STOCKHOLDER APPROVAL AGREEMENT
STOCKHOLDER APPROVAL AGREEMENT (this "Agreement"), dated as of March 8,
2000, among Travelers General Real Estate Mezzanine Investments II, LLC, a
Delaware limited liability company and Samstock, L.L.C., a Delaware limited
liability company ("Stockholder").
Preliminary Statement
A. Capital Trust, Inc., a Maryland corporation ("CT"), and certain of its
affiliates (the "CT Parties") and General XXXX XX and certain of its Affiliates
(the "CIG Parties"), propose to enter into a venture agreement, dated as of the
date hereof (the "Venture Agreement"), pursuant to which, among other things,
the CIG Parties and CT and the CT Parties will co-sponsor, commit to invest
capital in and manage real estate mezzanine investment opportunity funds.
B. The Stockholder owns in the aggregate 75,000 shares (the "Owned Shares")
of class A common stock, par value $.01 per share, of CT ("CT Common Stock").
C. As a condition to the CIG Parties' willingness to enter into the Venture
Agreement, the CIG Parties have requested the Stockholder to enter into this
Agreement.
D. Capitalized terms used but not defined herein have the meanings set
forth in the Venture Agreement.
NOW, THEREFORE, to induce the CIG Parties to enter into, and in
consideration of the CIG Parties entering into, the Venture Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholders
hereby, jointly and severally, represent and warrant to General XXXX XX as
follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and, assuming the due authorization, execution and delivery by
General XXXX XX, constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting
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creditors' rights generally or by general principles governing the
availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any trust agreement, partnership
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Stockholder or to any of the property or
assets of the Stockholder. Except for consents, approvals, authorizations
and filings as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the Securities
Exchange Act of 1934, as amended ("Exchange Act"), no consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority
or instrumentality, domestic, foreign or supranational ("Governmental
Entity"), is required by or with respect to the Stockholder in connection
with the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
(b) The Owned Shares. The Stockholder has good and valid title to the
Owned Shares, free and clear of any claims, liens, encumbrances, pledges
and security interests whatsoever. The Stockholder owns no shares of CT
Common Stock or other shares of stock of CT, other than the Owned Shares.
Except for this Agreement, and that certain stockholder voting and lock-up
agreement, dated as of the date hereof, by and among General XXXX XX, the
Stockholder, and the other holders of CT Common Stock named therein (the
"Voting and Lockup Agreement"), no proxies or powers of attorney have been
granted with respect to the Owned Shares and no voting arrangement
(including voting agreement or voting trust) has been entered into
affecting the Owned Shares that will remain in effect after the execution
of this Agreement.
(c) Venture Agreement. The Stockholder understands and acknowledges
that General XXXX XX is entering into the Venture Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement.
2. Representations and Warranties of General XXXX XX. General XXXX XX
hereby represents and warrants to the Stockholders as follows:
(a) Authority. General XXXX XX has all requisite limited liability
company power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by General XXXX XX, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary limited
liability company action on the part of General XXXX XX. This Agreement has
been duly executed and delivered by General XXXX XX, assuming the due
authorization, execution and delivery by the Stockholder, constitutes a
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valid and binding obligation of General XXXX XX enforceable in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles governing the
availability of equitable remedies. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time or both) under any provision of any limited liability company
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to General XXXX XX or to any of the property or
assets of any of General XXXX XX. Except for consents, approvals,
authorizations and filings as may be required under the HSR Act and the
Exchange Act, no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by General
XXXX XX of the transactions contemplated hereby.
3. Covenants of the Stockholder. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholder agrees as
follows:
(a) At any meeting of stockholders of CT called to vote upon the
Warrant Issuance (as such term is defined in the Venture Agreement) or at
any adjournment thereof or in any other circumstances upon which a vote,
consent or other approval with respect to the Warrant Issuance is sought,
the Stockholder shall vote (or cause to be voted) all shares of CT Common
Stock it owns or has voting control over in favor of the Warrant Issuance.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be voted)
all shares of CT Common Stock owned by it or over which it has voting
control against any amendment of CT's charter and amended and restated
bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect the Warrant
Issuance.
(c) The Stockholder shall not (i) Transfer or Otherwise Dispose (as
hereinafter defined) of, or enter into any agreement or other arrangement
with respect to, the Owned Shares to any person, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power of
attorney or otherwise with respect to, the Owned Shares, except as provided
in this Agreement and the Voting and Lockup Agreement or (iii) take any
other action that would reasonably be expected in any way
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to restrict, limit, or interfere with the performance of their obligations
hereunder. Notwithstanding the foregoing, nothing contained in this
Agreement shall be deemed to restrict or prohibit the ability of (i) the
Stockholder to transfer shares to immediate family members or trusts or
other entities in connection with estate planning objectives, provided that
such transferee agrees in writing to be bound by the terms of this
Agreement as though such transferee were a Stockholder, and that notice and
a copy of such agreement are provided to General XXXX XX prior to such
transfer or (ii) the Stockholder from pledging up to a number of its shares
of CT Common Stock to any nationally recognized financial institution as
collateral for a bona fide third party loan or from using up to a number of
its shares of CT Common Stock as collateral for a bona fide third party
margin loan with a nationally recognized financial institution or
broker/dealer equal to the maximum number of shares that may be pledged
pursuant to the Voting and Lockup Agreement. For purposes of this
Agreement, "Transfer or Otherwise Dispose" means any sale, exchange,
redemption, assignment, gift, grant of a security interest, pledge or other
encumbrance, or the creation of any other claim thereto or any other
transfer or disposition whatsoever (including involuntary sales, exchanges,
transfers or other dispositions, and whether or not for cash or other
consideration) affecting the right, title, interest or possession in, to or
of CT Common Stock.
