-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FBL1pbabv6RYkRXNjxbCGR78lF6LZcTI0hOMPHNjarLsNz/cwsFY+V3zJHbTYPPb mFCFh2hJb9lYSP4vSKT83g== 0001116679-05-000714.txt : 20050310 0001116679-05-000714.hdr.sgml : 20050310 20050310164703 ACCESSION NUMBER: 0001116679-05-000714 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 25 CONFORMED PERIOD OF REPORT: 20041231 FILED AS OF DATE: 20050310 DATE AS OF CHANGE: 20050310 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAPITAL TRUST INC CENTRAL INDEX KEY: 0001061630 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 946181186 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14788 FILM NUMBER: 05672901 BUSINESS ADDRESS: STREET 1: 410 PARK AVENUE STREET 2: 14TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2126550220 MAIL ADDRESS: STREET 1: PAUL, HASTINGS, JANOFSKY & WALKER LLP STREET 2: 75 E 55TH ST CITY: NEW YORK STATE: NY ZIP: 10022 10-K 1 form10-k.txt DECEMBER 31, 2004 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2004 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition period from to ------------- --------------- Commission File Number 1-14788 Capital Trust, Inc. (Exact name of registrant as specified in its charter) Maryland 94-6181186 -------- ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 410 Park Avenue, 14th Floor, New York, NY 10022 - ------------------------------------------ ----- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 655-0220 -------------- Securities registered pursuant to Section 12(b) of the Act: Name of Each Exchange Title of Each Class on Which Registered ------------------- ------------------- class A common stock, New York Stock Exchange $0.01 par value ("class A common stock") Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to the filing requirements for at least the past 90 days. Yes X No ----- --- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (ss.229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes X No ----- --- MARKET VALUE ------------ The aggregate market value of the outstanding class A common stock held by non-affiliates of the registrant was approximately $158,175,000 as of June 30, 2004 (the last business day of the registrant's most recently completed second fiscal quarter) based on the closing sale price on the New York Stock Exchange on that date. OUTSTANDING STOCK ----------------- As of March 4, 2005 there were 15,107,556 outstanding shares of class A common stock. The class A common stock is listed on the New York Stock Exchange (trading symbol "CT"). Trading is reported in many newspapers as "CapTr". DOCUMENTS INCORPORATED BY REFERENCE ----------------------------------- Part III incorporates information by reference from the registrant's definitive proxy statement to be filed with the Commission within 120 days after the close of the registrant's fiscal year. - ------------------------------------------------------------------------------- CAPITAL TRUST, INC. - ------------------------------------------------------------------------------ PART I - ------------------------------------------------------------------------------
PAGE Item 1. Business 1 Item 2. Properties 7 Item 3. Legal Proceedings 7 Item 4. Submission of Matters to a Vote of Security Holders 7 - ------------------------------------------------------------------------------ PART II - ------------------------------------------------------------------------------ Item 5. Market for the Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 8 Item 6. Selected Financial Data 9 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations 10 Item 7A. Quantitative and Qualitative Disclosures About Market Risk 22 Item 8. Financial Statements and Supplementary Data 23 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 23 Item 9A. Controls and Procedures 23 Item 9B. Other Information 23 - ------------------------------------------------------------------------------ PART III - ------------------------------------------------------------------------------ Item 10. Directors and Executive Officers of the Registrant 24 Item 11. Executive Compensation 24 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 24 Item 13. Certain Relationships and Related Transactions 24 Item 14. Principal Accounting Fees and Services 24 - ------------------------------------------------------------------------------ PART IV - ------------------------------------------------------------------------------ Item 15. Exhibits, Financial Statement Schedules 26 - ------------------------------------------------------------------------------ Signatures 29 Index to Consolidated Financial Statements F-1
F-i PART I - ------------------------------------------------------------------------------ Item 1. Business - ------------------------------------------------------------------------------ Overview We are a fully integrated, self-managed finance and investment management company that specializes in credit-sensitive structured financial products. To date, our investment programs have focused on loans and securities backed by income-producing commercial real estate assets. From the commencement of our finance business in 1997 through December 31, 2004, we have completed over $4.3 billion of real estate-related investments both directly and on behalf of our managed funds. We conduct our operations as a real estate investment trust, or REIT, for federal income tax purposes. Currently, we make balance sheet investments for our own account and manage a series of private equity funds on behalf of institutional and individual investors. Since we commenced our investment management business in March 2000, we have co-sponsored three funds: CT Mezzanine Partners I LLC, CT Mezzanine Partners II LP and CT Mezzanine Partners III, Inc., which we refer to as Fund I, Fund II and Fund III, respectively. Developments during Fiscal Year 2004 On May 11, 2004, we closed on the initial tranche of a direct public offering to designated controlled affiliates of W. R. Berkley Corporation, which we refer to as Berkley. We issued 1,310,000 shares of our class A common stock and stock purchase warrants to purchase 365,000 shares of our class A common stock for a total purchase price of $30.7 million. On June 21, 2004, we closed on the second tranche of the direct public offering and issued an additional 325,000 shares of our class A common stock for a total purchase price of $7.6 million. The warrants to purchase 365,000 shares of our class A common stock, which were set to expire on December 31, 2004, were exercised on September 13, 2004 for a total purchase price of $8.5 million. Pursuant to a director designation right granted to Berkley in the transaction, we appointed Joshua A. Polan to our board of directors. In June and July of 2004, CT Investment Management Co. LLC, our wholly-owned investment management subsidiary, was approved as a Special Servicer by Fitch Ratings, Standard & Poor's and Moody's Investors Service. These approvals allow CT Investment Management Co. to act as a named Special Servicer for CMBS and B Note investments. As Special Servicer, we believe CT Investment Management Co. will be able to increase the control it has in managing certain portions of our portfolio while potentially generating additional fee income. Approval from the rating agencies was based upon, among other things, our experience in managing and working out problem assets, our established asset management policies and procedures and our technology systems. We believe our ability to be a Special Servicer improves the asset management of our existing portfolio, and facilitates our plan to increase our CMBS and B Note investment activity. On July 20, 2004, we closed a $320.8 million issue of collateralized debt obligations, commonly known as CDOs, which were privately offered to institutional investors. In connection with the issuance of the CDOs, we closed on the following related transactions, which together we call the CDO-1 transaction: o we purchased a $251.2 million portfolio of 40 floating rate B Notes and one mezzanine loan from GMAC Commercial Mortgage Corporation; o we contributed those assets, along with $72.9 million of B Notes, mezzanine loans and subordinate CMBS from our own balance sheet, to Capital Trust RE CDO 2004-1 Ltd., our consolidated wholly-owned subsidiary that we refer to as CDO-1; o CDO-1 issued $320.8 million of floating rate CDOs secured by the assets contributed to it; o CDO-1 sold all of the $252.8 million of CDOs that are rated investment grade to third-party investors; and o we acquired and retained all of the $68.1 million of unrated and below investment grade rated CDOs in addition to all of CDO-1's $3.2 million of equity. 1 We consolidate CDO-1 into our financial statements, with the entity's investments shown as loans receivable and the investment grade notes held by third-parties shown as direct liabilities on our balance sheet. As a result of the CDO-1 transaction, our balance sheet assets increased by $251.2 million and we recorded $252.8 million of CDOs as liabilities at the time of the closing. The CDO-1 transaction provided us with a number of significant benefits including: o increased our balance sheet interest earning assets by $251.2 million; o created long-term, non-recourse financing at an all-in borrowing cost that is significantly lower than our pre-existing sources of debt capital; o obtained long-term, floating rate financing that matches both the interest rate index and duration of our assets; o extended the useful life of the financing through a four year reinvestment period during which principal proceeds from the initial CDO assets can be reinvested in qualifying replacement assets; and o established us as a CDO issuer and collateral manager, which we believe will facilitate our issuance of additional CDOs in the future. On July 28, 2004, we closed on a public offering of our class A common stock pursuant to which we sold 1,888,289 shares and certain selling shareholders sold 2,136,711 shares obtained upon the concurrent conversion of $44,871,000 of our outstanding convertible junior subordinated debentures. All of the 4,025,000 shares were sold to the public at a price of $23.75 per share. After payment of underwriting discounts and commissions and expenses, we received net proceeds from the offering of $41.6 million. On September 29, 2004, following our issuance of a notice of redemption to be effected on September 30, 2004, the external holders of the remaining $44,871,000 principal amount of our step up convertible junior subordinated debentures outstanding converted the entire principal amount due thereon into 2,136,711 shares of our class A common stock at a conversion price of approximately $21.00 per share. We have entered into a contract to obtain certain outsourced services from Global Realty Outsourcing, Inc., which we refer to as GRO, a company in which we have an equity investment and on whose board of directors our president and chief executive officer serves. Pursuant to the contract, GRO provides sixteen dedicated employees to assist us in monitoring assets and evaluating potential investments, fifteen of whom are located in Chennai, India. GRO began performing these services for us in April 2004 in advance of concluding negotiation of the definitive agreement. Platform We are a fully integrated, self-managed company that has 24 full-time employees based in New York City. Our senior management team has an average of 19 years of experience in the fields of real estate, credit, capital markets and structured finance. Around this team of professionals, we have developed an entire platform to originate and manage portfolios of credit-sensitive structured products. Founded on our long-standing relationships with borrowers, brokers and first mortgage providers, our extensive origination network produces multiple investment opportunities from which we select only those transactions that we believe exhibit a compelling risk/return profile. Once a transaction that meets our parameters is identified, we apply a disciplined process founded on four elements: o intense credit underwriting; o creative financial structuring; o efficient use of leverage; and o aggressive asset management. The first element, and the foundation of our past and future success, is our expertise in credit underwriting. For each prospective investment, an in-house underwriting team is assigned to perform a ground-up analysis of all aspects of credit risk. Our rigorous underwriting process is embodied in our proprietary credit policies 2 and procedures that detail the due diligence steps from initial client contact through closing. Input and approval is required from our finance, capital markets, credit and legal teams, as well as from various third-parties including our credit providers. Creative financial structuring is the second critical element in our process. Based upon our underwriting, we strive to create a customized structure for each investment that has the necessary real estate credit, interest rate and other applicable protections while meeting the varying needs of our borrowers and partners. We believe our demonstrated ability to structure solutions for our customers gives us a distinct competitive advantage in our market place. The prudent use of leverage is the third integral element of our platform. Leverage can increase returns on equity and enhance portfolio diversification, but can also increase risk. We control this financial risk by actively managing our capital structure, seeking to match the duration and interest rate index of our assets and liabilities and, where appropriate, employing hedging instruments such as interest rate swaps, caps and other interest rate exchange agreements. Our objective is to minimize interest rate risk and optimize the difference between the yield on our assets and the cost of our liabilities to create net interest spread. To achieve our objectives, we pursue innovative debt financing alternatives, such as our use of collateralized debt obligations to finance our balance sheet investments. The final element of our platform is aggressive asset management. We pride ourselves on our active style of managing our portfolios. From closing an investment through its final repayment, our dedicated asset management team is in constant contact with our borrowers, monitoring performance of the collateral and enforcing our rights as necessary. Our designation as a rated Special Servicer will allow us to exercise more direct control over certain of our CMBS and B Note investments. By adhering to these four key elements that define our platform, from July 1997 through December 31, 2004, we have originated over $4.3 billion of real estate-related investments, both directly and on behalf of our managed funds, and limited the loss experience of our investment portfolios to less than 1.0%. Business Model Our business model is designed to produce a unique mix of net interest spread from our balance sheet investments and fee income from our investment management operations. Our goal is to deliver a stable, growing stream of earnings from these two complementary activities. Our current balance sheet investment program focuses on structured commercial real estate debt investments, including B Notes, subordinate CMBS, and small-balance (under $15 million) mezzanine loans. As of December 31, 2004, our interest-earning balance sheet assets (excluding cash, fund investments and other assets) totaled $803.9 million and had a weighted-average unleveraged yield of 7.9%. Our interest-bearing liabilities as of that date totaled $543.0 million and had a weighted-average interest rate cost of 3.7%. We currently manage two private equity funds, CT Mezzanine Partners II LP and CT Mezzanine Partners III, Inc. Both funds were formed to specialize in making large-balance commercial real estate mezzanine loans. Fund II made $1.2 billion of investments in 40 separate transactions during its contractual investment period that commenced in April 2001 and ended in April 2003. As of December 31, 2004, Fund II's remaining investments aggregate $131.9 million, all of which were performing. Fund III held its initial closing in June 2003 and its final closing in August 2003, raising a total of $425 million of committed equity capital. With leverage, we have the capacity to make over $1 billion of investments during Fund III's investment period, which expires in June of 2005. Through December 31, 2004, Fund III has made approximately $800 million of investments, of which $602.4 million remains outstanding as of December 31, 2004. We have made co-investments in Fund II and Fund III, and our wholly-owned taxable REIT subsidiary, CT Investment Management Co., serves as the manager to both funds. In addition to our pro-rata share of income as a co-investor, we earn base management fees and performance-oriented incentive management fees from each fund. We allocate commercial real estate investment opportunities to Fund III that meet the fund's duration, size and leveraged return parameters. Our investment management activities are described further under the caption "Management's Discussion and Analysis of Financial Condition and Results of Operations". 3 We operate our business to qualify as a REIT for federal income tax purposes. Our primary objective in deciding to elect REIT status was to pay dividends to our shareholders on a tax-efficient basis. We manage our balance sheet investments to produce a portfolio that meets the asset and income tests necessary to maintain our REIT qualification and otherwise conduct our investment management business through our wholly-owned subsidiary, CT Investment Management Co., which is subject to federal income tax. Investment Strategies Since 1997, our investment programs have focused on various strategies designed to take advantage of investment opportunities that have developed in the commercial real estate mezzanine sector. These investment opportunities have been created largely by the evolution and growing importance of securitization in the real estate capital markets. With approximately $2.1 trillion outstanding as of 2003, U.S. commercial real estate debt is a large and dynamic market that had traditionally been dominated by institutional lenders such as banks, insurance companies and thrifts making first mortgage loans for retention in their own portfolios. Securitized debt has captured an increasing share of this market, growing from less than 5% of the total amount outstanding in 1993 to approximately 18% by year-end 2003. More importantly, according to industry estimates, CMBS now accounts for roughly 40-50% of annual new originations, with domestic CMBS issuance in 2004 exceeding $93 billion. In addition, many traditional lenders have adopted CMBS standards in their portfolio lending programs, further extending the influence of securitization in the market. The essence of securitization is risk segmentation, whereby whole mortgage loans (or pools of loans) are split into multiple classes and sold to different buyers based on their risk tolerance and return requirements. The most senior classes, which have the lowest risk and therefore the lowest return, are rated investment grade (AAA through BBB-) by the credit rating agencies. Debt that is subordinate to these investment grade classes is either sold as securities rated below investment grade or outside the securitized pools as individual property or portfolio specific loans. In either case, these investments are subordinate to the senior debt but senior to the owner/operator's common equity investment and command a higher yield than the senior indebtedness. These "mezzanine" tranches may carry sub-investment grade ratings or no rating at all. Depending on our assessment of relative value, our real estate investments may take a variety of forms including: o Property Mezzanine Loans -- These are secured property loans that are subordinate to a first mortgage loan, but senior to the owner's equity. A mezzanine loan is evidenced by its own promissory note and is typically made to the owner of the property-owning entity, which is typically the senior loan borrower. It is not secured by the first mortgage on the property, but by a pledge of the mezzanine borrower's ownership interest in the property-owning entity. Subject to negotiated contractual restrictions, the mezzanine lender has the right, following foreclosure, to become the sole indirect owner of the property, subject to the lien of the first mortgage. o B Notes -- These are loans evidenced by a junior participation in a first mortgage against one or more properties; the senior participation is known as an A Note. Although a B Note may be evidenced by its own promissory note, it shares a single borrower and mortgage with the A Note and is secured by the same collateral. B Note lenders have the same obligations, collateral and borrower as the A Note lender and in most instances are contractually limited in rights and remedies in the case of a default. The B Note is subordinate to the A Note by virtue of a contractual arrangement between the A Note lender and the B Note lender. For the B Note lender to actively pursue a full range of remedies, it must, in most instances, purchase the A Note. o Subordinate CMBS -- These commercial mortgage-backed securities are the junior classes of securitized pools of multiple first mortgage loans. Cash flows from the underlying mortgages are aggregated and allocated to the different classes in accordance with their priority ranking, typically ranging from the AAA rated through the unrated, first-loss tranche. Administration and management of the pool are performed by a trustee and servicers, who act on behalf of all holders in accordance with contractual agreements. Our investments generally represent the subordinated tranches ranging from the BBB rated through the unrated class. 4 o Corporate Mezzanine Loans -- These are investments in or loans to real estate-related operating companies, including REITs. Such investments may take the form of secured debt, preferred stock and other hybrid instruments such as convertible debt. Corporate mezzanine loans may finance, among other things, operations, mergers and acquisitions, management buy-outs, recapitalizations, start-ups and stock buy-backs generally involving real estate and real estate-related entities. o First Mortgage Loans -- These are secured property loans evidenced by a first mortgage which is senior to any mezzanine financing and the owner's equity. These loans are typically bridge loans for equity holders who require interim financing until permanent financing can be obtained. Our first mortgage loans are generally not intended to be permanent in nature, but rather are intended to be of a relatively short duration, with extension options as deemed appropriate, and typically require a balloon payment of principal at maturity. We may also originate and fund first mortgage loans in which we intend to sell the senior tranche, thereby creating a property mezzanine loan. We finance single properties, multiple property portfolios and operating companies, with our investment typically representing the portion of the capital structure ranging between 40% and 85% of underlying collateral value. Our objective is to create portfolios which are diversified by investment format, property type and geographic market. The following charts illustrate the diversification achieved from July 1997 through December 31, 2004 in the origination of our investment portfolios. Geographic Location ------------------------- Northeast.............36% Diversified...........19% Southeast.............16% West..................16% Southwest..............8% Midwest................5% Property Type ------------------------- Office................41% Hotel.................20% Retail................17% Mixed Use.............11% Multifamily............8% Other..................3% Investment Type ------------------------- Property Mezzanine....51% B Note................16% CMBS..................15% Corporate Mezzanine...10% First Mortgage.........6% Opportunistic..........2% 5 If carefully underwritten and structured, we believe that portfolios of real estate mezzanine investments can produce superior risk-adjusted returns when compared to both senior debt and direct equity ownership. Business Plan Our business strategy is to continue to grow our balance sheet investments and our third-party assets under management. We expect the growth of our business to be driven primarily by the following activities: o we will continue to make commercial real estate mezzanine investments for our balance sheet; o we will expand our investment management business through additional offerings of subsequent pooled investment vehicles such as the CT Mezzanine Partners funds; and o we may pursue other balance sheet and investment management businesses that leverage our core skills in credit underwriting and financial structuring. Competition We are engaged in a highly competitive business. We compete for loan and investment opportunities with numerous public and private real estate investment vehicles, including financial institutions, specialty finance companies, mortgage banks, pension funds, opportunity funds, REITs and other institutional investors, as well as individuals. Many competitors are significantly larger than us, have well-established operating histories and may have greater access to capital and other resources and may have other advantages over us. In addition, the investment management industry is highly competitive and there are numerous well-established competitors possessing substantially greater financial, marketing, personnel and other resources than us. We compete with other investment management companies in attracting capital for funds under management. Government Regulation Our activities, including the financing of our operations, are subject to a variety of federal and state regulations. In addition, a majority of states have ceilings on interest rates chargeable to certain customers in financing transactions. Employees As of December 31, 2004, we had 24 full-time employees. None of our employees are covered by a collective bargaining agreement and management considers the relationship with our employees to be good. Code of Business Conduct and Ethics and Corporate Governance Documents We have adopted a code of business conduct and ethics that applies to all of our employees, including our principal executive officer and principal financial and accounting officer. This code of business conduct and ethics is designed to comply with SEC regulations and New York Stock Exchange corporate governance rules related to codes of conduct and ethics and is posted on our corporate website at www.capitaltrust.com. A copy of our code of business conduct and ethics is also available free of charge, upon request directed to Investor Relations, Capital Trust, Inc., 410 Park Avenue, 14th Floor, New York, NY 10022. Our board of directors created, revised the charter for and/or reconstituted the membership of the audit, compensation and corporate governance committees of the board, effective immediately following our annual meeting of shareholders that was convened and held on June 17, 2004. Our corporate governance guidelines and the committee charters are posted on our corporate website at www.capitaltrust.com. 6 Website Access to Reports We maintain a website at www.capitaltrust.com. Effective as of January 1, 2003, through our website, we make available free of charge our annual proxy statement, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. - ------------------------------------------------------------------------------ Item 2. Properties - ------------------------------------------------------------------------------ Our principal executive and administrative offices are located in approximately 11,885 square feet of office space leased at 410 Park Avenue, 14th Floor, New York, New York 10022, our telephone number is (212) 655-0220 and our website address is www.capitaltrust.com. Our lease for office space expires in June 2008. We believe that this office space is suitable for our current operations for the foreseeable future. - ------------------------------------------------------------------------------ Item 3. Legal Proceedings - ------------------------------------------------------------------------------ We are not party to any material litigation or legal proceedings, or to the best of our knowledge, any threatened litigation or legal proceedings, which, in our opinion, individually or in the aggregate, would have a material adverse effect on our results of operations or financial condition. - ----------------------------------------------------------------------------- Item 4. Submission of Matters to a Vote of Security Holders - ----------------------------------------------------------------------------- We did not submit any matters to a vote of security holders during the fourth quarter of 2004. 7 PART II - ------------------------------------------------------------------------------ Item 5. Market for the Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities - ------------------------------------------------------------------------------ Our class A common stock is listed for trading on the New York Stock Exchange under the symbol "CT." The table below sets forth, for the calendar quarters indicated, the reported high and low sale prices for the class A common stock as reported on the NYSE composite transaction tape and the per share cash dividends declared on the class A common stock.
