of receipt of the Adjustment
Certificate setting forth the adjustment made, request that the determination be
made pursuant to the Appraisal Procedures). If any exercise of a Warrant
described in the immediately preceding sentence occurs prior to the payment date
for a distribution to holders of shares of Common Stock which the Holder of a
Warrant so exercised is entitled to receive in accordance with the immediately
preceding sentence, the Company may elect to distribute to such Holder a due
xxxx for the evidences of indebtedness, shares of stock, assets, securities
convertible into or exchangeable for any of its stock, or rights or warrants to
subscribe for or purchase any of its securities to which such Holder is so
entitled, provided, that such due xxxx (a) meets any applicable requirements of
the principal national securities exchange or other market on which the shares
of Common Stock are then traded and (b) requires payment or delivery of such
evidences of indebtedness, shares of stock, assets, securities convertible into
or exchangeable for any of its stock, or rights or warrants to subscribe for or
purchase any of its securities no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
(j) Whenever the Per-Share Exercise Price is adjusted as provided in
this Section 3 and upon any modification of the rights of the Holder in
accordance with this Section 3, the Company shall promptly prepare a certificate
signed by the chief financial officer or the treasurer setting forth the
adjusted Per-Share Exercise Price and showing in reasonable detail the facts
requiring such adjustment or modification and the manner of computing the same
("Adjustment Certificate") and cause copies of such certificate to be mailed to
the Holder.
(k) If the Board of Directors shall authorize and the Company shall
declare any dividend or other distribution with respect to the Common Stock
other than a distribution exclusively in cash, the Company shall mail notice
thereof to the Holder not less than ten (10) days prior to the record date fixed
for determining stockholders entitled to participate in such dividend or other
distribution.
(l) If, as a result of an adjustment made pursuant to this Section
3, the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of stock or other securities,
the Board of Directors shall in good faith determine the allocation of the
adjusted Per-Share Exercise Price between or among such classes of stock or
other securities (whose determination shall be conclusive unless the Holder
shall, within five (5) days of receipt of the Adjustment Certificate setting
forth the adjustment made, request that the determination be made pursuant to
the Appraisal Procedures).
(m) Upon the expiration of any rights, options, warrants or
conversion privileges with respect to the issuance of which an adjustment to the
Per-Share Exercise Price had been made, if such shall not have been exercised,
the Per-Share Exercise Price, to the extent this Warrant has not then been
exercised, shall, upon such expiration, be readjusted and shall thereafter be
such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) on the basis of (A)
the Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) such shares of
Common Stock, if any, that were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Per-Share Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant of such
rights, options, warrants or conversion privileges.
(n) Whenever the Per-Share Exercise Price is adjusted as provided
pursuant to this Section 3, the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be adjusted by multiplying such number of Warrant
Shares immediately prior to such adjustment by a fraction, the numerator of
which shall be the Per-Share Exercise Price immediately prior to such
adjustment, and the denominator of which shall be the Per-Share Exercise Price
immediately thereafter.
(o) In case any event shall occur as to which the other provisions
of this Section 3 are not strictly applicable but as to which the failure to
make any adjustment would not fairly protect the purchase rights represented by
this Warrant in accordance with the essential intent and principles hereof then,
in each such case, the Board of Directors shall in good faith determine the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants (whose determination shall be conclusive, unless the
Holder shall, within five (5) days of receipt of the Adjustment Certificate
setting forth the adjustment made, request that the determination be made
pursuant to the Appraisal Procedures) and shall promptly make the adjustments
described therein.