4. Additional Covenants of the Stockholder. Until the valid termination
of the provisions of this Section 4 pursuant to Section 8, the Stockholder
agrees as follows:
(a) At any meeting of stockholders of CT called to vote upon any REIT
Tax Matter submitted to a vote pursuant to Section 2.14 of the Venture
Agreement or at any adjournment thereof or in any other circumstances upon
which the Stockholder's vote, consent or other approval with respect to any
such REIT Tax Matter is sought, the Stockholder shall vote (or cause to be
voted) all shares of CT Common Stock it owns or has voting control over at
such time in favor of such REIT Tax Matter.
(b) At any meeting of stockholders of CT or at any adjournment thereof
or in any other circumstances upon which the Stockholder's vote, consent or
other approval is sought, the Stockholder shall vote (or cause to be voted)
all shares of CT Common Stock owned by it or over which it has voting
control at such time against any amendment of CT's charter and amended and
restated bylaws or other proposal or transaction involving CT or any of its
subsidiaries, which amendment or other proposal or transaction would
reasonably be expected in any manner to impede, frustrate, prevent or
nullify CT's ability or obligation to consummate or effect any REIT Tax
Matter.
5. Further Assurances. Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as General
XXXX XX may
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reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement and to vest the power to vote the Stockholder's
Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholder contained in Sections
3 and 4, any Stockholder who is an officer or director of CT, only in his
capacity as an officer or director of CT, may take any such action that is in
furtherance of the exercise of his duties as an officer or director under
Maryland law, and no such action in furtherance of the exercise of such duties
shall be deemed to be a breach or violation of the covenants of such Stockholder
contained in Sections 3 and 4 and the Stockholders shall not have any liability
hereunder for any such action taken in his capacity as an officer and director
of CT in furtherance of the exercise of such duties.
7. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that General XXXX XX may assign, in
its sole discretion, any or all of its rights and interests to Citigroup Inc. or
any of its direct or indirect wholly owned subsidiaries or other entities or to
Travelers Property Casualty Corp. or any of its direct or indirect wholly owned
subsidiaries or other entities. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of any
Stockholder that is an individual, the heirs, executors and administrators of
such Stockholder.
8. Termination. The rights and obligations contained in Section 3 shall
terminate and shall be of no further legal force and effect on the date on which
stockholders of CT shall have considered and voted upon the Warrant Issuance.
The rights and obligations contained in Section 4 shall terminate and shall be
of no further legal force and effect on the earlier of the date on which (i)
stockholders of CT shall have considered and voted upon any REIT Tax Matters
presented for a vote pursuant to Section 2.14 of the Venture Agreement, (ii) if
the Fund II Initial Closing shall not have occurred by no later than December
31, 2000 or any Extension Date, (a) the Unwind set forth in the Fund I Agreement
is commenced or (b) any dissolution or liquidation of Fund I in accordance with
its terms is completed, (iii) the Appraisal Procedures shall have commenced with
respect to the Fair Market Value of the CIG Parties' and their Affiliates' Board
Right Shares pursuant to Section 2.14 of the Venture Agreement, or (iv) upon the
resignation of the CIG Parties Initial Board Designees as set forth in Section
2.12(e) of the Venture Agreement if the CIG Parties or the CT Parties shall have
exercised their right to terminate the Venture Agreement pursuant to Section
2.12(e) of the Venture Agreement.
9. General Provisions.
(a) Specific Performance. The parties agree that irreparable damage
that is impossible to measure in money damages would occur in the event
that any of the
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provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in
the State of New York or any New York state court, this being in addition
to any other remedy to which they are entitled at law or in equity.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered (i)
when delivered personally, or (ii) if sent by registered or certified mail,
return receipt requested, or by private courier when received; and shall be
addressed as follows:
If to General XXXX XX, to:
Travelers General Real Estate Mezzanine
Investments II, LLC
000 Xxxxxxxx Xxxx., 0XX
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
Real Estate Investment Number: 12833
With a copies to:
Citigroup Investments Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxxx Xxxxxx
Real Estate Investment Number: 12833
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
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If to the Stockholder, to:
c/o Equity Group Investments, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
or to such other address as such party may indicate by a notice delivered
to the other parties hereto.
(e) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counter parties have
been signed by each of the parties and delivered to the other party, it
being understood that each party need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
together with all other agreements executed by the parties hereto on the
date hereof (including the documents and instruments referred to herein),
(i) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York as to all matters,
including but not limited to, matters of validity, construction, effect,
performance and remedies, without regard to any applicable conflicts of
law.
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(i) Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TRAVELERS GENERAL REAL ESTATE
MEZZANINE INVESTMENTS II, LLC
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Vice President
SAMSTOCK, L.L.C.
By: SZ Investments LLC, its sole member
By: Xxxx General Partnership, Inc., its
managing partner
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
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