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 ("General XXXX XX"), Xxxxx X. Xxxxxxx
("Xxxxxxx") and CMH Investment Partnership LP, a Delaware limited partnership
("CMH") (Hatkoff and CMH are collectively referred to herein as the
"Stockholders" and individually referred to herein as a "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 Stockholders own in the aggregate 2,348,132 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 Stockholders 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 Stockholders. The Stockholders
hereby, jointly and severally, represent and warrant to General XXXX XX as
follows:
(a) Authority. Each 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 each
Stockholder, and the consummation of the transactions contemplated hereby,
has been duly authorized by all necessary action on the part of each
Stockholder. This Agreement has been duly executed and delivered by each
Stockholder and, assuming the due authorization,
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execution and delivery by General XXXX XX, constitutes a valid and binding
obligation of each Stockholder 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 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
any of the Stockholders or to any of the property or assets of any of the
Stockholders. 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 any Stockholder in connection with the execution and
delivery of this Agreement or the consummation by any Stockholder of the
transactions contemplated hereby.
(b) The Owned Shares. The Stockholders have good and valid title to
the Owned Shares, free and clear of any claims, liens, encumbrances,
pledges and security interests whatsoever. The Stockholders own 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 Stockholders, 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 Stockholders understand and acknowledge
that General XXXX XX is entering into the Venture Agreement in reliance
upon the Stockholders' 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
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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 each of the Stockholders, constitutes a 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 any 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 Stockholders. Until the valid termination of the
provisions of this Section 3 pursuant to Section 8, the Stockholders agree 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 Stockholders shall vote (or cause to be voted) all shares of CT Common
Stock they own or have 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 Stockholders' vote, consent or
other approval is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock owned by them or over which they have
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.
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(c) The Stockholders 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 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) each 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, (ii) each
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 or (iii) CMH to enter into an agreement with the respect
to the voting and Disposition of shares of CT Common Stock between and
among CMH and Veqtor Finance Company, L.L.C. and JRK Investment
Partnership, LP (the "JCV Group"), provided that the obligations of CMH in
such agreement are expressly subordinate to the obligations of CMH
hereunder and there are no parties to such agreement other than the JCV
Group. 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 Stockholders. Until the valid
termination of the provisions of this Section 4 pursuant to Section 8, the
Stockholders agree 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 Stockholders' vote, consent or other approval with respect to any
such REIT Tax Matter is sought, the Stockholders shall vote (or cause to be
voted) all shares of CT Common Stock they own or have 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 Stockholders' vote, consent or
other
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approval is sought, the Stockholders shall vote (or cause to be voted) all
shares of CT Common Stock owned by them or over which they have 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. Each 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 reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and to vest the power to
vote such Stockholder's Owned Shares as contemplated in Section 3.
6. Duty. Notwithstanding the covenants of Stockholders 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
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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 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 Floor
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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.
If to the Stockholders, to:
c/o Capital Trust, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 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
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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.
(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
/s/ Xxxxxxx Xxxxxx
By: ______________________________
Xxxxxxx Xxxxxx
Vice President
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
____________________________________
CMH INVESTMENT PARTNERSHIP LP
By: Xxxxx X. Xxxxxxx, its general partner
/s/ Xxxxx X. Xxxxxxx
______________________________
Xxxxx X. Xxxxxxx
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