4. Put Right. If, at any time during the period commencing on March
8, 2004 and expiring on March 8, 2005,
(a) the average daily per-share Closing Price of the Common Stock
(the "Average Price") during any period of ninety (90) consecutive Trading Days
preceding and including the date of measurement (the "Measurement Date") is
greater than the Per-Share Exercise Price in effect on the Measurement Date (the
"Measurement Date Exercise Price"), and
(b) the number of shares of Common Stock held by stockholders other
than the shares of Common Stock held by CT Management Stockholders and the
Associated Stockholders as of the close of business on the Measurement Date is
less than twenty-five million (25,000,000) (as adjusted for any stock dividend,
stock split, combination or similar recapitalization), then the Initial Holder
and/or any Related Holder(s), as the case may be (and not any other Holder)
shall have the right (the "Put Right") to require the Company to purchase,
subject to the following sentence, the Warrant(s), in whole or in part, held by
the Initial Holder and/or the Related Holder. If the Initial Holder and/or any
Related Holder, as the case may be, elect(s) to exercise the Put Right, then
such Holder(s) shall surrender this Warrant to the Company at the address set
forth in Section 11 hereof, accompanied by written notice (the "Put Notice") to
the Company of the election of the Holder(s) to require the purchase of the
Warrant(s) or a part thereof as specified in the Put Notice (any such part to be
expressed in terms of a portion of the number of whole Warrant Shares
corresponding to the portion of the Warrant(s) to be purchased) (the "Put
Portion") and the Company shall, within sixty (60) days after the Put Notice is
given, either as determined in its sole discretion: (x) purchase the Put Portion
at the Put Purchase Price and, if only a part of a Holder's Warrant is purchased
pursuant to an exercise of the Put Right, issue and deliver to such Holder a new
Warrant covering the balance of the shares remaining subject to this Warrant
(i.e., those Warrant Shares not included in the Put Portion) and setting forth
the proportionate part of the Aggregate Exercise Price applicable to such
balance of Warrant Shares; or (y) elect not to purchase the Put Portion and
provide written notice to such Holder that the Exercise Period shall be extended
to continue until March 8, 2008 whereupon this Warrant may continue to be
exercised through such date without any further action by the Company or such
Holder. If the Company elects not to purchase the Put Portion pursuant to clause
(y) of the foregoing sentence, the Company shall issue and deliver to such
Holder a new Warrant reflecting the extended Exercise Period and the Put Right
governed in this Section 4 shall terminate and be of no further force and effect
without any further action by the Company or such Holder. The "Put Purchase
Price" shall be the amount equal to the product obtained by multiplying (x) the
amount by which the Average Price exceeds the Measurement Date Exercise Price
and (y) the number of shares of Common Stock for which the Put Portion is
exercisable as of the date the Put Notice is given. The Company may elect to pay
the Put Purchase Price in cash or in the form of an assignment of the Company's
Interest(s) in the Fund(s) or Fund Control Persons, or in any combination of
cash and such an assignment, with an aggregate value equal to the Put Purchase
Price. The fair market value of any Interest(s) in the Fund(s) or Fund Control
Person(s) to be assigned in accordance with the foregoing shall be determined in
accordance with the Appraisal Procedures. The Company shall, in connection with
any assignment(s) of such Interest(s), execute and deliver written assignment(s)
and any additional documents requested by such exercising Holder to complete,
confirm or perfect the assignment of the assigned Interests.
5. Acceleration of Exercise Period. Notwithstanding the provisions of
Section 1, prior to the commencement of the Exercise Period, this Warrant may be
exercised in whole or part immediately upon the date of commencement of a third
party tender offer for more than 33% of the shares of Common Stock outstanding
on the date of commencement of such tender offer.
6. Fully Paid Stock; Taxes. The shares of the Common Stock
represented by each and every certificate for Warrant Shares delivered upon the
exercise of this Warrant shall at the time of such delivery, be duly authorized,
validly issued and outstanding, fully paid and nonassessable, and not subject to
preemptive rights or rights of first refusal. The Company shall pay all
documentary, stamp or similar taxes and other similar governmental charges that
may be imposed with respect to the issuance or delivery of any shares of Common
Stock upon exercise of the Warrants (other than income taxes); provided,
however, that if the shares of Common Stock are to be delivered in a name other
than the name of the Holder or any Related Holder, no such delivery shall be
made unless the person requesting the same has paid to the Company the amount of
transfer taxes or charges incident thereto, if any.
7. HSR. To the extent required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx") following any exercise or exchange of
this Warrant pursuant to subsections (a) or (b) of Section 1 by the Holder and
prior to the issuance and delivery of the certificates for the shares of Common
Stock required thereby, the Company and the Holder shall cooperate in the
preparation of, and file with the United States Federal Trade Commission and the
United States Department of Justice, the notification and report form required
for such and any supplemental or additional information which may be reasonably
requested in connection therewith pursuant to the HSR Act and shall comply in
all material respects with the requirements of the HSR Act. The fees to be paid
in connection with any such filing under the HSR Act shall be paid by the
Holder.