High Low Dividend ---- --- -------- 2004 Fourth Quarter........................................................... $ 34.56 $ 27.32 $ 0.50 Third Quarter............................................................ 29.10 23.25 0.45 Second Quarter........................................................... 27.25 22.40 0.45 First Quarter............................................................ 26.15 22.50 0.45 2003 Fourth Quarter........................................................... $ 23.40 $ 19.71 $ 0.45 Third Quarter............................................................ 20.99 18.60 0.45 Second Quarter........................................................... 19.62 14.49 0.45 First Quarter............................................................ 18.75 13.35 0.45 2002 Fourth Quarter........................................................... $ 15.93 $ 12.72 -- Third Quarter............................................................ 15.75 13.35 -- Second Quarter........................................................... 15.60 14.10 -- First Quarter............................................................ 17.25 15.00 --
The last reported sale price of the class A common stock on March 4, 2005 as reported on the NYSE composite transaction tape was $32.78. As of March 4, 2005, there were 1,306 holders of record of the class A common stock. By including persons holding shares in broker accounts under street names, however, we estimate our shareholder base to be approximately 2,926 as of March 4, 2005. No dividends were paid on the class A common stock in 2002. With our decision to elect to be taxed as a REIT, we began paying dividends on our class A common stock in the first quarter of 2003. We generally intend to distribute each year substantially all of our taxable income (which does not necessarily equal net income as calculated in accordance with generally accepted accounting principles) to our shareholders so as to comply with the REIT provisions of the Internal Revenue Code. We intend to make dividend distributions quarterly and, if necessary for REIT qualification purposes, we may need to distribute any taxable income remaining after the distribution of the final regular quarterly dividend each year, together with the first regular quarterly dividend payment of the following taxable year or, at our discretion, in a special dividend distributed prior thereto. Our dividend policy is subject to revision at the discretion of our board of directors. All distributions will be made at the discretion of our board of directors and will depend on our taxable income, our financial condition, our maintenance of REIT status and other factors as our board of directors deems relevant. All dividends declared in 2003 and 2004 are ordinary income. We did not repurchase any of our common stock during the year ended December 31, 2004. 8 - ------------------------------------------------------------------------------ Item 6. Selected Financial Data - ------------------------------------------------------------------------------ The following table sets forth selected consolidated financial data, which was derived from our historical consolidated financial statements included in our Annual Reports on Form 10-K for the years then ended. Certain reclassifications have been made to all periods presented to reflect the application of Financial Accounting Standards Board Interpretation No. 46R on January 1, 2004, following the adoption of which we no longer consolidated CT Convertible Trust I, the entity which had purchased our junior subordinated debentures and issued convertible trust common and preferred securities. We began to conduct our operations to qualify as a REIT for federal income tax purposes for the 2003 fiscal year, and elected REIT status when we filed our 2003 federal tax return on September 15, 2004. This election resulted in a material reduction of our tax liability for 2004 and 2003. As a result, our income tax expense and net income after tax for 2004 and 2003 will not be comparable to our income tax expense and net income after tax for periods prior to 2003. You should read the following information together with "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" and the consolidated financial statements and the notes thereto included in "Item 8. Financial Statements and Supplementary Data".
Years Ended December 31, ------------------------------------------------------------- 2004 2003 2002 2001 2000 ------------ ----------- ----------- ------------------------ STATEMENT OF OPERATIONS DATA: (in thousands, except for per share data) REVENUES: Interest and investment income................... $46,639 $38,577 $47,655 $68,200 $88,875 Income / (loss) from equity investments in affiliated Funds.............................. 2,407 1,526 (2,534) 2,991 1,530 Advisory, special servicing and investment banking fees.......................................... 10 -- 2,207 277 3,920 Gain on sale of investments...................... 300 -- -- -- -- Management and advisory fees from Funds.......... 7,853 8,020 10,123 7,664 373 ------------ ----------- ----------- ------------------------ Total revenues................................ 57,209 48,123 57,451 79,132 94,698 ------------ ----------- ----------- ------------------------ OPERATING EXPENSES: Interest expense................................. 20,141 19,575 34,184 42,856 52,418 General and administrative expenses.............. 15,229 13,320 13,996 15,382 15,439 Depreciation and amortization.................... 1,100 1,057 992 909 902 Net unrealized (gain) / loss on derivative securities and corresponding hedged risk on CMBS -- -- (21,134) 542 -- Net realized (gain) / loss on sale of fixed assets, investments and settlement of derivative securities.................................... -- -- 28,715 -- 64 Unrealized loss on available-for-sale securities for other than temporary impairment........... 5,886 -- -- -- -- Provision for / (recapture of) allowance for possible credit losses........................ (6,672) -- (4,713) 748 5,478 ------------ ----------- ----------- ------------------------ Total operating expenses...................... 35,684 33,952 52,040 60,437 74,301 ------------ ----------- ----------- ------------------------ Income before income tax expense................. 21,525 14,171 5,411 18,695 20,397 Income tax expense............................... (451) 646 15,149 9,325 10,636 ------------ ----------- ----------- ------------------------ NET INCOME / (LOSS).............................. 21,976 13,525 (9,738) 9,370 9,761 Less: Preferred stock dividend and dividend requirement........................... -- -- -- 606 1,615 ------------ ----------- ----------- ------------------------ Net income / (loss) allocable to common stock.... $21,976 $13,525 $(9,738) $8,764 $8,146 ============ =========== =========== ======================== PER SHARE INFORMATION: Net income / (loss) per share of common stock: Basic....................................... $ 2.17 $ 2.27 $ (1.62) $ 1.30 $ 1.05 ============ =========== =========== ======================== Diluted..................................... $ 2.14 $ 2.23 $ (1.62) $ 1.12 $ 0.99 ============ =========== =========== ======================== Dividends declared per share of common stock..... $ 1.85 $ 1.80 $ -- $ -- $ -- ============ =========== =========== ======================== Weighted average shares of common stock outstanding: Basic....................................... 10,141 5,947 6,009 6,722 7,724 ============ =========== =========== ======================== Diluted..................................... 10,277 10,288 6,009 12,041 9,897 ============ =========== =========== ======================== As of December 31, ------------------------------------------------------------- 2004 2003 2002 2001 2000 ------------ ----------- ----------- ------------------------ BALANCE SHEET DATA: Total assets..................................... $877,766 $399,926 $387,759 $683,451 $649,043 Total liabilities................................ 561,269 303,909 303,703 580,823 490,377 Shareholders' equity............................. 316,497 96,017 84,056 102,628 158,666
9 - ------------------------------------------------------------------------------ Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations - ------------------------------------------------------------------------------ Introduction We are a fully integrated, self-managed finance and investment management company that specializes in credit-sensitive structured financial products. To date, our investment programs have focused on loans and securities backed by income-producing commercial real estate assets. From the commencement of our finance business in 1997 through December 31, 2004, we have completed over $4.3 billion of real estate-related investments both directly and on behalf of our managed funds. We conduct our operations as a real estate investment trust, or REIT, for federal income tax purposes. Currently, we make balance sheet investments for our own account and manage a series of private equity funds on behalf of institutional and individual investors. Since we commenced our investment management business in March 2000, we have co-sponsored three funds: CT Mezzanine Partners I LLC, CT Mezzanine Partners II LP and CT Mezzanine Partners III, Inc., which we refer to as Fund I, Fund II and Fund III, respectively. Balance Sheet Overview At December 31, 2003, we had four investments in Federal Home Loan Mortgage Corporation Gold securities with a face value of $19,146,000. These securities were sold during the second quarter of 2004 resulting in a gain of $300,000 to their amortized cost. We held 19 investments in 14 separate issues of commercial mortgage-backed securities with an aggregate face value of $271,757,000 at December 31, 2004. During the year ended December 31, 2004, we purchased four investments in three separate issues of commercial mortgage-backed securities. The securities had a face value of $61,293,000 and were purchased at a discount for $59,551,000. During the year ended December 31, 2004, we received full satisfaction of one of the issues purchased in 2003 for $5,000,000 and received amortization payments of $48,000 on one of the issues purchased in 2004. Commercial mortgage-backed securities with a face value of $61,245,000 earn interest at a variable rate, which averages the London Interbank Offered Rate, or LIBOR, plus 2.28% (4.67% at December 31, 2004). The remaining commercial mortgage-backed securities, $210,512,000 face value, earn interest at fixed rates averaging 7.65% of the face value. We purchased the commercial mortgage-backed securities at discounts. As of December 31, 2004, the remaining discount to be amortized into income over the remaining lives of the securities was $22,338,000. At December 31, 2004, with discount amortization, the commercial mortgage-backed securities earn interest at a blended rate of 8.58% of the face value less the unamortized discount. As of December 31, 2004, the securities were carried at fair value of $247,765,000, reflecting a $3,621,000 unrealized gain to their amortized cost. During the year ended December 31, 2004, we purchased or originated six property mezzanine loans for $77,282,000 and 63 B Notes for $412,420,000, received partial repayments on 34 loans totaling $18,215,000 and one mortgage loan, three property mezzanine loan and 12 B Notes totaling $98,207,000 were satisfied and repaid. We have no outstanding loan commitments at December 31, 2004. At December 31, 2004, we had outstanding loans receivable totaling approximately $556.2 million. At December 31, 2004, we had 67 performing loans receivable with a current carrying value of $553,126,000. Three of the loans totaling $80,729,000 bear interest at an average fixed rate of interest of 10.37%. The 64 remaining loans, totaling $473,928,000, bear interest at a variable rate of interest averaging LIBOR plus 4.91% (7.32% at December 31, 2004). One mortgage loan receivable with an original principal balance of $8,000,000 reached maturity on July 15, 2001 and has not been repaid with respect to principal and interest. In December 2002, the loan was written down to $4,000,000 through a charge to the allowance for possible credit losses. Since the write-down, we have received proceeds of $962,000 reducing the carrying value of the loan to $3,038,000. In accordance with our policy for revenue recognition, income recognition has been suspended on this loan and for the year ended 10 December 31, 2004, $930,000 of potential interest income has not been recorded. All other loans are performing in accordance with their terms. At December 31, 2004, we had investments in Funds of $21,376,000, including $4,901,000 of unamortized costs that were capitalized in connection with entering into our venture agreement with Citigroup Alternative Investments LLC and the commencement of the related fund management business. These costs are being amortized over the lives of the Funds and the venture agreement and are reflected as a reduction in income/(loss) from equity investments in Funds. We utilize borrowings under a committed credit facility, along with repurchase obligations, to finance our balance sheet assets and we utilized CDOs as a source of financing for the first time in 2004 in connection with the CDO-1 transaction. At December 31, 2004, we had $65,176,000 of outstanding borrowings under our $150.0 million credit facility, with $5.8 million of the remaining $84.8 million of available credit available to be borrowed without the need to pledge additional collateral assets. The credit facility provides for advances to fund lender-approved loans and investments made by us. Borrowings under the credit facility are secured by pledges of assets owned by us and bear interest at specified spreads over LIBOR, which spreads vary based upon the perceived risk of the pledged assets. The credit facility provides for margin calls on asset-specific borrowings in the event of asset quality and/or market value deterioration as determined under the credit facility. The credit facility contains customary representations and warranties, covenants and conditions and events of default. Based upon borrowings in place at December 31, 2004, the effective interest rate on the credit facility was LIBOR plus 1.74% (4.02% at December 31, 2004). As of December 31, 2004, we had unamortized capitalized costs of $474,000 that are being amortized over the remaining life of the facility (6.5 months at December 31, 2004). After amortizing these costs to interest expense, the all-in effective borrowing cost on the facility as of December 31, 2004 was 5.37% based upon the amount currently outstanding on the credit facility. At December 31, 2003, we had borrowed $11,651,000 under a $75 million term redeemable securities contract. This term redeemable securities contract expired on February 28, 2004 and was repaid by refinancing the previously financed assets under the credit facility. On August 17, 2004, we entered into a repurchase obligation with an existing counterparty, pursuant to the terms of a master repurchase agreement that allows us to incur $50.0 million of repurchase obligations to finance specific assets. At December 31, 2004, the master repurchase agreement was utilized to finance nine loans. At December 31, 2004, we have sold loans with a book and market value of $32,215,000 and have a liability to repurchase these assets for $20,424,000. The master repurchase agreement terminates on September 1, 2007, and bears interest at specified rates over LIBOR based upon each asset included in the obligation. At December 31, 2004, we are obligated to three counterparties under repurchase agreements and have sold loans with a book and market value of $341,993,000 and have a liability to repurchase these assets for $225,091,000. Based upon advances in place at December 31, 2004, the blended rate on the repurchase obligations is LIBOR plus 1.02% (3.32% at December 31, 2004). We had unamortized capitalized costs of $316,000 as of December 31, 2004, which are being amortized over the remaining lives of the repurchase obligations. After amortizing these costs to interest expense based upon the amount currently outstanding on the repurchase obligations, the all-in effective borrowing cost on the repurchase obligations as of December 31, 2004 was 3.41%. We expect to enter into new repurchase obligations at their maturity or settle the repurchase obligations with the proceeds from the repayment of the underlying financed asset. On July 20, 2004, CDO-1 issued six tranches of investment grade rated CDOs with a principal amount of $252,778,000 to third party investors in the CDO-1 transaction described under "Item 1 - Business - Developments during Fiscal Year 2004" above. We purchased through a wholly-owned subsidiary the four remaining tranches of unrated and below investment grade rated CDOs and the equity interests issued by CDO-1. CDO-1 holds assets, consisting of loans, CMBS and cash totaling $324,074,000, which serves as collateral for the CDOs. The six investment grade tranches were issued with floating rate coupons with a combined weighted average rate of LIBOR + 0.62% (3.03% at December 31, 2004) and have a remaining expected life of 4.5 years as of December 31, 2004. We incurred $5,508,000 of issuance costs which will be amortized on a level yield basis over the average life of CDO-1. CDO-1 was structured to match fund the 11 cash flows from a significant portion of our existing and newly acquired B notes, mezzanine loans and CMBS. For accounting purposes, CDO-1 is consolidated in our financial statements. The six investment grade tranches are treated as a secured financing, and are non-recourse to us. Proceeds from the sale of the six investment grade tranches issued by CDO-1 were used to purchase a $251.2 million portfolio of B notes and mezzanine loans from a third party which were contributed to and pledged as collateral to secure repayment of the CDOs. The $72.9 million remaining assets pledged as collateral were contributed from our existing portfolio of loans and CMBS. We were party to four cash flow interest rate swaps with a total notional value of $134 million as of December 31, 2004. These cash flow interest rate swaps effectively convert floating rate debt to fixed rate debt, which is utilized to finance assets that earn interest at fixed rates. We receive a rate equal to LIBOR (2.30% at December 31, 2004) and pay an average rate of 4.15%. The market value of the swaps at December 31, 2004 was $194,000, which is recorded as an interest rate hedge asset and as a component of accumulated other comprehensive gain/(loss) on our balance sheet. In January 2003, the Financial Accounting Standards Board issued Interpretation No. 46, "Consolidation of Variable Interest Entities," an interpretation of Accounting Research Bulletin 51. Interpretation No. 46 provides guidance on identifying entities for which control is achieved through means other than through voting rights, and how to determine when and which business enterprise should consolidate a variable interest entity. In addition, Interpretation No. 46 requires that both the primary beneficiary and all other enterprises with a significant variable interest in a variable interest entity make additional disclosures. The transitional disclosure requirements took effect almost immediately and are required for all financial statements initially issued after January 31, 2003. In December 2003, the Financial Accounting Standards Board issued a revision of Interpretation No. 46, Interpretation No. 46R, to clarify the provisions of Interpretation No. 46. The application of Interpretation No. 46R is effective for public companies, other than small business issuers, after March 15, 2004. We have evaluated all of our investments and other interests in entities that may be deemed variable interest entities under the provisions of Interpretation No. 46 and have concluded that no additional entities need to be consolidated. In evaluating Interpretation No. 46R, we concluded that we could no longer consolidate CT Convertible Trust I, the entity which had purchased our step up convertible junior subordinated debentures and issued company-obligated, mandatory redeemable, convertible trust common and preferred securities. In 1998, we had issued the convertible junior subordinated debentures and had purchased the convertible trust common securities. The consolidation of CT Convertible Trust I resulted in the elimination of both the convertible junior subordinated debentures and the convertible trust common securities with the convertible trust preferred securities being reported on our balance sheet after liabilities but before equity and the related expense being reported on the income statement below income taxes and net of income tax benefits. After the deconsolidation, we reported the convertible junior subordinated debentures as liabilities and the convertible trust common securities as other assets. The expense from the payment of interest on the debentures was reported as interest and related expenses on convertible junior subordinated debentures and the income received from our investment in the common securities was reported as a component of interest and related income. We have elected to restate prior periods for the application of Interpretation 46R. The restatement was effected by a cumulative type change in accounting principle on January 1, 2002. There was no change to previously reported net income as a result of such restatement. As of December 31, 2004, the entire $92,524,000 aggregate principal amount of our convertible junior subordinated debentures outstanding at December 31, 2003 had been redeemed or converted into class A common stock. Certain holders converted $44,871,000 of the principal amount due on the convertible junior subordinated debentures in connection with the closing of our public offering of class A common stock on July 28, 2004. On September 29, 2004, following our issuance of a notice of redemption to be effected on September 30, 2004, holders of $44,871,000 principal amount of the convertible junior subordinated debentures outstanding converted the principal amount due thereon into 2,136,711 shares of our class A common stock at a conversion price of approximately $21.00 per share. The remaining $2,982,000 of the convertible junior subordinated debentures outstanding were repaid to the Trust and then the Trust redeemed the common securities held by us. In 2000, we announced an open market share repurchase program under which we may purchase, from time to time, up to 666,667 shares of our class A common stock. Since that time the authorization has been 12 increased by the board of directors to purchase cumulatively up to 2,366,923 shares of class A common stock. In December 31, 2004 we had 666,339 shares remaining authorized for repurchase under the program. We did not repurchase any of our common stock during the year ended December 31, 2004. At December 31, 2004, we had 15,052,262 shares of our class A common stock outstanding. Investment Management Overview We operated principally as a balance sheet investor until the start of our investment management business in March 2000 when we entered into a venture with affiliates of Citigroup Alternative Investments to co-sponsor and invest capital in a series of commercial real estate mezzanine investment funds managed by us. Pursuant to the venture agreement, we have co-sponsored Fund I, Fund II and Fund III. We have capitalized costs of $4,901,000, net, from the formation of the venture and the Funds that are being amortized over the remaining anticipated lives of the Funds and the related venture agreement. Fund I commenced its investment operations in May 2000 with equity capital supplied solely by Citigroup Alternative Investments (75%) and us (25%). From May 11, 2000 to April 8, 2001, the investment period for the fund, Fund I completed $330 million of total investments in 12 