Exhibit 10.7
GUARANTY OF PAYMENT
This GUARANTY OF PAYMENT (this "Guaranty of Payment"), dated as of
March 8, 2000, made by The Travelers Insurance Company, a Connecticut
corporation ("TIC") in favor of Capital Trust, Inc., a Maryland corporation
("CT"), and its wholly owned subsidiaries, CT-F1, LLC, a Delaware limited
liability company ("CT-F1"), CT-F2-GP, LLC, a Delaware limited liability company
("CT-F2-GP"), CT-F2-LP, LLC, a Delaware limited liability company ("CT- F2-LP"),
and CT Investment Management Co., LLC, a Delaware limited liability company
("CTIMCO" and collectively with XX-X0, XX-X0-XX, XX-X0-XX and CTIMCO, the "CT
Parties"). Terms not otherwise defined herein shall have the meanings assigned
to such terms in the Venture Agreement, as defined below.
PRELIMINARY STATEMENTS
WHEREAS, Travelers Limited Real Estate Mezzanine Investments I, LLC, a
Delaware limited liability company ("Limited REMI I"), Travelers General Real
Estate Mezzanine Investments II, LLC, a Delaware limited liability company
("General XXXX XX"), and Travelers Limited Real Estate Mezzanine Investments II,
LLC, a Delaware limited liability company ("Limited XXXX XX" and collectively
with Limited REMI I and General XXXX XX, the "CIG Parties"), CT and the CT
Parties intend to enter into that certain venture agreement, dated as of the
date hereof, pursuant to which, among other things, the parties thereto will
co-sponsor, commit to invest capital in and manage real estate mezzanine
opportunity funds (the "Venture Agreement").
WHEREAS, as a condition to the Parties entering into the Venture
Agreement, TIC has agreed to execute and deliver this Guaranty of Payment.
NOW, THEREFORE, in consideration of the promises and in order to induce
CT and the CT Parties to enter into the Venture Agreement, TIC hereby agrees as
follows:
SECTION 1. Unconditional Guarantee; Enforcement.
(a) TIC hereby unconditionally and irrevocably guarantees for
the benefit of CT and the CT Parties the full and prompt payment when
and as due of the CIG Parties' funding, contribution and
indemnification obligations under the Venture Agreement subject to any
defense, right of set-off or counterclaim, other than on account of or
resulting from the Bankruptcy of any of the CIG Parties, that the CIG
Parties may have or assert, which defense, right of set-off or
counterclaim shall be available to TIC hereunder to the same extent
that it would be available to the applicable CIG Party ("Guaranteed
Obligations").
(b) It shall not be a condition to the obligation of
TIC hereunder to guarantee and ensure the performance, observance
or payment of any of the Guaranteed Obligations
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that CT and the CT Parties shall have first made any request of or
demand upon or given any notice to the CIG Parties, or have instituted
any action or proceeding against the CIG Parties in respect thereof. CT
and the CT Parties may proceed to enforce the Guaranteed Obligations of
TIC hereunder without first pursuing or exhausting any right or remedy
that they may have against the CIG Parties.
SECTION 2. Obligations Absolute. TIC guarantees, undertakes and agrees
with and for the benefit of CT and the CT Parties to ensure the performance of
all the Guaranteed Obligations strictly in accordance with the terms of the
Venture Agreement. The obligations of TIC under this Guaranty of Payment are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against TIC to enforce this Guaranty of Payment,
irrespective of whether any action is brought against the CIG Parties or whether
the CIG Parties are joined in any such action(s). The obligations of TIC under
this Guaranty of Payment shall be absolute and unconditional irrespective of:
(a) any Bankruptcy of any CIG Parties;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from the
Venture Agreement or any other agreement entered into in connection
therewith or as contemplated thereby;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other assets of the CIG Parties or any of
their subsidiaries; or
(e) any change, restructuring or termination of the corporate
structure or existence of the CIG Parties or any of their
subsidiaries.
This Guaranty of Payment shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by CT and the CT Parties upon the
insolvency, bankruptcy or reorganization of the CIG Parties or otherwise, all as
though such payment had not been made.
SECTION 3. Waiver. TIC hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty of Payment and any requirement that CT and the CT
Parties protect, secure, perfect or insure any security
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interest or lien or any collateral subject thereto or exhaust any right or take
any action against the CIG Parties or any other Person or any collateral.
SECTION 4. Subrogation. TIC hereby irrevocably confirms that it will
subordinate to the claims and rights of CT and the CT Parties any claims or
other rights it may have against the CIG Parties or any of their respective
properties that arise solely from the existence, payment, performance or
enforcement of any obligation under this Guaranty of Payment or the Guaranteed
Obligations, including (without limitation): (a) any right of subrogation,
reimbursement, exoneration, contribution or indemnification or (b) any right to
participate in any claim or remedy of CT and the CT Parties against the CIG
Parties, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including (without limitation) the right to
take or receive from the CIG Parties, directly or indirectly, in cash or other
property or by set- off or in any other manner, payment or security on account
of such claim, remedy or right. The provisions of this paragraph shall apply
solely to claims made under the Guaranty of Payment and shall not apply to any
other rights or claims TIC may have now or in the future against the CIG
Parties. TIC acknowledges that it will receive direct and indirect benefits from
the Venture Agreement and that the confirmation set forth in this paragraph is
knowingly made in contemplation of such benefits.