8. Transfer; Etc.
(a) This Warrant may be transferred by execution of the form of
assignment attached hereto or a substantially equivalent assignment form. Until
this Warrant is transferred on the books of the Company, the Company may treat
the registered Holder of this Warrant as he or it appears on the Company's books
at any time as the Holder for all purposes. The Company shall permit any Holder
of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants.
(b) This Warrant may not be sold, transferred, assigned or
hypothecated by the Holder except in compliance with the provisions of the
Securities Act of 1933 and the applicable state securities "blue sky" laws, and
is so transferable only upon the books of the Company which it shall cause to be
maintained for such purpose.
(c) All Warrants issued upon the transfer or assignment of this
Warrant or part thereof or upon a partial exercise, exchange or purchase of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
9. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
10. Warrant Holder Not Stockholder. This Warrant does not confer upon
the Holder any right to vote on or consent to or receive notice as a stockholder
of the Company, as such, in respect of any matters whatsoever, nor any other
rights or liabilities as a stockholder, prior to the exercise hereof; this
Warrant does, however, require certain notices to the Holder as set forth
herein.
11. Communication. Any notice or other communication to be given
hereunder shall be given by hand delivery, by overnight carrier, in each case at
the addresses set forth in this section, and shall be deemed to have been given
when received. The Company or the Holder may change its address for receiving
notices by giving written notice of such change to the other.
If to the Company, to:
Capital Trust, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
If to the Holder, to:
Travelers General Real Estate Mezzanine Investments II, LLC
000 Xxxxxxxx Xxxx., 0XX
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
Real Estate Investment Number: 12833
12. Headings. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
13. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the principles of conflicts of law thereof.
14. Amendment, Waiver, etc. Except as expressly provided herein,
neither this Warrant nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the majority in
interest of the Holders.
15. Certain Definitions.
"Appraisal Procedures" has the meaning set forth in the Venture
Agreement.
"Associated Stockholders" has the meaning set forth in the Venture
Agreement.
"Board of Directors" means the board of directors of the Company.
"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).
"CT Management Stockholders" has the meaning set forth in the
Venture Agreement.
"Fund" has the meaning set forth in the Venture Agreement.
"Fund Control Person" has the meaning set forth in the Venture
Agreement.
"Initial Holder" means CT-F1, LLC, a Delaware limited liability
company.
"Interest" means (i) rights to distributions from the Fund(s),
including but not limited to, the "carried interest" or "promote," and (ii)
rights to management fees.
"Related Holder(s)" means any Holder who is Citigroup Inc. or any
of its direct or indirect wholly owned entities or Travelers Property Casualty
Corp. or any of its direct or indirect wholly owned entities.
"Trading Day" means a day on which any securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
"Venture Agreement" means that certain venture agreement, dated as
of the date hereof, by and between the Company, CT-F1, LLC, a Delaware limited
liability company, CT-F2-GP, LLC, a Delaware limited liability company,
CT-F2-LP, LLC, a Delaware limited liability company, CT Investment Management
Co., LLC, a Delaware limited liability company, Travelers Limited Real Estate
Mezzanine Investments I, LLC, a Delaware limited liability company, Travelers
General Real Estate Mezzanine Investments II, LLC, a Delaware limited liability
company and Travelers Limited Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed this 9th day of April, 2001.
CAPITAL TRUST, INC.
By:
--------------------------------
Xxxxxx X. Xxxxxxx III
Managing Director, Chief Financial
Officer and Treasurer
SUBSCRIPTION
The undersigned, ___________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for and purchase
_________________ shares of the Common Stock, par value $.01 per share, of
Capital Trust, Inc. covered by said Warrant, and makes payment therefor in full
at the price per share provided by said Warrant.
Dated:_______________ Signature:___________________________
Address:____________________________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of
Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and
transfers unto ____________________ the right to purchase _______ shares of
Common Stock, par value $.01 per share, of Capital Trust, Inc. covered by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
____________________, attorney, to transfer such part of said Warrant on the
books of Capital Trust, Inc.
Dated:_______________ Signature:__________________________
Address:____________________________