transactions. On January 31, 2003, we purchased the interest in Fund I held by an affiliate of our co-sponsor, Citigroup Alternative Investments LLC, and began consolidating the operations of Fund I in our consolidated financial statements. Fund II had its initial closing on equity commitments on April 9, 2001 and its final closing on August 7, 2001, ultimately raising $845.2 million of total equity commitments, including $49.7 million (5.9%) from us and $198.9 million (23.5%) from Citigroup Alternative Investments. Third-party private equity investors, including public and corporate pension plans, endowment funds, financial institutions and high net worth individuals, made the balance of the equity commitments. During its two-year investment period, which expired on April 9, 2003, Fund II invested $1.2 billion in 40 separate transactions. Fund II utilizes leverage to increase its return on equity, with a target debt-to-equity ratio of 2:1. Total capital calls during the investment period were $329.0 million. CT Investment Management Co. LLC, our wholly-owned taxable REIT subsidiary, acts as the investment manager to Fund II and receives 100% of the base management fees paid by the fund. As of April 9, 2003, the end of the Fund II investment period, CT Investment Management Co. began earning annual base management fees of 1.287% of invested capital. Based upon Fund II's invested capital at December 31, 2004, the date upon which the calculation for the next quarter is based, CT Investment Management Co. will earn base management fees of $181,000 for the quarter ending March 31, 2005. We and Citigroup Alternative Investments, through our collective ownership of the general partner, are also entitled to receive incentive management fees from Fund II if the return on invested equity is in excess of 10% after all invested capital has been returned. The Fund II incentive management fees are split equally between Citigroup Alternative Investments and us. We will pay 25% of our share of the Fund II incentive management fees as long-term incentive compensation to our employees. No such incentive fees have been earned at December 31, 2004 and as such, no amount of such potential fees has been accrued as income in our financial statements. The amount of incentive fees to be received in the future will depend upon a number of factors, including the level of interest rates and the fund's ability to generate returns in excess of 10%, which is in turn impacted by the duration and ultimate performance of the fund's assets. Potential incentive fees received as Fund II winds down could result in significant additional income from operations in certain periods during which such payments can be recorded as income. If Fund II's assets were sold and liabilities were settled on January 1, 2005 at the recorded book value, and the fund's equity and income were distributed, we would record approximately $9.5 million of gross incentive fees. We do not anticipate making any additional equity contributions to Fund II or its general partner. Our net investment in Fund II and its general partner at December 31, 2004 was $5.5 million. As of December 31, 2004, Fund II had 10 outstanding loans and investments totaling $131.9 million, all of which were performing in accordance with the terms of their agreements. On June 2, 2003, Fund III effected its initial closing on equity commitments and on August 8, 2003, its final closing, raising a total of $425.0 million in equity commitments. Our equity commitment was $20.0 million (4.7%) and Citigroup Alternative Investments' equity commitment was $80.0 million (18.8%), with the balance made by third-party private equity investors. From the initial closing through December 31, 2004, 13 we have made equity investments in Fund III of $11,260,000. Through December 31, 2004, Fund III had made loans and investments of approximately $800 million and as of December 31, 2004, Fund III had nineteen outstanding loans and investments totaling $602.4 million, all of which were performing in accordance with the terms of their agreements. CT Investment Management Co. receives 100% of the base management fees from Fund III calculated at a rate equal to 1.42% per annum of committed capital during Fund III's two-year investment period, which expires June 2, 2005, and 1.42% of invested capital thereafter. Based upon Fund III's $425.0 million of total equity commitments, CT Investment Management Co. will earn annual base management fees of $6.0 million during the investment period. We and our co-sponsor are also entitled to receive incentive management fees from Fund III if the return on invested equity is in excess of 10% after all invested capital has been returned. We will receive 62.5% and our co-sponsor will receive 37.5% of the total incentive management fees. We will distribute a portion of our share (up to 40%) of the Fund III incentive management fees as long-term incentive compensation to our employees. Year Ended December 31, 2004 Compared to Year Ended December 31, 2003 We reported net income of $21,976,000 for the year ended December 31, 2004, an increase of $8,451,000 from the net income of $13,525,000 for the year ended December 31, 2003. These increases were primarily the result of an increase in net interest income from loans and other investments. In 2004, we raised significant new capital, increased interest earning assets by $442 million, and financed our business more efficiently through the CDO-1 transaction. As a result, debt costs as a percentage of interest income have decreased. The significance of the more efficient financing is further demonstrated when $2.8 million of prepayment penalties which were collected in 2003 are eliminated from interest income for comparison purposes. Interest and related income from loans and other investments amounted to $46,561,000 for the year ended December 31, 2004, an increase of $8,037,000 from the $38,524,000 amount for the year ended December 31, 2003. Average interest-earning assets increased from approximately $359.5 million for the year ended December 31, 2003 to approximately $552.9 million for the year ended December 31, 2004. The average interest rate earned on such assets decreased from 10.7% for the year ended December 31, 2003 to 8.4% for the year ended December 31, 2004. During the year ended December 31, 2003, we recognized $2.8 million in additional income on the early repayment of loans. Without this additional interest income, the average earning rate for the 2003 year would have been 9.9%. The decrease in rates that occurred was due to the repayment of two fixed rates loans (which earned interest at rates in excess of the portfolio average), a change in the mix of our investment portfolio to include lower risk B Notes in 2004 (which generally carry lower interest rates than mezzanine loans) and a general decrease in spreads being obtained on newly originated investments, partially offset by a higher average LIBOR rate, which increased by 0.3% to 1.5% for the 2004 year. We utilize our existing credit facility, collateralized debt obligations and repurchase obligations to finance our interest-earning assets. Interest and related expenses on secured debt amounted to $13,724,000 for the year ended December 31, 2004, an increase of $3,879,000 from the $9,845,000 amount for the year ended December 31, 2003. The increase in expense was due to an increase in the amount of average interest-bearing liabilities outstanding from approximately $193.8 million for the year ended December 31, 2003 to approximately $333.5 million for the year ended December 31, 2004, offset partially by a decrease in the average rate paid on interest-bearing liabilities from 5.1% to 4.1% for the same periods. The decrease in the average rate is substantially due to the use of collateralized debt obligations to finance a large portion of the portfolio at lower rates than the credit facility and term redeemable securities contract, partially offset by the increase in average LIBOR. We also utilized the convertible junior subordinated debentures to finance our interest-earning assets. During the year ended December 31, 2004 and 2003, we recognized $6,417,000 and $9,730,000, respectively, of expenses related to the convertible junior subordinated debentures. The decrease results from the conversion of one half of the principal amount due on the debentures into common stock on July 28, 2004 and the conversion of the remaining debentures into common stock on September 29, 2004. 14 Other revenues increased $1,049,000 from $9,599,000 for the year ended December 31, 2003 to $10,648,000 for the year ended December 31, 2004. The increase is primarily due to the receipt of management fees from Fund III for the full year in 2004 as compared to the receipt of fees for only part of the year in 2003, as Fund III commenced its investment period in June 2003. The increase also resulted from an increase in earnings from our equity investment in Fund III and the recognition of a $300,000 gain on the sale of available-for-sale securities. This was partially offset by a decrease in the management fees from Fund II, due to lower levels of investment in 2004 as the fund winds down. General and administrative expenses increased $1,909,000 to $15,229,000 for the year ended December 31, 2004 from $13,320,000 for the year ended December 31, 2003. The increase in general and administrative expenses was primarily due to increases in employee compensation and benefits, internal control documentation and testing costs in excess of $500,000, and additional expenses related to the services provided under the GRO contract, offset by reduced legal costs. On at least a quarterly basis, management reevaluates the reserve for possible credit losses based upon our current portfolio of loans. Each loan in our portfolio is evaluated using our proprietary loan risk rating system, which considers loan to value, debt yield, cash flow stability, exit plan, sponsorship, loan structure and any other factors necessary to assess the likelihood of delinquency or default. If we believe that there is a potential for delinquency or default, a downside analysis is prepared to estimate the value of the collateral underlying our loan, and this potential loss is multiplied by the likelihood of default. Based upon our detailed review at December 31, 2004, we concluded that a reserve for possible credit losses was no longer warranted and the reserve was recaptured. Our CMBS investments are carried as available for sale, and are therefore valued at their estimated fair value with net unrealized gains or losses reported as a component of accumulated other comprehensive income/(loss) in shareholders' equity, unless an other than temporary impairment is deemed to have occurred. During the fourth quarter of 2004, changes in our expected cash flow on two of our CMBS investments resulted in our concluding that these CMBS had incurred other than temporary impairment and as a result, we recorded a charge of $5.9 million through the income statement to record these investments at the current market value. We expect a full recovery from our other securities and did not recognize any other than temporary impairment on the remaining CMBS investments. We have made an election to be taxed as a REIT under Section 856(c) of the Internal Revenue Code of 1986, as amended, commencing with the tax year ending December 31, 2003. As a REIT, we generally are not subject to federal income tax. To maintain qualification as a REIT, we must distribute at least 90% of our REIT taxable income to our shareholders and meet certain other requirements. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax on our taxable income at regular corporate rates. We may also be subject to certain state and local taxes on our income and property. Under certain circumstances, federal income and excise taxes may be due on our undistributed taxable income. At December 31, 2004 and 2003, we were in compliance with all REIT requirements and, as such, have not provided for income tax expense on our REIT taxable income for the years ended December 31, 2004 and 2003. We also have taxable REIT subsidiaries which are subject to tax at regular corporate rates. During the year ended December 31, 2004, we recorded a $451,000 income tax benefit resulting from losses generated by our taxable REIT subsidiaries. During the year ended December 31, 2003, we recorded $646,000 of income tax expense for income that was earned by our taxable REIT subsidiaries. Year Ended December 31, 2003 Compared to Year Ended December 31, 2002 We reported net income of $13,525,000 for the year ended December 31, 2003, an increase of $23,263,000 from the net loss of $9,738,000 for the year ended December 31, 2002. This increase was primarily the result of certain transactions in 2002 which reduced net income, including the settlement of three cash flow hedges resulting in a $6.7 million charge to earnings, the write-down of deferred tax assets as a result of our decision to elect REIT status for 2003, the write-down of a loan in Fund I which caused a loss from equity investments in funds and the inability to utilize capital losses generated in 2002 to reduce current taxes. Also contributing to the increase in net income was the reduction in income taxes in 2003 in connection with our decision to elect REIT status. These increases were partially offset by a recapture of the allowance for possible credit losses in 2002. 15 Interest and related income from loans and other investments amounted to $38,246,000 for the year ended December 31, 2003, a decrease of $8,833,000 from the $47,079,000 amount for the year ended December 31, 2002. Average interest-earning assets decreased from approximately $473.7 million for the year ended December 31, 2002 to approximately $356.8 million for the year ended December 31, 2003. The average interest rate earned on such assets increased from 9.9% in 2002 to 10.7% in 2003. During the year ended December 31, 2003 and December 31, 2002, the Company recognized $2.8 million and $1.6 million, respectively, in additional income on the early repayment of loans and investments. Without this additional interest income, the earning rate for the 2003 period would have been 9.9% versus 9.6% for the 2002 period. LIBOR rates averaged 1.2% for the year ended December 31, 2003 and 1.8% for the year ended December 31, 2002, a decrease of 0.6%. The portion of our average assets that earn interest at fixed rates did not decrease proportionately to the decrease in assets that earn interest at variable rates in 2003, which served to offset the decrease in earnings from the decrease in the average LIBOR rate. Interest and related expenses amounted to $9,845,000 for the year ended December 31, 2003, a decrease of $8,124,000 from the $17,969,000 amount for the year ended December 31, 2002. The decrease in expense was due to a decrease in the amount of average interest-bearing liabilities outstanding from approximately $260.0 million for the year ended December 31, 2002 to approximately $193.8 million for the year ended December 31, 2003, and a decrease in the average rate on interest-bearing liabilities from 6.9% to 5.1% for the same periods. The decrease in the average rate is substantially due to the decrease in swap levels and rates and the increased use of repurchase agreements as a percentage of total debt in the 2003 period at lower spreads to LIBOR than the credit facility utilized in the 2002 period. During the year ended December 31, 2003 and 2002, we recognized $9,730,000 and $16,192,000, respectively, of net expenses related to our outstanding step up convertible junior subordinated debentures. This amount consisted of distributions to the holders totaling $9,252,000 and $14,887,000, respectively, and amortization of discount and origination costs totaling $478,000 and $1,305,000, respectively, during the year ended December 31, 2003 and 2002. The decrease in the distribution amount and amortization of discount and origination costs resulted from the elimination of the distributions and discount and fees on the non-convertible amount of the convertible trust preferred securities, which was redeemed on September 30, 2002. Other revenues decreased $325,000 from $9,924,000 for the year ended December 31, 2002 to $9,599,000 for the year ended December 31, 2003. In 2002, Fund I increased its allowance for possible credit losses by establishing a specific reserve for the single non-performing loan it was carrying. The loss from equity investments in Funds during the year ended December 31, 2002 was primarily due to this additional expense. On January 31, 2003, we purchased from affiliates of Citigroup Alternative Investments their 75% interest in Fund I and began consolidating the operations of Fund I in our consolidated financial statements, which further reduced earnings from equity investments in Funds. On January 1, 2003, the general partner of Fund II (owned by affiliates of us and Citigroup Alternative Investments) voluntarily reduced by 50% the management fees charged to Fund II for the remainder of the investment period due to a lower than expected level of deployment of the Fund's capital. This, along with the reduction in income when we began charging management fees on invested capital for Fund II, partially offset by the management fees charged to Fund III, reduced our management and advisory fees from Funds by $2.1 million for the period. Also in 2002, we earned a $2.0 million fee from our final advisory assignment. General and administrative expenses decreased $676,000 to $13,320,000 for the year ended December 31, 2003 from $13,996,000 for the year ended December 31, 2002. The decrease in general and administrative expenses was primarily due to reduced employee compensation. We employed an average of 25 employees during the year ended December 31, 2003 and 27 during the year ended December 31, 2002. During the year ended December 31, 2002, we recaptured $4,713,000 of our previously established allowance for possible credit losses. We deemed this recapture necessary due to the substantial reduction in the loan portfolio and a general reduction in the default risk of the loans remaining based upon current conditions. At December 31, 2003, we were in compliance with all REIT requirements and as such, only provided for income tax expense on taxable income attributed to our taxable REIT subsidiaries in 2003. 16 Liquidity and Capital Resources At December 31, 2004, we had $24,583,000 in cash. Our primary sources of liquidity for 2005 are expected to be cash on hand, cash generated from operations, principal and interest payments received on loans and investments, and additional borrowings under our credit facility, CDOs and repurchase obligations. We also believe these sources of capital will be adequate to meet future cash requirements in 2005. We expect that during 2005, we will use a significant amount of our available capital resources to satisfy capital contributions required pursuant to our equity commitments to Fund III and to originate or purchase new loans and investments for our balance sheet. We intend to continue to employ leverage on our balance sheet assets to enhance our return on equity. We experienced a net increase in cash of $15,845,000 during the year ended December 31, 2004, compared to a net decrease of $1,448,000 during the year ended December 31, 2003. Cash provided by operating activities during the year ended December 31, 2004 was $19,580,000, compared to $15,802,000 during the same period of 2003. For the year ended December 31, 2004, cash used in investing activities was $416,707,000, compared to $5,716,000 of cash provided during the same period in 2003. The change was primarily due to our new loan and investment activity totaling $549.0 million for the year ended December 31, 2004, a large percentage of which came from our purchase of a $251.2 million portfolio of loans from GMAC Commercial Mortgage Corporation in connection with the CDO-1 transaction. We financed the new investment activity with additional borrowings under our credit facility, repurchase obligations and the CDOs issued in the CDO-1 transaction. This, along with the cash received from our direct share placement to Berkley and the public offering of shares we closed on July 28, 2004, accounted for substantially all of the change in the net cash activity from financing activities. During the investment periods for Fund I and Fund II, we generally did not originate or acquire loans or commercial mortgage-backed securities directly for our own balance sheet portfolio. When the Fund II investment period ended, we began originating loans and investments for our own account that were not targeted for investment by Fund III. We expect to use available working capital to make contributions to Fund III or any other funds sponsored by us as and when required by the equity commitments made by us to such funds. At December 31, 2004, we had outstanding borrowings under our credit facility of $65,176,000, collateralized debt obligations of $252,778,000 and outstanding repurchase obligations totaling $225,091,000. The terms of these agreements are described above under the caption "Balance Sheet Overview". At December 31, 2004, we had pledged assets that enable us to borrow an additional $5.9 million and had unpledged assets of $74.3 million, which when pledged will generate approximately $55 million of additional liquidity. We had $235.5 million of credit available for the financing of new and existing unpledged assets pursuant to these sources of financing. Additional liquidity will be created when assets that are currently pledged as collateral for the credit facility and repurchase obligations are pledged to existing and newly issued CDOs, as the percentage of collateral value that can be financed, or advance rates, pursuant to the CDO's are generally higher. 17 The following table sets forth information about our contractual obligations as of December 31, 2004:
Contractual Obligations Payment due by period ------------------------------------------------------------------ Less than More than 5 Total 1 year 1-3 years 3-5 years years ----- ------ --------- --------- ------------ (in thousands) Long-Term Debt Obligations Credit Facility $ 65,176 $ 65,176 $ -- $ -- $ -- Repurchase obligations 225,091 25,732 199,359 -- -- Collateralized debt obligations 252,778 -- -- -- 252,778 Operating Lease Obligations 3,413 975 1,950 488 -- Commitment to Fund III (1) 9,675 9,675 -- -- -- ----------- ----------- ------------ --------- ---------- Total (2) $ 556,133 $ 101,558 $ 201,309 $ 488 $ 252,778 =========== =========== ============ ========= ==========
