Exhibit 10.23
WARRANT PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is entered into as
of January 29, 2003, by and between Travelers Insurance Company, a Connecticut
corporation ("TIC"), Citigroup Alternative Investments GP, LLC, a Delaware
limited liability company ("CAI GP"), Citigroup Alternative Investments General
Real Estate Mezzanine Investments II, LLC (formerly known as Travelers General
Real Estate Mezzanine Investments II, LLC), a Delaware limited liability company
("General XXXX XX" and together with TIC and CAI GP, the "Selling Parties") and
Capital Trust, Inc., a Maryland corporation ("CT").
Preliminary Statement
TIC holds a warrant to purchase 1,402,500 shares of class A
common stock, par value $.01 per share ("Common Stock"), of CT at an exercise
price of $5.00 per share pursuant to a warrant agreement, dated as of March 8,
2000, made by CT (the "TIC Warrant"). CAI GP holds a warrant to purchase
2,847,500 shares of Common Stock of CT at an exercise price of $5.00 per share
pursuant to a warrant agreement, dated as of March 8, 2000, made by CT (the "CAI
GP Warrant"). General XXXX XX holds a warrant to purchase 3,015,600 shares of
Common Stock of CT at an exercise price of $5.00 per share pursuant to a warrant
agreement, dated as of April 9, 2001, made by CT (the "General XXXX XX Warrant
1"). General XXXX XX holds a warrant to purchase 236,233 shares of Common Stock
of CT at an exercise price of $5.00 per share pursuant to a warrant agreement,
dated as of May 29, 2001, made by CT (the "General XXXX XX Warrant 2"). General
XXXX XX holds a warrant to purchase 1,026,634 shares of Common Stock of CT at an
exercise price of $5.00 per share pursuant to a warrant agreement dated as of
August 7, 2001, made by CT (the "General XXXX XX Warrant 3", and together with
the TIC Warrant, the CAI GP Warrant, the General XXXX XX Warrant 1 and the
General XXXX XX Warrant 2, the "Warrants").
The Selling Parties desire to sell to CT, and CT desires to
purchase from the Selling Parties, all of Selling Parties' right, title and
interest in and to the Warrants.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereby agree as follows:
1. Terms of Purchase and Closing
1.1 Purchase and Sale. At the Closing (as defined herein), subject to
the terms and conditions set forth in this Agreement, each Selling Party hereby
agrees to sell, assign, transfer, convey and deliver to CT, and CT hereby agrees
to purchase from each such Selling Party, all of each such Selling Party's
right, title and interest in and to its Warrant(s), at the purchase price
specified herein.
1.2 Purchase Price. The purchase price payable to each Selling Party
for its Warrant(s) shall be an amount determined by multiplying $0.25 by the
total number of
shares issuable upon exercise of such Warrant(s) as set forth below, payable in
cash in the manner set forth in Section 1.3 (each such price, a "Purchase
Price").
Warrant Number of Shares Purchase Price
------- ---------------- --------------
TIC Warrant 1,402,500 $350,625.00
CAI GP Warrant 2,847,500 $711,875.00
General XXXX XX Warrant 1 3,015,600 $753,900.00
General XXXX XX Warrant 2 236,233 $59,058.25
General XXXX XX Warrant 3 1,026,634 $256,658.50
Total: 8,528,467 $2,132,116.75
1.3 Closing Payment. The Purchase Price payable to each Selling Party
for its Warrant(s) shall be delivered at the Closing to each such Selling Party
in cash by wire transfer of immediately available funds to the account(s) of
such Selling Party as set forth in written wire transfer instructions provided
to CT by each such Selling Party prior to the Closing.
1.4 Closing. The closing of the purchase and sale of the Warrants (the
"Closing") shall take place on the date hereof (the "Closing Date"), at which
time CT shall deliver the Purchase Price due each Selling Party and each Selling
Party shall deliver to CT its Warrant(s), which Warrants shall be deemed
cancelled and of no further legal force or effect. The purchase and sale of the
Warrants shall be irrevocable and complete upon the Closing.