SECTION 5. Consent to Jurisdiction. Subject to Section 6, TIC hereby
irrevocably submits to the non-exclusive jurisdiction of the courts of the
County of New York, State of New York and of any Federal court located in the
County of New York, State of New York (and any appellate court from any thereof)
in any action or proceeding arising out of or relating to this Guaranty of
Payment or the transactions contemplated hereby. TIC hereby irrevocably waives
any objection that it may have to the laying of venue of any such proceeding and
any claim that any such proceeding has been brought in an inconvenient forum.
SECTION 6. Dispute Resolution. Any dispute arising under this Guaranty
of Payment shall be subject to and settled pursuant to the procedures in Section
4.2 of the Venture Agreement.
SECTION 7. Representations and Warranties. TIC represents and
warrants as follows:
(a) Organization and Good Standing. It is a corporation duly
organized, validly existing and in good standing under the applicable
laws of its jurisdiction of incorporation; has all requisite power to
own, lease and operate its assets, properties and business and to
carry on its business as now conducted; and is in good standing in
every jurisdiction in which the nature of its business or the location
of its properties requires such qualification, except for such
jurisdictions where the failure to so qualify would not have a
material adverse effect upon its ability to perform fully its
obligations under this Guaranty of Payment.
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(b) Authority to Execute and Perform Agreements. It has all
requisite corporate power and authority to enter into, execute and
deliver this Guaranty of Payment and to perform fully its obligations
hereunder.
(c) Due Authorization; Enforceability. It has taken all corporate
actions necessary to authorize it to enter into and perform fully its
obligations under this Guaranty of Payment and to consummate the
transactions contemplated herein. This Guaranty of Payment has been
duly and validly executed by it and constitutes the legal, valid and
binding obligation of it, enforceable in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar applicable laws
affecting creditors' rights generally or by general equitable
principles affecting the enforcement of contracts.
(d) No Violation. Neither its execution or delivery of this
Guaranty of Payment nor the consummation of the transactions
contemplated herein will: (a) violate any provision of its certificate
of incorporation or by-laws; or (b) violate in any material respect
any applicable law or order.
(e) Regulatory and Other Approvals. No consent, approval,
authorization, notice, filing, exemption or other requirement must be
obtained by it from any authority or Person or must otherwise be
satisfied by it in order that the consummation of the transactions
contemplated in this Guaranty of Payment will not violate in any
material respect any applicable law or order or any material contract
to which it is a party.
(f) Litigation. It is not (i) subject to any outstanding
injunction, judgment, order, decree, ruling, or charge, and (ii) there
is no material claim, action, proceeding or investigation pending or,
to its knowledge, threatened against or relating to it before any
court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator which
challenges the ability or legality of such party' s entering into this
Guaranty of Payment.
SECTION 8. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty of Payment, and no consent to any departure by TIC herefrom, shall
be effective unless the same shall be in writing and signed by CT and the CT
Parties, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 9. Addresses for Notices. All notices and other communications
provided for hereunder shall (a) be in writing, (b) be delivered pursuant to
Section 8.2 of the Venture Agreement and (c) be effective as and when described
in such section and, in the case of TIC, shall be addressed to the mailing
address as shown on the signature page hereto, with copies as indicated below
its address, or at such other address designated by TIC to CT and the CT Parties
in writing.
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SECTION 10. No Waiver; Remedies. No failure on the part of CT and the
CT Parties to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11. Binding Agreement. The obligations of TIC hereunder shall
(a) remain in full force and effect until the performance in full of the
Guaranteed Obligations, (b) be binding upon TIC, its successors and assigns, and
(c) inure to the benefit of, and be enforceable by, CT and the CT Parties and
their successors, transferees and assigns.
SECTION 12. No Third Party Beneficiaries. This Guaranty of Payment is
not intended to confer upon any person other than CT and the CT Parties any
rights or remedies hereunder.
SECTION 13. Governing Law. This Guaranty of Payment shall be governed
by, and construed in accordance with, the internal laws of the State of New York
(including Section 5- 1401 of the New York General Obligations Law).
SECTION 14. Waiver of Jury Trial. TIC hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to this Guaranty of
Payment or the actions of TIC in the negotiation, performance or enforcement
thereof.
SECTION 15. Execution in Counterparts. Delivery of an executed
counterpart of a signature page to this Guaranty of Payment by telecopier shall
be effective as delivery of a manually executed counterpart of this Guaranty of
Payment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty of Payment
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
Vice President
With copies to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
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