- --------------------- (1) Fund III's investment period continues until June 2005 at which time our equity commitment to the fund expires. While we do not believe that all of the equity commitment will be called, we have presented it if all of the commitment is called prior to the expiration. (2) We are also subject to interest rate swaps for which we can not estimate future payments due. Off-Balance Sheet Arrangements We have no off-balance sheet arrangements. Impact of Inflation Our operating results depend in part on the difference between the interest income earned on our interest-earning assets and the interest expense incurred in connection with our interest-bearing liabilities. Changes in the general level of interest rates prevailing in the economy in response to changes in the rate of inflation or otherwise can affect our income by affecting the spread between our interest-earning assets and interest-bearing liabilities, as well as, among other things, the value of our interest-earning assets and our ability to realize gains from the sale of assets and the average life of our interest-earning assets. Interest rates are highly sensitive to many factors, including governmental monetary and tax policies, domestic and international economic and political considerations, and other factors beyond our control. We employ the use of correlated hedging strategies to limit the effects of changes in interest rates on our operations, including engaging in interest rate swaps and interest rate caps to minimize our exposure to changes in interest rates. There can be no assurance that we will be able to adequately protect against the foregoing risks or that we will ultimately realize an economic benefit from any hedging contract into which we enter. Critical Accounting Policies Changes in management judgment, estimates and assumptions could have a material effect on our consolidated financial statements. Management has the obligation to ensure that its policies and methodologies are in accordance with generally accepted accounting principles. During 2004, management reviewed and evaluated its critical accounting policies and believes them to be appropriate. Our accounting policies are described in Note 5 to our consolidated financial statements. The following is a summary of our accounting policies that we believe are the most affected by management judgments, estimates and assumptions: Securities Available-for-sale We have designated our investments in commercial mortgage-backed securities and certain other securities as available-for-sale. Available-for-sale securities are carried at estimated fair value with the net unrealized gains or losses reported as a component of accumulated other comprehensive income/(loss) in shareholders' equity. Many of these investments are relatively illiquid and management must estimate their values. In making these estimates, management utilizes market prices provided by dealers who make markets in these securities, but may, under certain circumstances, adjust these valuations based on management's judgment. Changes in the valuations do not affect our reported income or cash flows, but impact shareholders' equity and, accordingly, book value per share. 18 We account for CMBS under Emerging Issues Task Force 99-20, "Recognition of Interest Income and Impairment on Purchased and Retained Beneficial Interests in Securitized Financial Assets". Under Emerging Issues Task Force 99-20, when significant changes in estimated cash flows from the cash flows previously estimated occur due to actual prepayment and credit loss experience and the present value of the revised cash flows using the current expected yield is less than the present value of the previously estimated remaining cash flows, adjusted for cash receipts during the intervening period, an other-than-temporary impairment is deemed to have occurred. Accordingly, the security is written down to fair value with the resulting change being included in income and a new cost basis established with the original discount or premium written off when the new cost basis is established. In accordance with this guidance, on a quarterly basis, when significant changes in estimated cash flows from the cash flows previously estimated occur due to actual prepayment and credit loss experience, we calculate a revised yield based on the current amortized cost of the investment, including any other-than-temporary impairments recognized to date, and the revised cash flows. The revised yield is then applied prospectively to recognize interest income. Management must also assess whether unrealized losses on securities reflect a decline in value that is other than temporary, and, accordingly, write the impaired security down to its fair value, through a charge to earnings. We have assessed our securities to first determine whether there is an indication of possible other than temporary impairment and then where an indication exists to determine if other than temporary impairment did in fact exist. Significant judgment of management is required in this analysis that includes, but is not limited to, making assumptions regarding the collectibility of the principal and interest, net of related expenses, on the underlying loans. Income on these available-for-sale securities is recognized based upon a number of assumptions that are subject to uncertainties and contingencies. Examples of these include, among other things, the rate and timing of principal payments, including prepayments, repurchases, defaults and liquidations, the pass-through or coupon rate and interest rate fluctuations. Additional factors that may affect our reported interest income on our mortgage-backed securities include interest payment shortfalls due to delinquencies on the underlying mortgage loans and the timing and magnitude of credit losses on the mortgage loans underlying the securities that are a result of the general condition of the real estate market, including competition for tenants and their related credit quality, and changes in market rental rates. These uncertainties and contingencies are difficult to predict and are subject to future events that may alter the assumptions. Loans Receivable and Provision for Loan Losses We purchase and originate commercial mortgage and mezzanine loans to be held as long-term investments at amortized cost. Management must periodically evaluate each of these loans for possible impairment. Impairment is indicated when it is deemed probable that we will not be able to collect all amounts due according to the contractual terms of the loan. If a loan were determined to be permanently impaired, we would write down the loan through a charge to the reserve for possible credit losses. Given the nature of our loan portfolio and the underlying commercial real estate collateral, significant judgment of management is required in determining permanent impairment and the resulting charge to the reserve, which includes but is not limited to making assumptions regarding the value of the real estate that secures the mortgage loan. Our accounting policies require that an allowance for estimated credit losses be reflected in our financial statements based upon an evaluation of known and inherent risks in our mortgage and mezzanine loans. Quarterly, management reevaluates the reserve for possible credit losses based upon our current portfolio of loans. Each loan in our portfolio is evaluated using our loan risk rating system which considers loan to value, debt yield, cash flow stability, exit plan, loans sponsorship, the loan structure and any other factors necessary to assess the loans likelihood of delinquency or default. If we believe that there is a potential for delinquency or default, a downside analysis is prepared to estimate the value of the collateral underlying our loan, and this potential loss is multiplied by the default likelihood. Actual losses, if any, could ultimately differ from these estimates. Quarterly, management reevaluates the reserve for possible credit losses based upon our current portfolio of loans. Each loan in our portfolio is evaluated using our loan risk rating system which considers loan to value, debt yield, cash flow stability, exit plan, loans sponsorship, the loan structure and any other factors necessary to assess the likelihood of delinquency or default. If we believe that there is a potential for delinquency or default, a downside analysis is prepared to estimate the value of the collateral underlying our loan, and this potential loss is multiplied by the default likelihood. A detailed review of the entire portfolio 19 was completed at December 31, 2004 and certain loans that we previously had specific concerns about were either repaid or the conditions which caused the concern were eliminated. Based upon the changes in conditions of these loans and the evaluations completed on the remainder of the portfolio, we concluded that a reserve for possible credit losses was no longer warranted and the reserve was recaptured. Revenue Recognition Interest income for our loans and investments is recognized over the life of the investment using the effective interest method and recognized on the accrual basis. Fees received in connection with loan commitments, net of direct expenses, are deferred until the loan is advanced and are then recognized over the term of the loan as an adjustment to yield. Fees on commitments that expire unused are recognized at expiration. Exit fees are also recognized over the estimated term of the loan as an adjustment to yield. Purchased discounts for credit quality are amortized over the estimated term of the loan as an adjustment to yields. Cash flows received in excess of original estimates are recognized prospectively as an adjustment to yield. Income recognition is generally suspended for loans at the earlier of the date at which payments become 90 days past due or when, in the opinion of management, a full recovery of income and principal becomes doubtful. Income recognition is resumed when the loan becomes contractually current and performance is demonstrated to be resumed. Fees from investment management services and special servicing are recognized when earned on an accrual basis. Fees from professional advisory services are generally recognized at the point at which all of our services have been performed and no significant contingencies exist with respect to entitlement to payment. Fees from asset management services are recognized as services are rendered. We account for incentive fees we can potentially earn from the Funds in accordance with Method 1 of Emerging Issues Task Force Topic D-96. Under Method 1, no incentive income is recorded until all contingencies have been eliminated. Method 1 is the preferred method as it eliminates the potential that revenue will be recognized in one quarter and reversed in a future quarter. Incentive income received prior to that date is recorded as unearned income (a liability). No incentive fees have been earned at December 31, 2004 and as such, no amount of such potential fees has been accrued as income in our financial statements. The amount of incentive fees to be received in the future will depend upon a number of factors, including the level of interest rates and the fund's ability to generate returns in excess of 10%, which is in turn impacted by the duration and ultimate performance of the fund's assets. Potential incentive fees received as Fund II winds down could result in significant additional income from operations in certain periods during which such payments can be recorded as income. If Fund II's assets were sold and liabilities were settled on January 1, 2005 at the recorded book value, and the fund's equity and income were distributed, we would record approximately $9.5 million of gross incentive fees. Accounting for Stock-Based Compensation We comply with the provisions of the Financial Accounting Standards Board's Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation". Statement of Financial Accounting Standards No. 123 encourages the adoption of a new fair-value based accounting method for employee stock-based compensation plans. Statement of Financial Accounting Standards No. 123 also permits companies to continue accounting for stock-based compensation plans as prescribed by Accounting Principles Board Opinion No. 25. However, companies electing to continue accounting for stock-based compensation plans under Accounting Principles Board Opinion No. 25, must make pro forma disclosures as if they adopted the cost recognition requirements under Statement of Financial Accounting Standards No. 123. Through December 31, 2003, we continued to account for stock-based compensation under Accounting Principles Board Opinion No. 25. Accordingly, no compensation cost has been recognized for the years ended December 31, 2003 and 2002 for awards under our stock plans in the accompanying consolidated statements of operations as the exercise price of the stock options granted thereunder equaled the market price of the underlying stock on the date of the grant. During the fourth quarter of 2004, we elected to adopt the fair value recognition provisions of Statement of Financial Accounting Standards No. 123 using 20 the modified prospective method provided in Statement of Financial Accounting Standards No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure". Under the modified prospective method, we recognized stock-based employee compensation costs based upon the fair value recognition provisions of Statement of Financial Accounting Standards No. 123 effective January 1, 2004. Compensation expense is recognized on the accelerated attribution method under Financial Accounting Standards Board Interpretation No. 28. Risk Management and Financial Instruments We utilize derivative financial instruments as a means to help to manage our interest rate risk exposure on a portion of our variable rate debt obligations, through the use of cash flow hedges. The instruments utilized are generally either pay-fixed swaps or LIBOR-based interest rate caps, which are widely used in the industry and typically entered into with major financial institutions. Our accounting policies generally reflect these instruments at their fair value with unrealized changes in fair value reflected in "Accumulated other comprehensive income" on our consolidated balance sheets. Realized effects on cash flows are generally recognized currently in income. Income Taxes Our financial results generally do not reflect provisions for current or deferred income taxes on our REIT taxable income. Management believes that we have and intend to continue to operate in a manner that will continue to allow us to be taxed as a REIT and, as a result, do not expect to pay substantial corporate-level taxes, other than taxes payable by our taxable REIT subsidiaries. Many of these requirements, however, are highly technical and complex. If we were to fail to meet these requirements, we would be subject to Federal income tax. New Accounting Standard On December 16, 2004, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 123(R), "Share-Based Payment", which is a revision of Statement of Financial Accounting Standards No. 123 and supersedes APB Opinion No. 25. SFAS No. 123(R) requires all share-based payments to employees, including grants of employee stock options, to be valued at fair value on the date of grant, and to be expensed over the applicable vesting period. Pro forma disclosure of the income statement effects of share-based payments is no longer an alternative. Statement of Financial Accounting Standards No. 123(R) is effective for all stock-based awards granted on or after July 1, 2005. In addition, companies must also recognize compensation expense related to any awards that are not fully vested as of the effective date. Compensation expense for the unvested awards will be measured based on the fair value of the awards previously calculated in developing the pro forma disclosures in accordance with the provisions of Statement of Financial Accounting Standards No. 123. As we have adopted Statement of Financial Accounting Standards No. No. 123 effective January 1, 2004, we do not believe that adoption of SFAS 123(R) will have a material impact on our future financial results. 21 - ------------------------------------------------------------------------------ Item 7A. Quantitative and Qualitative Disclosures about Market Risk - ------------------------------------------------------------------------------ The principal objective of our asset/liability management activities is to maximize net interest income, while minimizing levels of interest rate risk. Net interest income and interest expense are subject to the risk of interest rate fluctuations. To mitigate the impact of fluctuations in interest rates, we use interest rate swaps to effectively convert variable rate liabilities to fixed rate liabilities for proper matching with fixed rate assets. Each derivative used as a hedge is matched with an asset or liability with which it has a high correlation. The swap agreements are generally held-to-maturity and we do not use derivative financial instruments for trading purposes. We use interest rate swaps to effectively convert variable rate debt to fixed rate debt for the financed portion of fixed rate assets. The differential to be paid or received on these agreements is recognized as an adjustment to the interest expense related to debt and is recognized on the accrual basis. Our loans and investments, including our fund investments, are also subject to credit risk. The ultimate performance and value of our loans and investments depends upon the owner's ability to operate the properties that serve as our collateral so that they produce cash flows adequate to pay interest and principal due to us. To monitor this risk, our asset management team is in constant contact with our borrowers, monitoring performance of the collateral and enforcing our rights as necessary. The following table provides information about our financial instruments that are sensitive to changes in interest rates at December 31, 2004. For financial assets and debt obligations, the table presents cash flows to the expected maturity and weighted average interest rates based upon the current carrying values. For interest rate swaps, the table presents notional amounts and weighted average fixed pay and variable receive interest rates by contractual maturity dates. Notional amounts are used to calculate the contractual cash flows to be exchanged under the contract. Weighted average variable rates are based on rates in effect as of the reporting date.
Expected Maturity Dates ------------------------------------------------------------------------------------- 2005 2006 2007 2008 2009 Thereafter Total Fair Value ---- ---- ---- ---- ---- ---------- ----- ---------- Assets: (dollars in thousands) Commercial Mortgage-backed Securities Fixed Rate $ 7,811 -- $ 135 $ 1,420 $ 5,015 $196,131 $210,512 $188,138 Average interest rate 9.41% -- 7.64% 7.63% 9.92% 10.37% 10.31% Variable Rate $ 278 $ 6,677 $ 3,878 $ 39,833 $ 8,995 $1,268 $ 60,929 $ 59,627 Average interest rate 4.43% 4.43% 4.43% 5.12% 4.43% 26.54% 5.45% Loans receivable Fixed Rate $ 821 $ 905 $ 7,716 $ 47,618 $ 393 $ 23,276 $ 80,729 $ 90,708 Average interest rate 10.09% 10.13% 8.38% 11.80% 8.48% 8.48% 10.46% Variable Rate $148,339 $172,741 $90,096 $ 55,288 $ 12,895 -- $479,360 $476,211 Average interest rate 7.11 6.83% 7.47% 6.86% 8.14% -- 7.08% Interest rate swaps Notional amounts $ 297 $ 4,582 $ 5,623 $ 976 $ 2,157 $120,368 $134,003 $ 194 Average fixed pay rate 3.69% 4.20% 3.15% 4.16% 4.20% 4.20% 4.15% Average variable receive rate 2.41% 2.29% 2.41% 2.32% 2.30% 2.30% 2.30% Liabilities: Credit Facility Variable Rate $ 65,176 -- -- -- -- -- $ 65,176 $ 65,176 Average interest rate 5.37% -- -- -- -- -- 5.37% Repurchase obligations Variable Rate $ 25,732 $ 178,935 $20,424 -- -- -- $225,091 $225,091 Average interest rate 2.99% 3.38% 4.19% -- -- -- 3.41% Collateralized debt obligations Variable Rate -- -- -- $ 88,964 $ 103,053 $ 60,761 $252,778 $252,778 Average interest rate -- -- -- 3.23% 3.30% 4.02% 3.45%
22 - ------------------------------------------------------------------------------ Item 8. Financial Statements and Supplementary Data - ------------------------------------------------------------------------------ The financial statements required by this item and the reports of the independent accountants thereon required by Item 14(a)(2) appear on pages F-2 to F-43. See accompanying Index to the Consolidated Financial Statements on page F-1. The supplementary financial data required by Item 302 of Regulation S-K appears in Note 23 to the consolidated financial statements. ------------------------------------------------------------------------------ Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure - ------------------------------------------------------------------------------ None - ------------------------------------------------------------------------------ Item 9A. Controls and Procedures - ------------------------------------------------------------------------------ Evaluation of Disclosure Controls and Procedures An evaluation of the effectiveness of the design and operation of our "disclosure controls and procedures" (as defined in Rule 13a-14(c) under the Securities Exchange Act of 1934, as amended, as of the end of the period covered by this annual report on Form 10-K was made under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer. Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures (a) are effective to ensure that information required to be disclosed by us in reports filed or submitted under the Securities Exchange Act is timely recorded, processed, summarized and reported and (b) include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Securities Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. Management's Report on Internal Control over Financial Reporting Management's Report on Internal Control over Financial Reporting, which appears on page F-3, is incorporated herein by reference. Changes in Internal Controls There have been no significant changes in our "internal control over financial reporting" (as defined in rule 13a-15(f)) that occurred during the period covered by this report that has materially affected or is reasonably likely to materially affect our internal control over financial reporting. - ------------------------------------------------------------------------------ Item 9B. Other Information - ------------------------------------------------------------------------------ None 23 PART III - ------------------------------------------------------------------------------ Item 10. Directors and Executive Officers of the Registrant - ------------------------------------------------------------------------------ The information required by Items 401 and 405 of Regulation S-K is incorporated herein by reference to the Company's definitive proxy statement to be filed not later than April 30, 2005 with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act. - ------------------------------------------------------------------------------ Item 11. Executive Compensation - ------------------------------------------------------------------------------ The information required by Item 402 of Regulation S-K is incorporated herein by reference to the Company's definitive proxy statement to be filed not later than April 30, 2005 with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act. - ----------------------------------------------------------------------------- Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters - ------------------------------------------------------------------------------ The information required by Items 201(a) and 403 of Regulation S-K is incorporated herein by reference to the Company's definitive proxy statement to be filed not later than April 30, 2005 with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act. - ------------------------------------------------------------------------------ Item 13. Certain Relationships and Related Transactions - ------------------------------------------------------------------------------ The information required by Item 404 of Regulation S-K is incorporated herein by reference to the Company's definitive proxy statement to be filed not later than April 30, 2005 with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act. - ------------------------------------------------------------------------------ Item 14. Principal Accounting Fees and Services - ------------------------------------------------------------------------------ The information required by Item 9(e) of Schedule 14A is incorporated herein by reference to the Company's definitive proxy statement to be filed not later than April 30, 2005 with the Securities and Exchange Commission pursuant to Regulation 14A under the Exchange Act. 24 PART IV - ------------------------------------------------------------------------------ Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ (a) (1) Financial Statements - ------- -------------------- See the accompanying Index to Financial Statement Schedule on page F-1. (a) (2) Consolidated Financial Statement Schedules - ------- ------------------------------------------ None. All schedules have been omitted because they are not applicable or because the required information is shown in the consolidated financial statements or notes thereto. (a) (3) Exhibits - ------- -------- EXHIBIT INDEX Exhibit Number Description ------ ----------- 3.1 Charter of the Capital Trust, Inc. (filed as Exhibit 3.1.a to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on April 2, 2003 and incorporated herein by reference). 