2. Representations and Warranties
2.1 Authorization and Binding Nature. Each of the parties represents
and warrants as of the date hereof that:
(a) Such party is duly organized, existing and in good standing
under the laws of the state of its organization, with the requisite authority
and power to carry on its business as currently conducted;
(b) Such party has duly and validly executed and delivered this
Agreement and has the corporate, limited liability company or other power and
authority and the legal right to effect the transactions contemplated hereby;
(c) The execution of this Agreement and performance thereunder
by such party will not result in any breach or violation of or conflict with (i)
any provision of its charter, by-laws or limited liability company agreement,
(ii) any of the terms or conditions of any agreement or other instrument by
which any such party is bound or
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affected or by which its assets are affected, (iii) any order, writ, injunction,
judgement, decree, law, statute, rule or regulation applicable to it, or any of
its respective properties or assets or (iv) result in the creation or imposition
of any lien or encumbrance on any of its assets; and
(d) This Agreement constitutes the legal, valid, binding and
enforceable obligation of such party, enforceable against it in accordance with
its terms, subject to (i) judicial principles respecting election of remedies or
limiting the availability of specific performance, injunctive relief or other
equitable remedies, (ii) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect generally relating to or affecting
creditors' rights and (iii) public policy concerns (including, without
limitation, the ability of a court to refuse to enforce unconscionable covenants
and similar provisions).
2.2 Representation and Warranty of the Selling Parties. The Selling
Parties, jointly and severally, represent and warrant as of the date hereof that
the Selling Parties own the Warrants, and have not assigned, sold, participated
out, cancelled, transferred or subjected to any lien, charge or encumbrance in
any manner, all or any portion of their interest in the Warrants.
3. Miscellaneous
3.1 Survival. All representations, warranties and covenants made herein
shall survive the execution and delivery of this Agreement.
3.2 Entire Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and thereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
3.3 Amendment. No amendment, whether express or implied, to this
Agreement shall be effective unless it is in writing and signed by the parties
hereto.
3.4 Assignment and Successors. The Selling Parties and CT may not
assign or transfer any of their rights, obligations or responsibilities under
this Agreement without the other party's prior written consent. Any purported
assignment or transfer without any required consent is null and void. Subject to
the foregoing, this Agreement shall be binding upon the respective successors
and permitted assigns of the parties hereto and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
3.5 Notices. All notices or other communications under this Agreement
shall be sufficient if in writing and delivered by hand or sent by a recognized
overnight air
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courier service and shall be deemed given when received by the parties at the
following addresses:
If to CT:
Capital Trust, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx
and with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
If to TIC:
Travelers Insurance Company
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
and with a copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to CAI GP:
Citigroup Alternative Investments GP, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
and with a copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
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If to General XXXX XX:
Citigroup Alternative Investments Limited
Real Estate Mezzanine Investments II, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
and with copies to:
Citigroup Investments Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Real Estate Investment Number 12833
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
3.6 Arbitration. All claims, disputes and other matters in question
arising out of or relating to this Agreement or interpretation or breach of this
Agreement shall be decided by arbitration in accordance with the procedures set
forth in Sections 4.2(a) through (d) of the Venture Agreement (as defined
below). For purposes of this Agreement, the term "Venture Agreement" means that
certain venture agreement dated as of March 8, 2000, among 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, Travelers Limited Real Estate Mezzanine Investments II, LLC,
a Delaware limited liability 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, and Capital Trust, Inc., a Maryland
corporation, as amended to date or hereafter.
3.7 Governing Law; Submission to Jurisdiction. This Agreement shall be
subject to and the parties shall be bound by the provisions of Section 4.2(e) of
the Venture Agreement.
3.8 Further Assurances. From and after the date hereof, each party to
this Agreement shall perform any further acts and execute and deliver any
further documents or instruments as may be reasonably necessary to assure and
confirm the rights hereby
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created, cancelled or intended now or hereafter to be so, or to carry out the
intention or facilitate the performance of this Agreement.
3.9 Costs and Expenses. Each party to this Agreement shall bear its own
respective costs and expenses incurred in connection with the negotiation,
preparation, execution, delivery and enforcement of this Agreement and the
consummation of the transactions contemplated hereby.
3.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CAPITAL TRUST, INC.
By:/s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CITIGROUP ALTERNATIVE
INVESTMENTS GP, LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CITIGROUP ALTERNATIVE
INVESTMENTS GENERAL
REAL ESTATE MEZZANINE
INVESTMENTS II, LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