3.2 Amended and Restated By-Laws of Capital Trust, Inc. (filed as Exhibit 3.2 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on January 29, 1999 and incorporated herein by reference). 3.3 First Amendment to Amended and Restated Bylaws of Capital Trust, Inc. (filed as Exhibit 3.2 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on August 16, 2004 and incorporated herein by reference). o+10.1 Capital Trust, Inc. Second Amended and Restated 1997 Long-Term Incentive Stock Plan (the "1997 Plan"). +10.2 Capital Trust, Inc. Amended and Restated 1997 Non-Employee Director Stock Plan (filed as Exhibit 10.2 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on January 29, 1999 and incorporated herein by reference) (the "1997 Director Plan"). +10.3 Capital Trust, Inc. 1998 Employee Stock Purchase Plan (filed as Exhibit 10.3 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on January 29, 1999 and incorporated herein by reference). +10.4 Capital Trust, Inc. 1998 Non-Employee Stock Purchase Plan (filed as Exhibit 10.4 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on January 29, 1999 and incorporated herein by reference). o+10.5 Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "2004 Plan"). +10.6 Form of Award Agreement granting Restricted Shares and Performance Units under the 2004 Plan (filed as Exhibit 99.1 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on February 10, 2005 and incorporated herein by reference). o+10.7 Form of Award Agreement granting Performance Units under the 2004 Plan. 25 Exhibit Number Description ------ ----------- o+10.8 Form of Award Agreement granting Performance Units under the 2004 Plan. o+10.9 Form of Award Agreement granting Performance Units under the 2004 Plan. o+10.10 Form of Stock Option Award Agreement under the 2004 Plan. o+10.11 Form of Restricted Share Award Agreement under the 2004 Plan. o+10.12 Deferral and Distribution Election Form for Restricted Share Award Agreement under the 2004 Plan. o+10.13 Form of Restricted Share Unit Award Agreement under the 2004 Plan. o+10.14 Deferral and Distribution Election Form for Restricted Share Unit Award Agreement under the 2004 Plan. o+10.15 Deferred Share Unit Program Election Forms under the 2004 Plan. o+10.16 Director Retainer Deferral Election Form for Stock Units under the 1997 Plan. +10.17 Employment Agreement, dated as of February 24, 2004, by and between Capital Trust, Inc. and CT Investment Management Co., LLC and John R. Klopp (filed as Exhibit 10.1 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on May 12, 2004 and incorporated herein by reference). +10.18 Termination Agreement, dated as of December 29, 2000, by and between Capital Trust, Inc. and Craig M. Hatkoff (filed as Exhibit 10.9 to Capital Trust, Inc.'s Annual Report on Form 10-K (File No. 1-14788) filed on April 2, 2001 and incorporated herein by reference). +10.19 Consulting Services Agreement, dated as of January 1, 2003, by and between CT Investment Management Co., LLC and Craig M. Hatkoff. (filed as Exhibit 10.1 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on November 6, 2003 and incorporated herein by reference). 10.20 Agreement of Lease dated as of May 3, 2000, between 410 Park Avenue Associates, L.P., owner, and Capital Trust, Inc., tenant (filed as Exhibit 10.11 to Capital Trust, Inc.'s Annual Report on Form 10-K (File No. 1-14788) filed on April 2, 2001 and incorporated herein by reference). 10.21.a Amended and Restated Master Loan and Security Agreement, dated as of June 27, 2003, between Capital Trust, Inc., CT Mezzanine Partners I LLC and Morgan Stanley Mortgage Capital Inc. (filed as Exhibit 10.4 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on November 6, 2003 and incorporated herein by reference). o10.21.b Joinder and Amendment, dated as of July 20, 2004, among Capital Trust, Inc., CT Mezzanine Partners I LLC, CT RE CDO 2004-1 Sub, LLC and Morgan Stanley Mortgage Capital Inc. 10.22.a Master Repurchase Agreement, dated as of May 28, 2003, between Goldman Sachs Mortgage Company and Capital Trust, Inc. (filed as Exhibit 10.2 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on November 6, 2003 and incorporated herein by reference). 10.22.b First Amendment to the Master Repurchase Agreement, dated as of August 26, 2003, between Goldman Sachs Mortgage Company and Capital Trust, Inc. (filed as Exhibit 10.3 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on November 6, 2003 and incorporated herein by reference). 26 Exhibit Number Description ------ ----------- 10.22.c Second Amendment to Master Repurchase Agreement, dated as of June 1, 2004, by and between Goldman Sachs Mortgage Company, Commerzbank AG, New York Branch and Capital Trust, Inc. (filed as Exhibit 10.3 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on August 16, 2004 and incorporated herein by reference). o10.22.d Third Amendment to Master Repurchase Agreement, dated as of November 14, 2004, by and among Goldman Sachs Mortgage Company, Commerzbank AG, New York Branch and Capital Trust, Inc. o10.22.e Fourth Amendment to Master Repurchase Agreement, dated as of February 28, 2005, by and among Goldman Sachs Mortgage Company, Commerzbank AG, New York Branch and Capital Trust, Inc. 10.23 Master Loan Repurchase Facility, dated as of August 17, 2004, by and between Goldman Sachs Mortgage Company and Capital Trust, Inc. (filed as Exhibit 10.1 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on November 3, 2004 and incorporated herein by reference). o10.24.a Master Repurchase Agreement, dated as of February 19, 2002, by and between Liquid Funding, Ltd. and CT LF Funding Corp. o10.24.b Terms Annex, dated March 1, 2005, by and between Liquid Funding, Ltd. and CT LF Funding Corp. o10.25 Master Repurchase Agreement, dated as of March 4, 2005, by and among Capital Trust, Inc., Bank of America, N.A. and Banc of America Securities LLC. 10.26 Limited Liability Company Agreement of CT MP II LLC, by and among Travelers General Real Estate Mezzanine Investments II, LLC and CT-F2-GP, LLC, dated as of March 8, 2000 (filed as Exhibit 10.3 to the Company's Current Report on Form 8-K (File No. 1-14788) filed on March 23, 2000 and incorporated herein by reference). 10.27 Venture Agreement amongst Travelers Limited Real Estate Mezzanine Investments I, LLC, Travelers General Real Estate Mezzanine Investments II, LLC, Travelers Limited Real Estate Mezzanine Investments II, LLC, CT-F1, LLC, CT-F2-GP, LLC, CT-F2-LP, LLC, CT Investment Management Co., LLC and Capital Trust, Inc., dated as of March 8, 2000 (filed as Exhibit 10.1 to the Company's Current Report on Form 8-K (File No. 1-14788) filed on March 23, 2000 and incorporated herein by reference). 10.28 Guaranty of Payment, by Capital Trust, Inc. in favor of Travelers Limited Real Estate Mezzanine Investments I, LLC, Travelers General Real Estate Mezzanine Investments II, LLC and Travelers Limited Real Estate Mezzanine Investments II, LLC, dated as of March 8, 2000 (filed as Exhibit 10.6 to the Company's Current Report on Form 8-K (File No. 1-14788) filed on March 23, 2000 and incorporated herein by reference). 10.29 Guaranty of Payment, by The Travelers Insurance Company in favor of Capital Trust, Inc., CT-F1, LLC, CT-F2-GP, LLC, CT-F2-LP, LLC and CT Investment Management Co., LLC, dated as of March 8, 2000 (filed as Exhibit 10.8 to the Company's Current Report on Form 8-K (File No. 1-14788) filed on March 23, 2000 and incorporated herein by reference). 10.30 Investment Management Agreement, by and among CT Investment Management Co., LLC, CT MP II LLC and CT Mezzanine Partners II L.P., dated as of March 8, 2000 (filed as Exhibit 10.9 to the Company's Current Report on Form 8-K (File No. 1-14788) filed on March 23, 2000 and incorporated herein by reference). 10.31 Registration Rights Agreement, dated as of July 28, 1998, among Capital Trust, Vornado Realty L.P., EOP Limited Partnership, Mellon Bank N.A., as trustee for General Motors Hourly-Rate Employes Pension Trust, and Mellon Bank N.A., as trustee for General Motors Salaried Employes Pension Trust (filed as Exhibit 10.2 to Capital Trust's Current Report on Form 8-K (File No. 1-8063) filed on August 6, 1998 and incorporated herein by reference). 27 Exhibit Number Description ------ ----------- 10.32 Registration Rights Agreement, dated as of February 7, 2003, by and between Capital Trust, Inc. and Stichting Pensioenfonds ABP (filed as Exhibit 10.24 to Capital Trust, Inc.'s Annual Report on Form 10-K (File No. 1-14788) filed on March 28, 2003 and incorporated herein by reference). 10.33 Registration Rights Agreement, dated as of June 18, 2003, by and among Capital Trust, Inc. and the parties named therein (filed as Exhibit 10.2 to Capital Trust, Inc.'s Quarterly Report on Form 10-Q (File No. 1-14788) filed on May 12, 2004 and incorporated herein by reference). 10.34 Securities Purchase Agreement, dated as of May 11, 2004, by and among Capital Trust, Inc. W. R. Berkley Corporation and certain shareholders of Capital Trust, Inc. (filed as Exhibit 10.1 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on May 11, 2004 and incorporated herein by reference). 10.35 Registration Rights Agreement dated as of May 11, 2004, by and among Capital Trust, Inc. and W. R. Berkley Corporation (filed as Exhibit 10.2 to Capital Trust, Inc.'s Current Report on Form 8-K (File No. 1-14788) filed on May 11, 2004 and incorporated herein by reference). 11.1 Statements regarding Computation of Earnings per Share (Data required by Statement of Financial Accounting Standard No. 128, Earnings per Share, is provided in Note 13 to the consolidated financial statements contained in this report). 14.1 Capital Trust, Inc. Code of Business Conduct and Ethics (filed as Exhibit 14.1 to Capital Trust, Inc.'s Annual Report on Form 10-K (File No. 1-14788) filed on March 3, 2004 and incorporated herein by reference). o21.1 Subsidiaries of Capital Trust, Inc. o23.1 Consent of Ernst & Young LLP o31.1 Certification of John R. Klopp, Chief Executive Officer, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. o31.2 Certification of Brian H. Oswald, Chief Financial Officer, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. o32.1 Certification of John R. Klopp, Chief Executive Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. o32.2 Certification of Brian H. Oswald, Chief Financial Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. o99.1 Risk Factors ------------- + Represents a management contract or compensatory plan or arrangement. o Filed herewith. 28 SIGNATURES ---------- Pursuant to the requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. March 10, 2005 /s/ John R. Klopp - --------------------------- ----------------- Date John R. Klopp Chief Executive Officer Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated. March 10, 2005 /s/ Samuel Zell - --------------------------- --------------- Date Samuel Zell Chairman of the Board of Directors March 10, 2005 /s/ John R. Klopp - --------------------------- ------------------ Date John R. Klopp Chief Executive Officer and Director March 10, 2005 /s/ Brian H. Oswald - --------------------------- ------------------- Date Brian H. Oswald Chief Financial Officer March 10, 2005 /s/ Thomas E. Dobrowski - -------------------------- ----------------------- Date Thomas E. Dobrowski, Director March 10, 2005 /s/ Martin L. Edelman - -------------------------- --------------------- Date Martin L. Edelman, Director March 10, 2005 /s/ Craig M. Hatkoff - -------------------------- -------------------- Date Craig M. Hatkoff, Director March 10, 2005 /s/ Henry N. Nassau - -------------------------- ------------------- Date Henry N. Nassau, Director March 10, 2005 /s/ Joshua A. Polan - -------------------------- ------------------- Date Joshua A. Polan, Director March 10, 2005 /s/ Lynne B. Sagalyn - -------------------------- -------------------- Date Lynne B. Sagalyn, Director 29 Index to Consolidated Financial Statements and Schedules Report of Independent Registered Public Accounting Firm on Internal Control over Financial Reporting......F-2 Management's Report of Internal Control over Financial Reporting..........................................F-3 Management's Responsibility for Financial Statements......................................................F-4 Report of Independent Registered Public Accounting Firm...................................................F-5 Audited Financial Statements Consolidated Balance Sheets as of December 31, 2004 and 2003..............................................F-6 Consolidated Statements of Operations for the years ended December 31, 2004, 2003 and 2002..........................................................................F-7 Consolidated Statements of Changes in Shareholders' Equity for the years ended December 31, 2004, 2003 and 2002....................................................................F-8 Consolidated Statements of Cash Flows for the years ended December 31, 2004, 2003 and 2002..........................................................................F-9 Notes to Consolidated Financial Statements................................................................F-10 Schedule IV - Mortgage Loans on Real Estate...............................................................S-1
F-1 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM ON INTERNAL CONTROL OVER FINANCIAL REPORTING The Board of Directors and Shareholders of Capital Trust, Inc. and Subsidiaries We have audited management's assessment, included in the accompanying Management's Report on Internal Control over Financial Reporting, that Capital Trust, Inc. and Subsidiaries (the "Company") maintained effective internal control over financial reporting as of December 31, 2004, based on criteria established in Internal Control--Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on management's assessment and an opinion on the effectiveness of the Company's internal control over financial reporting based on our audit. We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, evaluating management's assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion. A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. In our opinion, management's assessment that the Company maintained effective internal control over financial reporting as of December 31, 2004, is fairly stated, in all material respects, based on the COSO criteria. Also, in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2004, based on the COSO criteria. We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of the Company as of December 31, 2004, and the related consolidated statements of operations, shareholders' equity and cash flows for each of the three years in the period ended December 31, 2004 of the Company and our report dated March 9, 2005 expressed an unqualified opinion thereon. /s/Ernst & Young LLP New York, NY March 9, 2005 F-2 MANAGEMENT'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING Management is responsible for establishing and maintaining adequate internal control over financial reporting, and for performing an assessment of the effectiveness of internal control over financial reporting as of December 31, 2004. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company's system of internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Management performed an assessment of the effectiveness of the Company's internal control over financial reporting as of December 31, 2004 based upon criteria in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission ("COSO"). Based on our assessment, management determined that the Company's internal control over financial reporting was effective as of December 31, 2004 based on the criteria in Internal Control-Integrated Framework issued by COSO. Our management's assessment of the effectiveness of the Company's internal control over financial reporting as of December 31, 2004 has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in their report which appears herein. Dated: March 9, 2005 John R. Klopp Brian H. Oswald President and Chief Financial Officer Chief Executive Officer F-3 MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL STATEMENTS Capital Trust, Inc.'s management is responsible for the integrity and objectivity of all financial information included in this Annual Report. The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. The financial statements include amounts that are based on the best estimates and judgments of management. All financial information in this Annual Report is consistent with that in the consolidated financial statements. Ernst & Young LLP, an independent registered public accounting firm, has audited these consolidated financial statements in accordance with the standards of the Public Company Accounting Oversight Board (United States) and have expressed herein their unqualified opinion on those financial statements. The Audit Committee of the Board of Directors, which oversees Capital Trust, Inc.'s financial reporting process on behalf of the Board of Directors, is composed entirely of independent directors (as defined by the New York Stock Exchange). The Audit Committee meets periodically with management, the independent accountants, and the internal auditors to review matters relating to the Company's financial statements and financial reporting process, annual financial statement audit, engagement of independent accountants, internal audit function, system of internal controls, and legal compliance and ethics programs as established by Capital Trust, Inc.'s management and the Board of Directors. The internal auditors and the independent accountants periodically meet alone with the Audit Committee and have access to the Audit Committee at any time. Dated: March 9, 2005 John R. Klopp Brian H. Oswald President and Chief Financial Officer Chief Executive Officer F-4 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors and Shareholders of Capital Trust, Inc. and Subsidiaries We have audited the accompanying consolidated balance sheets of Capital Trust, Inc. and Subsidiaries (the "Company") as of December 31, 2004 and 2003, and the related consolidated statements of operations, shareholders' equity and cash flows for each of the three years in the period ended December 31, 2004. Our audits also included the financial statement schedule listed in the Index to Consolidated Financial Statements and Schedules. These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company at December 31, 2004 and 2003, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2004, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the financial statement schedule referred to above, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein. As discussed in Note 5 to the financial statements, in 2004 the Company changed its method of accounting for stock based compensation. As discussed in Note 3 to the consolidated financial statements, in 2004 the Company adopted Financial Accounting Standards Board Interpretation No. 46 (R), "Consolidation of Variable Interest Entities an interpretation of ARB No. 51." We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the effectiveness of the Company's internal control over financial reporting as of December 31, 2004, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 9, 2005 expressed an unqualified opinion thereon. /s/ Ernst & Young LLP New York, New York March 9, 2005 F-5 Capital Trust, Inc. and Subsidiaries Consolidated Balance Sheets December 31, 2004 and 2003 (in thousands, except per share data)
2004 2003 -------------------- -------------------- Assets Cash and cash equivalents $ 24,583 $ 8,738 Restricted cash 611 -- Available-for-sale securities, at fair value -- 20,052 Commercial mortgage-backed securities available-for-sale, at fair value 247,765 158,136 Loans receivable, net of $6,672 reserve for possible credit losses at December 31, 2003 556,164 177,049 Equity investment in CT Mezzanine Partners I LLC ("Fund I"), CT Mezzanine Partners II LP ("Fund II"), CT MP II LLC ("Fund II GP") and CT Mezzanine Partners III, Inc. ("Fund III") (together "Funds") 21,376 21,988 Deposits and other receivables 10,282 345 Accrued interest receivable 4,029 3,834 Interest rate hedge assets 194 168 Deferred income taxes 5,623 3,369 Prepaid and other assets 7,139 6,247 -------------------- -------------------- Total assets $ 877,766 $ 399,926 ==================== ==================== Liabilities and Shareholders' Equity Liabilities: Accounts payable and accrued expenses $ 17,388 $ 11,041 Credit facility 65,176 38,868 Term redeemable securities contract -- 11,651 Repurchase obligations 225,091 146,894 Collateralized debt obligations 252,778 -- Step up convertible junior subordinated debentures -- 92,248 Deferred origination fees and other revenue 836 3,207 -------------------- -------------------- Total liabilities 561,269 303,909 -------------------- -------------------- Shareholders' equity: Class A common stock, $0.01 par value, 100,000 shares authorized, 14,769 and 6,502 shares issued and outstanding at December 31, 2004 and 2003, respectively ("class A common stock") 148 65 Restricted class A common stock, $0.01 par value, 283 and 34 shares issued and outstanding at December 31, 2004 and 2003, respectively ("restricted class A common stock" and together with class A common stock, "common stock") 3 -- Additional paid-in capital 321,937 141,402 Unearned compensation -- (247) Accumulated other comprehensive gain/(loss) 3,815 (33,880) Accumulated deficit (9,406) (11,323) -------------------- -------------------- Total shareholders' equity 316,497 96,017 -------------------- -------------------- Total liabilities and shareholders' equity $ 877,766 $ 399,926 ==================== ====================
See accompanying notes to consolidated financial statements. F-6 Capital Trust, Inc. and Subsidiaries Consolidated Statements of Operations For the Years Ended December 31, 2004, 2003 and 2002 (in thousands, except per share data)
2004 2003 2002 ---------------- ---------------- ----------------- Income from loans and other investments: Interest and related income $ 46,561 $ 38,524 $ 47,527 Less: Interest and related expenses (13,724) (9,845) (17,969) Less: Interest and related expenses on step up convertible junior subordinated debentures (6,417) (9,730) (16,192) ---------------- ---------------- ----------------- Income from loans and other investments, net 26,420 18,949 13,366 ---------------- ---------------- ----------------- Other revenues: Management and advisory fees from affiliated Funds managed 7,853 8,020 10,123 Income/(loss) from equity investments in Funds 2,407 1,526 (2,534) Advisory and investment banking fees -- -- 2,207 Gain on sales of investments 300 -- -- Special servicing fees 10 -- -- Other interest income 78 53 128 ---------------- ---------------- ----------------- Total other revenues 10,648 9,599 9,924 ---------------- ---------------- ----------------- Other expenses: General and administrative 15,229 13,320 13,996 Other interest expense -- -- 23 Depreciation and amortization 1,100 1,057 992 Net unrealized (gain)/loss on derivative securities and corresponding hedged risk on CMBS securities -- -- (21,134) Net realized loss on sale of fixed assets, investments and settlement of derivative securities -- -- 28,715 Unrealized loss on available-for-sale securities for other-than-temporary impairment 5,886 -- -- Provision for/(recapture of) allowance for possible credit losses (6,672) -- (4,713) ---------------- ---------------- ----------------- Total other expenses 15,543 14,377 17,879 ---------------- ---------------- ----------------- Income before income taxes 21,525 14,171 5,411 Income tax expense/(benefit) (451) 646 15,149 ---------------- ---------------- ----------------- Net income/(loss) $ 21,976 $ 13,525 $ (9,738) ================ ================ ================= Per share information: Net earnings/(loss) per share of common stock Basic $ 2.17 $ 2.27 $ (1.62) ================ ================ ================= Diluted $ 2.14 $ 2.23 $ (1.62) ================ ================ ================= Dividends declared per share of common stock $ 1.85 $ 1.80 $ -- ================ ================ ================= Weighted average shares of common stock outstanding Basic 10,141,380 5,946,718 6,008,731 ================ ================ ================= Diluted 10,276,886 10,287,721 6,008,731 ================ ================ =================
See accompanying notes to consolidated financial statements. F-7 Capital Trust, Inc. and Subsidiaries Consolidated Statements of Changes in Shareholders' Equity For the Years Ended December 31, 2004, 2003 and 2002 (in thousands)
Restricted Class A Class A Additional Comprehensive Common Common Paid-In Unearned Income/(Loss) Stock Stock Capital Compensation --------------- --------------------------------------------- Balance at January 1, 2002 61 1 136,930 (583) Net loss $ (9,738) -- -- -- -- Unrealized gain on derivative financial instruments, net of related income taxes 1,715 -- -- -- -- Unrealized loss on available-for-sale securities, net of related income taxes (794) -- -- -- -- Issuance of class A common stock unit awards -- -- -- 313 -- Issuance of restricted class A common stock -- -- 1 399 (400) Restricted class A common stock earned -- -- -- -- 663 Vesting of restricted class A common stock to unrestricted class A common stock -- 1 (1) -- -- Repurchase and retirement of shares of class A common stock previously outstanding -- (8) -- (10,723) -- --------------- --------------------------------------------- Balance at December 31, 2002 $ (8,817) 54 1 126,919 (320) =============== Net income $ 13,525 -- -- -- -- Unrealized gain on derivative financial instruments, net of related income taxes 1,990 -- -- -- -- Unrealized loss on available-for-sale securities, net of related income taxes (6,882) -- -- -- -- Issuance of restricted class A common stock -- -- -- 356 (356) Restricted class A common stock earned -- -- -- -- 237 Sale of shares of class A common stock under stock option agreement -- -- -- 281 -- Cancellation of restricted class A common stock -- -- -- (192) 192 Vesting of restricted class A common stock to unrestricted class A common stock -- 1 (1) -- -- Repurchase and retirement of shares of class A common stock previously outstanding -- (1) -- (946) -- Repurchase of warrants to purchase shares of class A common stock -- -- -- (2,132) -- Dividends declared on class A common stock -- -- -- -- -- Shares redeemed in one for three reverse stock split -- -- -- (8) -- Shares of class A common stock issued in private offering -- 11 -- 17,124 -- --------------- --------------------------------------------- Balance at December 31, 2003 $ 8,633 65 -- 141,402 (247) =============== Net income $ 21,976 -- -- -- -- Unrealized gain on derivative financial instruments 26 -- -- -- -- Unrealized gain on available-for-sale securities 37,669 -- -- -- -- Implementation of SFAS No. 123 -- -- -- (247) 247 Issuance of restricted class A common stock -- -- 3 (3) -- Sale of shares of class A common stock under stock option agreement -- 1 -- 813 -- Vesting of restricted class A common stock to unrestricted class A common stock -- -- -- -- -- Conversion of class A common stock units to class A common stock -- -- -- 411 -- Conversion of step up convertible junior subordinated debentures into class A common stock -- 43 -- 90,048 -- Restricted class A common stock earned -- -- -- 1,342 -- Shares of class A common stock issued in public offering -- 19 -- 41,600 -- Shares of class A common stock issued in direct public offering -- 16 -- 37,963 -- Shares of class A common stock issued upon exercise of warrants -- 4 -- 8,537 -- Stock options expensed under SFAS No. 123 -- -- -- 71 -- Dividends declared on class A common stock -- -- -- -- -- --------------- --------------------------------------------- Balance at December 31, 2004 $ 59,671 $ 148 $ 3 $321,937 $ -- =============== =============================================
Accumulated Other Comprehensive Accumulated Income/(Loss) Deficit Total ------------------------------------------- Balance at January 1, 2002 (29,909) (3,872) 102,628 Net loss -- (9,738) (9,738) Unrealized gain on derivative financial instruments, net of related income taxes 1,715 -- 1,715 Unrealized loss on available-for-sale securities, net of related income taxes (794) -- (794) Issuance of class A common stock unit awards -- -- 313 Issuance of restricted class A common stock -- -- -- Restricted class A common stock earned -- -- 663 Vesting of restricted class A common stock to unrestricted class A common stock -- -- -- Repurchase and retirement of shares of class A common stock previously outstanding -- -- (10,731) ---------------------------------------- Balance at December 31, 2002 (28,988) (13,610) 84,056 Net income -- 13,525 13,525 Unrealized gain on derivative financial instruments, net of related income taxes 1,990 -- 1,990 Unrealized loss on available-for-sale securities, net of related income taxes (6,882) -- (6,882) Issuance of restricted class A common stock -- -- -- Restricted class A common stock earned -- -- 237 Sale of shares of class A common stock under stock option agreement -- -- 281 Cancellation of restricted class A common stock -- -- -- Vesting of restricted class A common stock to unrestricted class A common stock -- -- -- Repurchase and retirement of shares of class A common stock previously outstanding -- -- (947) Repurchase of warrants to purchase shares of class A common stock -- -- (2,132) Dividends declared on class A common stock -- (11,238) (11,238) Shares redeemed in one for three reverse stock split -- -- (8) Shares of class A common stock issued in private offering -- -- 17,135 ----------------------------------------- Balance at December 31, 2003 (33,880) (11,323) 96,017 Net income -- 21,976 21,976 Unrealized gain on derivative financial instruments 26 -- 26 Unrealized gain on available-for-sale securities 37,669 -- 37,669 Implementation of SFAS No. 123 -- -- -- Issuance of restricted class A common stock -- -- -- Sale of shares of class A common stock under stock option agreement -- -- 814 Vesting of restricted class A common stock to unrestricted class A common stock -- -- -- Conversion of class A common stock units to class A common stock -- -- 411 Conversion of step up convertible junior subordinated debentures into class A common stock -- -- 90,091 Restricted class A common stock earned -- -- 1,342 Shares of class A common stock issued in public offering -- -- 41,619 Shares of class A common stock issued in direct public offering -- -- 37,979 Shares of class A common stock issued upon exercise of warrants -- -- 8,541 Stock options expensed under SFAS No. 123 -- -- 71 Dividends declared on class A common stock -- (20,059) (20,059) ----------------------------------------- Balance at December 31, 2004 $ 3,815 $ (9,406) $ 316,497 =========================================
See accompanying notes to consolidated financial statements. F-8 Capital Trust, Inc. and Subsidiaries Consolidated Statements of Cash Flows For the Years Ended December 31, 2004, 2003 and 2002 (in thousands)
2004 2003 2002 ---------------- ---------------- ----------------- Cash flows from operating activities: Net income/(loss) $ 21,976 $ 13,525 $ (9,738) Adjustments to reconcile net income/(loss) to net cash provided by operating activities: Deferred income taxes (2,254) (1,784) 8,178 Provision for/(recapture of) provision for possible credit losses (6,672) -- (4,713) Unrealized loss on available-for-sale securities for other-than-temporary impairment 5,886 -- -- Depreciation and amortization 1,100 1,057 992 Loss/(income) from equity investments in Funds (2,407) (1,526) 2,534 Net gain on sales of CMBS and available-for-sale securities (300) -- (711) Cash paid on settlement of fair value hedge -- -- (23,624) Unrealized loss on hedged and derivative securities -- -- 2,561 Restricted class A common stock earned 1,342 237 663 Amortization of premiums and accretion of discounts on loans and investments, net (1,327) (1,277) (2,365) Accretion of discount on term redeemable securities contract -- -- 680 Accretion of discounts and fees on convertible trust preferred securities, net 276 478 1,305 Stock option expense 71 -- -- Changes in assets and liabilities: Deposits and other receivables 63 86 761 Accrued interest receivable (806) 3,126 192 Prepaid and other assets 2,482 799 1,347 Deferred origination fees and other revenue (2,371) 2,165 (462) Accounts payable and accrued expenses 2,521 (1,084) (215) ---------------- ---------------- ----------------- Net cash provided by/(used in) operating activities 19,580 15,802 (22,615) ---------------- ---------------- ----------------- Cash flows from investing activities: Purchases of available-for-sale securities -- -- (39,999) Principal collections on and proceeds from sales of available-for-sale securities 19,561 43,409 131,347 Purchases of CMBS (59,550) (6,157) -- Principal collections on and proceeds from sale of CMBS 5,048 -- 67,880 Origination and purchase of loans receivable (489,480) (99,600) -- Principal collections on loans receivable 106,422 87,210 136,246 Equity investments in Funds (8,460) (9,931) (5,973) Return of capital from Funds 10,482 10,758 11,840 Purchases of equipment and leasehold improvements (119) (26) (5) Increase in restricted cash (611) -- -- Purchase of remaining interest in Fund I -- (19,947) -- ---------------- ---------------- ----------------- Net cash provided by/(used in) investing activities (416,707) 5,716 301,336 ---------------- ---------------- ----------------- Cash flows from financing activities: Proceeds from repurchase obligations 189,882 55,672 179,861 Repayment of repurchase obligations (111,685) (68,834) (167,685) Proceeds from credit facilities 246,852 104,015 118,500 Repayment of credit facilities (220,544) (129,232) (199,711) Repayment of notes payable -- -- (977) Repayment of convertible trust preferred securities -- -- (60,258) Proceeds from term redeemable securities contract -- 20,000 35,816 Repayment of term redeemable securities contract (11,651) (8,349) (173,628) Proceeds from issuance of collateralized debt obligations 252,778 -- -- Payment of deferred financing costs (6,140) (2,270) (1,373) Sale of shares of class A common stock under stock option agreement 815 281 -- Dividends paid on class A common stock (15,474) (8,297) -- Proceeds from exercise of warrants for shares of class A common stock 8,541 -- -- Repurchase of warrants to purchase shares of class A common stock -- (2,132) -- Proceeds from sale of shares of class A common stock 79,598 17,135 -- Repurchase and retirement of shares of common and preferred stock previously outstanding -- (955) (10,731) ---------------- ---------------- ----------------- Net cash provided by/(used in) financing activities 412,972 (22,966) (280,186) ---------------- ---------------- ----------------- Net increase/(decrease) in cash and cash equivalents 15,845 (1,448) (1,465) Cash and cash equivalents at beginning of year 8,738 10,186 11,651 ---------------- ---------------- ----------------- Cash and cash equivalents at end of year $ 24,583 $ 8,738 $ 10,186 ================ ================ =================
See accompanying notes to consolidated financial statements. F-9 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements December 31, 2004, 2003 and 2002 1. Organization cReferences herein to "we," "us" or "our" refer to Capital Trust, Inc. and its subsidiaries unless the context specifically requires otherwise. We are a finance and investment management company that specializes in originating and managing credit sensitive structured financial products. We will continue to make, for our own account and as investment manager for the account of funds under management, loans and debt-related investments in various types of commercial real estate assets and operating companies. On April 2, 2003, our charter was amended and restated and then further amended to eliminate from our authorized stock the entire 100,000,000 shares of our authorized but unissued class B common stock and to effect a one (1) for three (3) reverse stock split of our class A common stock. Fractional shares resulting from the reverse stock split were settled in cash at a rate of $16.65 multiplied by the percentage of a share owned after the split. All per share information concerning the computation of earnings per share, dividends per share, authorized stock, and per share conversion and exercise prices reported in the accompanying consolidated interim financial statements and these notes to consolidated financial statements have been adjusted as if the amendments to our charter were in effect for all fiscal periods and as of all balance sheet dates presented. 2. REIT Election In December 2002, our board of directors authorized our election to be taxed as a real estate investment trust ("REIT") beginning with the 2003 tax year. We will continue to make, for our own account and as investment manager for the account of funds under management, credit sensitive structured financial products including loans and debt-related investments in various types of commercial real estate. In view of our election to be taxed as a REIT, we have tailored our balance sheet investment program to originate or acquire loans and investments to produce a portfolio that meets the asset and income tests necessary to maintain qualification as a REIT. In order to accommodate our REIT status, the legal structure of future investment funds we sponsor may be different from the legal structure of our existing investment funds. In order to qualify as a REIT, five or fewer individuals may own no more than 50% of our common stock. As a means of facilitating compliance with such qualification, shareholders controlled by John R. Klopp and Craig M. Hatkoff and trusts for the benefit of the family of Samuel Zell each sold 166,666 shares of class A common stock to an institutional investor in a transaction that closed on February 7, 2003. Following this transaction, our largest five individual shareholders own in the aggregate less than 50% of the class A common stock. 3. Application of New Accounting Standard In January 2003, the Financial Accounting Standards Board issued Interpretation No. 46, "Consolidation of Variable Interest Entities," an interpretation of Accounting Research Bulletin 51. Interpretation No. 46 provides guidance on identifying entities for which control is achieved through means other than through voting rights, and how to determine when and which business enterprise should consolidate a variable interest entity. In addition, Interpretation No. 46 requires that both the primary beneficiary and all other enterprises with a significant variable interest in a variable interest entity make additional disclosures. The transitional disclosure requirements took effect almost immediately and are required for all financial statements initially issued after January 31, 2003. In December 2003, the Financial Accounting Standards Board issued a revision of Interpretation No. 46, Interpretation No. 46R, to clarify the provisions of Interpretation No. 46. The application of Interpretation No. 46R is effective for public companies, other than small business issuers, after March 15, 2004. We have evaluated all of our investments and other interests in entities that may be deemed variable interest entities under the provisions of Interpretation No. 46 and have concluded that no additional entities need to be consolidated. F-10 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements, continued 3. Application of New Accounting Standard, continued In evaluating Interpretation No. 46R, we concluded that we could no longer consolidate CT Convertible Trust I, the entity which had purchased our step up convertible junior subordinated debentures and issued company-obligated, mandatory redeemable, convertible trust common and preferred securities. Capital Trust, Inc. had issued the convertible junior subordinated debentures and had purchased the convertible trust common securities. The consolidation of CT Convertible Trust I resulted in the elimination of both the convertible junior subordinated debentures and the convertible trust common securities with the convertible trust preferred securities being reported on our balance sheet after liabilities but before equity and the related expense being reported on the income statement below income taxes and net of income tax benefits. After the deconsolidation, we report the convertible junior subordinated debentures as liabilities and the convertible trust common securities as other assets. The expense from the payment of interest on the debentures is reported as interest and related expenses on convertible junior subordinated debentures and the income received from our investment in the common securities is reported as a component of interest and related income. We have elected to restate prior periods for the application of Interpretation 46R. The restatement was effected by a cumulative type change in accounting principle on January 1, 2002. There was no change to previously reported net income as a result of such restatement. 4. Venture with Citigroup Alternative Investments LLC On March 8, 2000, we entered into a venture with affiliates of Citigroup Alternative Investments LLC pursuant to which they agreed, among other things, to co-sponsor and invest capital in a series of commercial real estate mezzanine investment funds managed by us with certain investment criteria. Pursuant to the venture agreement, which was amended in 2003, we have co-sponsored three funds; CT Mezzanine Partners I LLC, CT Mezzanine Partners II LP and CT Mezzanine Partners III, Inc., which we refer to as Fund I, Fund II and Fund III, respectively. Our wholly-owned subsidiary, CT Investment Management Co., LLC, serves as the exclusive investment manager to Fund I, Fund II and Fund III. Fund I was formed in March 2000. An affiliate of Citigroup Alternative Investments and our wholly-owned subsidiary, as members thereof, made capital commitments of up to $150 million and $50 million, respectively. During its investment period, Fund I made approximately $330 million of investments. In January 2003, we purchased the 75% interest in Fund I held by an affiliate of Citigroup Alternative Investments for a purchase price of approximately $38.4 million (including the assumption of liabilities), equal to the book value of the fund. On January 31, 2003, we began consolidating the balance sheet and operations of Fund I in our consolidated financial statements. Fund II was formed in April 2001. Fund II effected its final closing on third-party investor equity commitments in August 2001. Fund II had total equity commitments of $845.2 million including $49.7 million made by us and $198.9 million made by affiliates of Citigroup Alternative Investments. Third-party private equity investors made the remaining equity commitments. During its investment period (April 9, 2001 to April 9, 2003), Fund II made approximately $1.2 billion of investments. Fund III was formed in June 2003. Fund III effected its final closing on third-party investor equity commitments in August 2003. Fund III has total equity commitments of $425 million including $20 million made by us and $80 million made by affiliates of Citigroup Alternative Investments. Third-party private equity investors made the remaining equity commitments. Through December 31, 2004, Fund III made approximately $800 million of investments. In connection with entering into the venture agreement and formation of Fund I and Fund II, we issued to affiliates of Citigroup Alternative Investments warrants to purchase 2,842,822 shares of our class A common stock. The warrants had a $15.00 per share exercise price and were exercisable until expiration on March 10, 2005. We capitalized the value of the warrants at issuance and they are being amortized over the anticipated lives of the Funds. In January 2003, we purchased all of the outstanding warrants for $2.1 million. We had no further obligations to issue additional warrants to Citigroup at December 31, 2004. F-11 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies Principles of Consolidation Our consolidated financial statements include our accounts and the accounts of our wholly-owned subsidiaries, CT Investment Management Co. (as described in Note 3), CT-F1, LLC (direct member and equity owner of Fund I), CT Mezzanine Partners I LLC, CT-F2-LP, LLC (limited partner of Fund II), CT-F2-GP, LLC (direct member and equity owner of Fund II GP), CT-BB Funding Corp. (finance subsidiary for three mezzanine loans), CT LF Funding Corp. (finance subsidiary for all of our CMBS securities), Capital Trust RE CDO 2004-1 LTD (issuer of floating rate CDO securities), CT RE CDO 2004-1 Sub LLC (purchaser of unrated and non-investment grade securities of CDO) and VIC, Inc., which together with us wholly owns Victor Capital Group, L.P. All significant intercompany balances and transactions have been eliminated in consolidation. Revenue Recognition Interest income for our loans and investments is recognized over the life of the investment using the effective interest method and recognized on the accrual basis. Fees received in connection with loan commitments, net of direct expenses, are deferred until the loan is advanced and are then recognized over the term of the loan as an adjustment to yield. Fees on commitments that expire unused are recognized at expiration. Exit fees are also recognized over the estimated term of the loan as an adjustment to yield. Purchased discounts for credit quality are amortized over the estimated term of the loan as an adjustment to yields. Cash flows received in excess of original estimates are recognized prospectively as an adjustment to yield. Income recognition is generally suspended for loans at the earlier of the date at which payments become 90 days past due or when, in the opinion of management, a full recovery of income and principal becomes doubtful. Income recognition is resumed when the loan becomes contractually current and performance is demonstrated to be resumed. Fees from investment management services and special servicing are recognized when earned on an accrual basis. Fees from professional advisory services are generally recognized at the point at which all of our services have been performed and no significant contingencies exist with respect to entitlement to payment. Fees from asset management services are recognized as services are rendered. We account for incentive fees we can potentially earn from the Funds in accordance with Method 1 of Emerging Issues Task Force Topic D-96. Under Method 1, no incentive income is recorded until all contingencies have been eliminated. Method 1 is the preferred method as it eliminates the potential that revenue will be recognized in one quarter and reversed in a future quarter. Incentive income received prior to that date is recorded as unearned income (a liability). No incentive fees have been earned at December 31, 2004 and as such, no amount of such potential fees has been accrued as income in our financial statements. The amount of incentive fees to be received in the future will depend upon a number of factors, including the level of interest rates and the fund's ability to generate returns in excess of 10%, which is in turn impacted by the duration and ultimate performance of the fund's assets. Potential incentive fees received as Fund II winds down could result in significant additional income from operations in certain periods during which such payments can be recorded as income. If Fund II's assets were sold and liabilities were settled on January 1, 2005 at the recorded book value, and the fund's equity and income were distributed, we would record approximately $9.5 million of gross incentive fees. F-12 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Cash and Cash Equivalents We classify highly liquid investments with original maturities of three months or less from the date of purchase as cash equivalents. At December 31, 2004 and 2003, a majority of the cash and cash equivalents consisted of overnight investments in commercial paper. We had no bank balances in excess of federally insured amounts at December 31, 2004 and 2003. We have not experienced any losses on our demand deposits, commercial paper or money market investments. Restricted Cash Restricted cash is $611,000 on deposit with the trustee for CDO-1, representing the proceeds of loan repayments which will be used to purchase replacement loans (either from third parties or us) as collateral for the CDO. Available-for-Sale Securities and Commercial Mortgage-Backed Securities ("CMBS") We have designated our investments in commercial mortgage-backed securities and certain other securities as available-for-sale. Available-for-sale securities are carried at estimated fair value with the net unrealized gains or losses reported as a component of accumulated other comprehensive income/(loss) in shareholders' equity. Many of these investments are relatively illiquid and management must estimate their values. In making these estimates, management utilizes market prices provided by dealers who make markets in these securities, but may, under certain circumstances, adjust these valuations based on management's judgment. Changes in the valuations do not affect our reported income or cash flows, but impact shareholders' equity and, accordingly, book value per share. We account for CMBS under Emerging Issues Task Force 99-20, "Recognition of Interest Income and Impairment on Purchased and Retained Beneficial Interests in Securitized Financial Assets". Under Emerging Issues Task Force 99-20, when significant changes in estimated cash flows from the cash flows previously estimated occur due to actual prepayment and credit loss experience and the present value of the revised cash flows using the current expected yield is less than the present value of the previously estimated remaining cash flows, adjusted for cash receipts during the intervening period, an other-than-temporary impairment is deemed to have occurred. Accordingly, the security is written down to fair value with the resulting change being included in income and a new cost basis established with the original discount or premium written off when the new cost basis is established. In accordance with this guidance, on a quarterly basis, when significant changes in estimated cash flows from the cash flows previously estimated occur due to actual prepayment and credit loss experience, we calculate a revised yield based on the current amortized cost of the investment, including any other-than-temporary impairments recognized to date, and the revised cash flows. The revised yield is then applied prospectively to recognize interest income. Management must also assess whether unrealized losses on securities reflect a decline in value that is other than temporary, and, accordingly, write the impaired security down to its fair value, through a charge to earnings. We have assessed our securities to first determine whether there is an indication of possible other than temporary impairment and then where an indication exists to determine if other than temporary impairment did in fact exist. During the fourth quarter of 2004, we concluded that two of our CMBS investments had incurred other than temporary impairment and we incurred a charge of $5.9 million through the income statement. With respect to the remaining securities, we believe there has not been any adverse change in cash flows since inception, therefore we did not recognize any other than temporary impairment on the remaining CMBS investments. Significant judgment of management is required in this analysis that includes, but is not limited to, making assumptions regarding the collectibility of the principal and interest, net of related expenses, on the underlying loans. F-13 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Income on these available-for-sale securities is recognized based upon a number of assumptions that are subject to uncertainties and contingencies. Examples of these include, among other things, the rate and timing of principal payments, including prepayments, repurchases, defaults and liquidations, the pass-through or coupon rate and interest rate fluctuations. Additional factors that may affect our reported interest income on our mortgage-backed securities include interest payment shortfalls due to delinquencies on the underlying mortgage loans and the timing and magnitude of credit losses on the mortgage loans underlying the securities that are a result of the general condition of the real estate market, including competition for tenants and their related credit quality, and changes in market rental rates. These uncertainties and contingencies are difficult to predict and are subject to future events that may alter the assumptions. Loans Receivable and Reserve for Possible Credit Losses We purchase and originate commercial mortgage and mezzanine loans to be held as long-term investments at amortized cost. Management must periodically evaluate each of these loans for possible impairment. Impairment is indicated when it is deemed probable that we will not be able to collect all amounts due according to the contractual terms of the loan. If a loan were determined to be permanently impaired, we would write down the loan through a charge to the reserve for possible credit losses. Given the nature of our loan portfolio and the underlying commercial real estate collateral, significant judgment of management is required in determining permanent impairment and the resulting charge to the reserve, which includes but is not limited to making assumptions regarding the value of the real estate that secures the mortgage loan. Our accounting policies require that an allowance for estimated credit losses be reflected in our financial statements based upon an evaluation of known and inherent risks in our mortgage and mezzanine loans. Quarterly, management reevaluates the reserve for possible credit losses based upon our current portfolio of loans. Each loan in our portfolio is evaluated using our loan risk rating system which considers loan to value, debt yield, cash flow stability, exit plan, loans sponsorship, the loan structure and any other factors necessary to assess the loans likelihood of delinquency or default. If we believe that there is a potential for delinquency or default, a downside analysis is prepared to estimate the value of the collateral underlying our loan, and this potential loss is multiplied by the default likelihood. Actual losses, if any, could ultimately differ from these estimates. Equity investments in Fund I, Fund II, CT MP II LLC (which we refer to as Fund II GP) and Fund III (which together we refer to as Funds) As the Funds are not majority owned or controlled by us, we do not consolidate the Funds in our consolidated financial statements. We account for our interest in the Funds on the equity method of accounting. As such, we report a percentage of the earnings of the Funds equal to our ownership percentage on a single line item in the consolidated statement of operations as income from equity investments in the Funds. Equipment and Leasehold Improvements, Net Equipment and leasehold improvements, net, are stated at original cost less accumulated depreciation and amortization. Depreciation is computed using the straight-line method based on the estimated lives of the depreciable assets. Amortization is computed over the remaining terms of the related leases. Expenditures for maintenance and repairs are charged directly to expense at the time incurred. Expenditures determined to represent additions and betterments are capitalized. Cost of assets sold or retired and the related amounts of accumulated depreciation are eliminated from the accounts in the year of sale or retirement. Any resulting profit or loss is reflected in the consolidated statement of operations. F-14 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Deferred Financing Costs The deferred financing costs which are included in other assets on our consolidated balance sheets include issuance costs related to our debt and are amortized using the straight-line method which is similar to the results of the effective interest method. Derivative Financial Instruments In the normal course of business, we use a variety of derivative financial instruments to manage, or hedge, interest rate risk. These derivative financial instruments must be effective in reducing its interest rate risk exposure in order to qualify for hedge accounting. When the terms of an underlying transaction are modified, or when the underlying hedged item ceases to exist, all changes in the fair value of the instrument are marked-to-market with changes in value included in net income each period until the derivative instrument matures or is settled. Any derivative instrument used for risk management that does not meet the hedging criteria is marked-to-market with the changes in value included in net income. We use interest rate swaps to effectively convert variable rate debt to fixed rate debt for the financed portion of fixed rate assets. The differential to be paid or received on these agreements is recognized as an adjustment to the interest expense related to debt and is recognized on the accrual basis. We have also used interest rate caps to reduce our exposure to interest rate changes on investments. We would have received payments on an interest rate cap if the variable rate for which the cap was purchased exceed a specified threshold level and would have recorded an adjustment to the interest income related to the related earning asset. We had no interest rate caps in place at December 31, 2004. To determine the fair values of derivative instruments, we use a variety of methods and assumptions that are based on market conditions and risks existing at each balance sheet date. For the majority of financial instruments including most derivatives, long-term investments and long-term debt, standard market conventions and techniques such as discounted cash flow analysis, option pricing models, replacement cost, and termination cost are used to determine fair value. All methods of assessing fair value result in a general approximation of value, and such value may never actually be realized. The swap and cap agreements are generally held-to-maturity and we do not use derivative financial instruments for trading purposes. Income Taxes Our financial results generally do not reflect provisions for current or deferred income taxes on our REIT taxable income. Management believes that we have and intend to continue to operate in a manner that will continue to allow us to be taxed as a REIT and, as a result, do not expect to pay substantial corporate-level taxes (other than taxes payable by our taxable REIT subsidiaries). Many of these requirements, however, are highly technical and complex. If we were to fail to meet these requirements, we would be subject to Federal income tax. F-15 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Accounting for Stock-Based Compensation We comply with the provisions of the Financial Accounting Standards Board's Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation". Statement of Financial Accounting Standards No. 123 encourages the adoption of a fair-value based accounting method for employee stock-based compensation plans, but also permits companies to continue accounting for stock-based compensation plans as prescribed by Accounting Principles Board Opinion No. 25. However, companies electing to continue accounting for stock-based compensation plans under Accounting Principles Board Opinion No. 25 must make pro forma disclosures as if they adopted the cost recognition requirements of Statement of Financial Accounting Standards No. 123. Through December 31, 2003, we continued to account for stock-based compensation under Accounting Principles Board Opinion No. 25. Accordingly, no compensation cost has been recognized for the years ended December 31, 2003 and 2002 for awards under our stock plans in the accompanying consolidated statements of operations as the exercise price of the stock options granted thereunder equaled the market price of the underlying stock on the date of the grant. During the fourth quarter of 2004, we elected to adopt the fair value recognition provisions of Statement of Financial Accounting Standards No. 123 using the modified prospective method provided in Statement of Financial Accounting Standards No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure". Under the modified prospective method, we recognized stock-based employee compensation costs based upon the fair value recognition provisions of Statement of Financial Accounting Standards No. 123 effective January 1, 2004. Compensation expense is recognized on the accelerated attribution method under Financial Accounting Standards Board Interpretation No. 28. Pro forma information regarding net income and net earnings per share of common stock has been estimated at the date of the grant using the Black-Scholes option-pricing model based on the following assumptions for the year ended December 31, 2002 (no options were granted during the years ended December 31, 2004 and 2003): Risk-free interest rate 4.30% Volatility 25.0% Dividend yield 0.0% Expected life (years) 5.0 The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options that have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions including the expected stock price volatility. Because our employee stock options have characteristics significantly different from those of traded options, and because changes in the subjective input assumptions can materially affect the fair value estimate, in our opinion, the existing models do not necessarily provide a reliable single measure of the fair value of our employee stock options. The weighted average fair value of each stock option granted during the year ended December 31, 2002 was $1.64. For purposes of pro forma disclosures, the estimated fair value of the options is amortized to expense over the options' vesting period. Our pro forma information for the years ended December 31, 2003 and 2002 is as follows (in thousands, except for net earnings (loss) per share of common stock):
2003 2002 ------------------------------------------------- As As reported Pro forma reported Pro forma ----------- ------------------------ ------------ Net income $ 13,525 $ 13,280 $ (9,738) $ (10,038) Net earnings per share of common stock: Basic $ 2.27 $ 2.23 $ (0.54) $ (0.56) Diluted $ 2.23 $ 2.21 $ (0.54) $ (0.56)
F-16 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Comprehensive Income Effective January 1, 1998, we adopted the FASB's Statement of Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS No. 130"). The statement changes the reporting of certain items currently reported in the shareholders' equity section of the balance sheet and establishes standards for reporting of comprehensive income and its components in a full set of general-purpose financial statements. Total comprehensive income/(loss) was $59,671,000, $8,633,000 and ($8,817,000) for the years ended December 31, 2004, 2003 and 2002, respectively. The primary component of comprehensive income other than net income was the unrealized gain/(loss) on derivative financial instruments and available-for-sale securities, net of related income taxes for 2002. At December 31, 2004, accumulated other comprehensive income is $3,815,000 comprised of unrealized gains on CMBS of $3,621,000 and unrealized gains on cash flow swaps of $194,000. Earnings per Share of Common Stock Earnings per share of common stock are presented based on the requirements of the FASB's Statement of Accounting Standards No. 128 ("SFAS No. 128"). Basic EPS is computed based on the income applicable to common stock (which is net income or loss reduced by the dividends on the preferred stock) divided by weighted average number of shares of common stock outstanding during the period. Diluted EPS is based on the net earnings applicable to common stock plus, if dilutive, interest paid on convertible trust preferred securities, net of tax benefit, divided by weighted average number of shares of common stock and potentially dilutive shares of common stock that were outstanding during the period. At December 31, 2004, potentially dilutive shares of common stock include dilutive common stock options. At December 31, 2004 and 2003, potentially dilutive shares of common stock include convertible trust preferred securities and dilutive common stock options. At December 31, 2002, potentially dilutive shares of common stock include convertible trust preferred securities, dilutive common stock warrants and options and future commitments for stock unit awards. Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Reclassifications Certain reclassifications have been made in the presentation of the 2003 and 2002 consolidated financial statements to conform to the 2004 presentation. Segment Reporting We established two reportable segments beginning January 1, 2003. We have an internal information system that produces performance and asset data for its two segments along service lines. The Balance Sheet Investment segment includes all of our activities related to direct loan and investment activities (including direct investments in Funds) and the financing thereof. The Investment Management segment includes all of our activities related to investment management services provided to us and third-party funds under management and includes our taxable REIT subsidiary, CT Investment Management Co., LLC and its subsidiaries. F-17 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 5. Summary of Significant Accounting Policies, continued Prior to January 1, 2003, we managed our operations as one segment, therefore separate segment reporting is not presented for 2002, as the financial information for that segment is the same as the information in the consolidated financial statements. New Accounting Pronouncements On December 16, 2004, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 123(R), "Share-Based Payment", which is a revision of Statement of Financial Accounting Standards No. 123 and supersedes APB Opinion No. 25. Statement of Financial Accounting Standards No. 123(R) requires all share-based payments to employees, including grants of employee stock options, to be valued at fair value on the date of grant, and to be expensed over the applicable vesting period. Pro forma disclosure of the income statement effects of share-based payments is no longer an alternative. Statement of Financial Accounting Standards No. 123(R) is effective for all stock-based awards granted on or after July 1, 2005. In addition, companies must also recognize compensation expense related to any awards that are not fully vested as of the effective date. Compensation expense for the unvested awards will be measured based on the fair value of the awards previously calculated in developing the pro forma disclosures in accordance with the provisions of Statement of Financial Accounting Standards No. 123. As we have adopted Statement of Financial Accounting Standards No. No. 123 effective January 1, 2004, we do not believe that adoption of Statement of Financial Accounting Standards 123(R) will have a material impact on our future financial results. 6. Available-for-Sale Securities At December 31, 2003, our available-for-sale securities consisted of the following (in thousands):
Gross Amortized Unrealized Estimated --------------------- Cost Gains Losses Fair Value ----------------------------------------------- Federal Home Loan Mortgage Corporation Gold, fixed rate interest at 6.50%, due September 1, 2031 $ 2,368 $ 89 $ -- $ 2,457 Federal Home Loan Mortgage Corporation Gold, fixed rate interest at 6.50%, due September 1, 2031 8,418 269 -- 8,687 Federal Home Loan Mortgage Corporation Gold, fixed rate interest at 6.50%, due September 1, 2031 721 28 -- 749 Federal Home Loan Mortgage Corporation Gold, fixed rate interest at 6.50%, due April 1, 2032 7,784 375 -- 8,159 ----------------------------------------------- $ 19,291 $ 761 $ -- $ 20,052 ===============================================
On June 14, 2004, we sold our entire portfolio of available-for-sale securities for a gain of $300,000 over their amortized cost. 7. Commercial Mortgage-Backed Securities We acquire rated and unrated subordinated investments in public and private CMBS issues. Because of a decision to sell a held-to-maturity security in 1998, we transferred all of our investments in commercial mortgage-backed securities from held-to-maturity securities to available-for-sale and continue to classify the CMBS as such. F-18 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 7. Commercial Mortgage-Backed Securities, continued On March 3, 1999, through our then newly formed wholly-owned subsidiary, CT-BB Funding Corp., we acquired a portfolio of fixed rate "BB" rated CMBS from an affiliate of a then existing credit facility lender. The portfolio, which is comprised of 11 separate issues with an aggregate face amount of $246.0 million, was purchased for $196.9 million. In connection with the transaction, an affiliate of the seller provided three-year term financing for 70% of the purchase price at a floating rate above the London Interbank Offered Rate, or LIBOR, and entered into an interest rate swap for the full duration of the portfolio securities thereby providing a hedge for interest rate risk. The financing was provided at a rate that was below the current market for similar financings and, as such, we reduced the carrying amounts of the assets and the debt by $10.9 million to adjust the yield on the debt to current market terms. In June 2002, three sales of CMBS in two issues were completed. The securities, which were specifically identified and had a basis of $31,012,000 including amortization of discounts, were sold for $31,371,000 resulting in a net gain of $359,000. During the year ended December 31, 2003, we purchased $6,542,000 face amount of interests in two CMBS issues for $6,157,000. During the year ended December 31, 2004, we purchased four investments in three separate issues of commercial mortgage-backed securities. The securities had a face value of $61,293,000 and were purchased at a discount for $59,551,000. During the year ended December 31, 2004, we received full satisfaction of one of the issues purchased in 2003 for $5,000,000 and received amortization payments of $48,000 on one of the issues purchased in 2004. During the fourth quarter of 2004, we concluded that two of our CMBS investments with face amounts totaling $11.7 million had incurred other than temporary impairment due to changes in the expected cash flows and recorded a charge of $5.9 million through the income statement to record these two investments at the current market value. Our estimates of recoverability indicate that we will not recover $1.8 million of the face value on one of the securities written down and expect full collection of the face value on the other security. We expect a full recovery from our other securities and did not recognize any other than temporary impairment on the remaining CMBS investments. At December 31, 2004, four CMBS issues with an aggregate market value of $35.5 million and unrealized losses of $10.7 million have been in an unrealized loss position for greater than twelve months. One additional security with a market value of $29.2 million and unrealized losses of $70,000 have been in a loss position for less than twelve months. We believe that these market value losses are temporary. We do not expect any actual losses in the classes of the bonds that we hold and expect the value of the individual bonds will increase as currently delinquent loans are resolved and the bonds approach maturity. At December 31, 2004, we held nineteen investments in fourteen separate issues of commercial mortgage-backed securities with an aggregate face value of $271,757,000. Commercial mortgage-backed securities with a face value of $61,245,000 earn interest at a variable rate, which averages the London Interbank Offered Rate, or LIBOR, plus 2.28% (4.67% at December 31, 2004). The remaining commercial mortgage-backed securities, $210,512,000 face value, earn interest at fixed rates averaging 7.65% of the face value. We purchased all of the commercial mortgage-backed securities at discounts. As of December 31, 2004, the remaining discount to be amortized into income over the remaining lives of the securities was $22,338,000. At December 31, 2004, with discount amortization, the commercial mortgage-backed securities earn interest at a blended rate of 8.58% of the fair value net of the unamortized discount. As of December 31, 2004, the securities were carried at fair value of $247,765,000, reflecting a $3,621,000 unrealized gain to their amortized cost. The CMBS mature at various dates from October 2005 to September 2015. At December 31, 2004, the expected average life for the CMBS portfolio is 75 months. F-19 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 8. Loans Receivable We have classified our loans receivable into the following general categories: o First Mortgage Loans - These are single-property secured loans evidenced by a primary first mortgage and senior to any mezzanine financing and the owner's equity. These loans are bridge loans for equity holders who require interim financing until permanent financing can be obtained. Our first mortgage loans are generally not intended to be permanent in nature, but rather are intended to be of a relatively short-term duration, with extension options as deemed appropriate, and typically require a balloon payment of principal at maturity. We may also originate and fund permanent first mortgage loans in which we intend to sell the senior tranche, thereby creating a property mezzanine loan (as defined below). o Property Mezzanine Loans - These are single-property secured loans which are subordinate to a primary first mortgage loan, but senior to the owner's equity. A mezzanine loan is evidenced by its own promissory note and is typically made to the owner of the property-owning entity (i.e. the senior loan borrower). It is not secured by the first mortgage on the property, but by a pledge of all of the mezzanine borrower's ownership interest in the property-owning entity. Subject to negotiated contractual restrictions, the mezzanine lender has the right, following foreclosure, to become the sole indirect owner of the property subject to the lien of the primary mortgage. o B Notes - These are loans evidenced by a junior participation in a first mortgage against a single property; the senior participation is known as an A Note. Although a B Note may be evidenced by its own promissory note, it shares a single borrower and mortgage with the A Note and is secured by the same collateral. B Note lenders have the same obligations, collateral and borrower as the A Note lender and in most instances are contractually limited in rights and remedies in the case of a default. The B Note is subordinate to the A Note by virtue of a contractual arrangement between the A Note lender and the B Note lender. For the B Note lender to actively pursue a full range of remedies, it must, in most instances, purchase the A note. o Corporate Mezzanine Loans - These are investments in or loans to real estate-related operating companies, including REITs. Such loan investments take the form of secured debt and may finance, among other things, operations, mergers and acquisitions, management buy-outs, recapitalizations, start-ups and stock buy-backs generally involving real estate and real estate-related entities. At December 31, 2004 and 2003, our loans receivable consisted of the following (in thousands): 2004 2003 ---------------- --------------- First mortgage loans $ 3,038 $ 12,672 Property mezzanine loans 159,506 106,449 B Notes 393,620 64,600 --------------- --------------- 556,164 183,721 Less: reserve for possible credit losses -- (6,672) --------------- --------------- Total loans $ 556,164 $ 177,049 =============== =============== F-20 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 8. Loans Receivable, continued In connection with our purchase of the Fund I interest held by an affiliate of Citigroup Alternative Investments in January 2003, we recorded additional loans receivable of $50,034,000 and recorded a $1,690,000 increase to the reserve for possible credit losses on the acquisition date. The assets were recorded at their carrying value from Fund I, which approximated the market value on the acquisition date. One first mortgage loan with an original principal balance of $8,000,000 reached maturity on July 15, 2002 and has not been repaid with respect to principal and interest. In December 2002, the loan was written down to $4,000,000 through a charge to the allowance for possible credit losses. During the years ended December 31, 2004 and 2003, we received proceeds of $231,000 and $731,000, respectively, reducing the carrying value of the loan to $3,038,000. In accordance with our policy for revenue recognition, income recognition has been suspended on this loan and for the years ended December 31, 2004, 2003 and 2002, $930,000, $912,000 and $958,000, respectively, of potential interest income has not been recorded. During the year ended December 31, 2004, we purchased or originated six property mezzanine loans for $77,282,000 and 63 B Notes for $412,420,000, received partial repayments on 34 loans totaling $18,215,000 and one mortgage loan, three property mezzanine loan and twelve B Notes totaling $98,207,000 were satisfied and repaid. We have no outstanding loan commitments at December 31, 2004. At December 31, 2004, the weighted average interest rate in effect, including amortization of fees and premiums, for our performing loans receivable were as follows: Property mezzanine loans 9.22% B Notes 7.05% Total Loans 7.68% At December 31, 2004, $472,397,000 (85%) of the aforementioned performing loans bear interest at floating rates ranging from LIBOR plus 300 basis points to LIBOR plus 900 basis points. The remaining $80,729,000 (15%) of loans bear interest at fixed rates ranging from 8.12% to 11.67%. The range of maturity dates and weighted average maturity at December 31, 2004 of our performing loans receivable was as follows: Weighted Average Range of Maturity Dates Maturity ---------------------------------- ---------- Property mezzanine loans January 2006 to September 2011 42 Months B Notes April 2005 to August 2008 17 Months Total Loans April 2005 to September 2011 24 Months There are no loans to a single borrower or to related groups of borrowers that exceed ten percent of total assets. Approximately 14% and 12% of all performing loans are secured by properties in New York and Florida, respectively. Approximately 30% of all performing loans are secured by office buildings and approximately 27% are secured by hotels. These credit concentrations are adequately collateralized as of December 31, 2004. In connection with the aforementioned loans, at December 31, 2004 and 2003, we have deferred origination fees, net of direct costs of $541,000 and $828,000, respectively, which are being amortized into income over the life of the loan. At December 31, 2004 and 2003, we have recorded $99,000 and $86,000, respectively, of exit fees, which will be collected at the loan pay-off. These fees are recorded as interest income on a basis to realize a level yield over the life of the loans. F-21 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 8. Loans Receivable, continued As of December 31, 2004, performing loans totaling $481,199,000 are pledged as collateral for borrowings on our credit facility, repurchase agreements and term redeemable securities contract. Quarterly, management reevaluates the reserve for possible credit losses based upon our current portfolio of loans. Each loan in our portfolio is evaluated using our loan risk rating system which considers loan to value, debt yield, cash flow stability, exit plan, loans sponsorship, the loan structure and any other factors necessary to assess the likelihood of delinquency or default. If we believe that there is a potential for delinquency or default, a downside analysis is prepared to estimate the value of the collateral underlying our loan, and this potential loss is multiplied by the default likelihood. A detailed review of the entire portfolio was completed at December 31, 2004 and certain loans that we previously had specific concerns about were either repaid or the conditions which caused the concern were eliminated. Based upon the changes in conditions of these loans and the evaluations completed on the remainder of the portfolio, we concluded that a reserve for possible credit losses was no longer warranted and the reserve was recaptured. The activity on the reserve for possible credit losses on loans receivable was as follows for the years ended December 31, 2004, 2003 and 2002 (in thousands):
2004 2003 2002 -------------- -------------- -------------- Beginning balance $ 6,672 $ 4,982 $ 13,695 Provision for (recapture of) allowance for possible credit losses (6,672) -- (4,713) Additional reserve established with Fund I purchase -- 1,690 -- Amounts charged against reserve for possible credit losses -- -- (4,000) -------------- -------------- -------------- Ending balance $ -- $ 6,672 $ 4,982 ============== ============== ==============
9. Equity Investment in Funds Fund I As part of the venture with Citigroup Alternative Investments, as described in Note 3, we held an equity investment in Fund I during the years ended December 31, 2003 and 2002. The activity for our equity investment in Fund I for the years ended December 31, 2003 and 2002 was as follows (in thousands): 2003 2002 -------------- -------------- Beginning balance $ 6,609 $ 21,087 Capital contributions to Fund I -- -- Company portion of Fund I income/(loss) 143 (4,345) Distributions from Fund I -- (10,133) Purchase of remaining fund equity (6,752) -- -------------- -------------- Ending balance $ -- $ 6,609 ============== ============== As of December 31, 2002, Fund I had loans outstanding totaling $50,237,000, all of which were performing in accordance with the terms of the loan agreements. One loan for $26.0 million, which was in default and for which the accrual of interest had been suspended, was written down to $212,000 and distributed pro-rata to the members in December 2002. Upon receipt of our share of the loan with a face amount of $6,500,000, we disposed of the asset. On January 31, 2003, we purchased from an affiliate of Citigroup Alternative Investments its 75% interest in Fund I for $38.4 million (including the assumption of liabilities). As of January 31, 2003, we began consolidating the operations of Fund I in our consolidated financial statements. For the years ended December 31, 2003 and 2002, we received $17,000 and $530,000, respectively, of fees for management of Fund I. F-22 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 9. Equity investment in Funds, continued Fund II We had equity investments in Fund II during the years ended December 31, 2004, 2003 and 2002. We account for Fund II on the equity method of accounting as we have a 50% ownership interest in the general partner of Fund II. The activity for our equity investment in Fund II for the years ended December 31, 2004, 2003 and 2002 was as follows (in thousands):
2004 2003 2002 -------------- -------------- -------------- Beginning balance $ 9,209 $ 12,277 $ 7,024 Capital contributions to Fund II -- 5,459 5,150 Company portion of Fund II income 1,975 2,144 1,810 Distributions from Fund II (8,125) (10,671) (1,707) -------------- -------------- -------------- Ending balance $ 3,059 $ 9,209 $ 12,277 ============== ============== ==============
As of December 31, 2004, Fund II has loans and investments outstanding totaling $131,912,000, all of which are performing in accordance with the terms of the loan agreements. For the years ended December 31, 2004, 2003 and 2002, we received $1,815,000, $3,904,000 and $8,089,000, respectively, of fees for management of Fund II. Fund II GP Fund II GP serves as the general partner for Fund II. Fund II GP is owned 50% by us and 50% by Citigroup. We had equity investments in Fund II GP during the years ended December 31, 2004, 2003 and 2002. The activity for our equity investment in Fund II GP was as follows (in thousands):
2004 2003 2002 -------------- -------------- -------------- Beginning balance $ 3,470 $ 3,499 $ 2,675 Capital contributions to Fund II GP -- 757 823 Company portion of Fund II GP income/(loss) (339) (786) 1 Distributions from Fund II GP (700) -- -- -------------- -------------- -------------- Ending balance $ 2,431 $ 3,470 $ 3,499 ============== ============== ==============
In addition, we earned $600,000 and $1,505,000 of consulting fees from Fund II GP during the years ended December 31, 2003 and 2002, respectively. At December 31, 2002, we had receivables of $380,000 from Fund II GP, which is included in prepaid and other assets. In accordance with the limited partnership agreement of Fund II, Fund II GP may earn incentive compensation when certain returns are achieved for the limited partners of Fund II, which will be accrued if and when earned. F-23 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 9. Equity investment in Funds, continued Fund III On June 2, 2003, Fund III, our third commercial real estate mezzanine investment fund co-sponsored with affiliates of Citigroup Alternative Investments, effected its initial closing. Fund III commenced its investment operations immediately following the initial closing and on June 27, 2003, July 17, 2003 and August 8, 2003, respectively, Fund III effected its second, third and final closings resulting in total equity commitments in Fund III of $425.0 million. The equity commitments made to Fund III by us and affiliates of Citigroup Alternative Investments are $20.0 million and $80.0 million, respectively. The activity for our equity investment in Fund III was as follows (in thousands): 2004 2003 -------------- -------------- Beginning balance $ 3,563 $ -- Capital invested 8,460 2,800 Costs capitalized -- 914 Company portion of Fund III income 772 25 Amortization of capitalized costs (153) (88) Distributions received from Fund III (1,657) (88) -------------- -------------- Ending balance $ 10,985 $ 3,563 ============== ============== As of December 31, 2004, Fund III has loans and investments outstanding totaling $602,386,000, all of which are performing in accordance with the terms of the loan agreements. Based upon the $425.0 million aggregate equity commitments made at the initial and subsequent closings, during the investment period of Fund III, we will earn annual investment management fees of $6.0 million through the service of our subsidiary, CT Investment Management Co., as investment manager to Fund III. During the years ended December 31, 2004 and 2003, we received 6,038,000 and $3,500,000, respectively, of fees for management of Fund III. Investment Costs Capitalized In connection with entering into the venture agreement and related fund business, we capitalized certain costs, including the cost of warrants issued and legal costs incurred in negotiating and concluding the venture agreement with Citigroup Alternative Investments. These costs are being amortized over the expected life of the fund business and related venture agreement (10 years). The activity for these investment costs for the years ended December 31, 2004, 2003 and 2002 was as follows (in thousands):
2004 2003 2002 -------------- -------------- -------------- Beginning balance $ 5,745 $ 6,589 $ 7,443 Costs capitalized -- -- -- Amortization of capitalized costs (844) (844) (854) -------------- -------------- -------------- Ending balance $ 4,901 $ 5,745 $ 6,589 ============== ============== ==============
F-24 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 10. Equipment and Leasehold Improvements At December 31, 2004 and 2003, equipment and leasehold improvements, net, are summarized as follows (in thousands):
Period of Depreciation or Amortization 2004 2003 -------------------------- -------------- --------------- Office and computer equipment 1 to 3 years $ 671 $ 566 Furniture and fixtures 5 years 159 146 Leasehold improvements Term of leases 389 388 -------------- --------------- 1,219 1,100 Less: accumulated depreciation (912) (808) -------------- --------------- $ 307 $ 292 ============== ===============
Depreciation and amortization expense on equipment and leasehold improvements, which are computed on a straight-line basis, totaled $104,000, $124,000 and $138,000 for the years ended December 31, 2004, 2003 and 2002, respectively. Equipment and leasehold improvements are included at their depreciated cost in prepaid and other assets in the consolidated balance sheets. 11. Long-Term Debt Credit Facility Effective June 27, 2003, we entered into a credit agreement with a commercial lender who has been providing credit to us since June 8, 1998. The $150 million credit facility matures July 16, 2005 and has an automatic nine month amortizing extension option, if not otherwise extended. We incurred an initial commitment fee of $1,425,000 upon the signing of this new agreement which is being amortized over the term of the agreement. The credit facility provides for advances to fund lender-approved loans and investments made by us, which we refer to as "funded portfolio assets". Our obligations under the credit facility are secured by pledges of the funded portfolio assets acquired with advances under the credit facility. Borrowings under the credit facility bears interest at specified rates over LIBOR, which rates may fluctuate, based upon the credit quality of the funded portfolio assets. This facility is also subject to a minimum usage fee if average borrowings for a quarter are less than a threshold amount. The credit facility provides for margin calls on asset-specific borrowings in the event of asset quality and/or market value deterioration as determined under the credit facility. The credit facility contains customary representations and warranties, covenants and conditions and events of default. The credit facility also contains a covenant obligating us to avoid undergoing an ownership change that results in John R. Klopp or Samuel Zell no longer retaining their senior offices and directorships with us and practical control of our business and operations. At December 31, 2004, we have borrowed $65,176,000 under the credit facility at an average interest rate of LIBOR plus 1.74% (4.02% at December 31, 2004). On December 31, 2004, the unused amount of potential credit under the remaining credit facility was $84,824,000. Assuming no additional utilization under the credit facility and including the amortization of fees paid and capitalized over the term of the credit facility, the all-in effective borrowing cost was 5.37% at December 31, 2004. We have pledged assets of $107,384,000 as collateral for the borrowing against such credit facility. F-25 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 11. Long-Term Debt, continued Term Redeemable Securities Contract In connection with the purchase of our BB CMBS portfolio as previously described in Note 6, an affiliate of the seller provided financing for 70% of the purchase price, or $137.8 million, at a floating rate of LIBOR plus 50 basis points pursuant to a term redeemable securities contract. This rate was below the market rate for similar financings, and, as such, a discount on the term redeemable securities contract was recorded to reduce the carrying amount by $10.9 million, which had the effect of adjusting the yield to current market terms. The debt had a three-year term that expired in February 2002. On February 28, 2002, we entered into a new term redeemable securities contract. This term redeemable securities contract was utilized to finance certain of the assets that were previously financed with a maturing credit facility and term redeemable securities contract. The term redeemable securities contract, which allowed for a maximum financing of $75 million, was recourse to us and had a two-year term with an automatic one-year amortizing extension option, if not otherwise extended. We incurred an initial commitment fee of $750,000 upon the signing of the term redeemable securities contract and we paid interest at specified rates over LIBOR. This term redeemable securities contract expired on February 28, 2004 and was repaid with the financed assets being financed under the credit facility. Repurchase Obligations At December 31, 2004, we were obligated to three counterparties under repurchase agreements. The repurchase obligation with the first counterparty, an affiliate of a securities dealer, was utilized to finance commercial mortgage-backed securities. At December 31, 2004, we have sold commercial mortgage-backed securities with a book and market value of $245,993,000 and have a liability to repurchase these assets for $152,435,000 that is non-recourse to us. At December 31, 2003, we sold commercial mortgage-backed securities assets with a book and market value of $151,964,000 and had a liability to repurchase these assets for $88,365,000. This repurchase obligation had an original one-year term that expired in February 2003 and was extended three times to its current maturity in March 2006. The liability balance bears interest at specified rates over LIBOR based upon each asset included in the obligation. The first repurchase obligation with the second counterparty, a securities dealer, was entered into on May 28, 2003 pursuant to the terms of a master repurchase agreement that, as increased in August 2003, allows us to incur $100.0 million of repurchase obligations to finance specific assets. At December 31, 2004, the master repurchase agreement has been utilized to finance three loans. At December 31, 2004, we have sold loans with a book and market value of $32,645,000 and have a liability to repurchase these assets for $26,500,000 and can borrow an additional $98,000 without the need to pledge additional assets as collateral. At December 31, 2003, we sold loans with a book and market value of $53,197,000 and had a liability to repurchase these assets for $16,982,000. The master repurchase agreement was extended during 2004 and now terminates on June 1, 2006 and bears interest at specified rates over LIBOR based upon each asset included in the obligation. The second repurchase obligation with the second counterparty, was entered into on August 17, 2004 pursuant to the terms of a master repurchase agreement that allows us to incur $50.0 million of repurchase obligations to finance specific assets. At December 31, 2004, the master repurchase agreement has been utilized to finance nine loans. At December 31, 2004, we have sold loans with a book and market value of $32,215,000 and have a liability to repurchase these assets for $20,424,000. The master repurchase agreement terminates on September 1, 2007, and bears interest at specified rates over LIBOR based upon each asset included in the obligation. F-26 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 11. Long-Term Debt, continued The repurchase obligations with the third counterparty, a securities dealer, were entered into to finance three loans. At December 31, 2004, we have sold loans with a book and market value of $31,140,000 and have a liability to repurchase these assets for $25,732,000. At December 31, 2003, we sold a loan with a book and market value of $16,325,000 and had a liability to repurchase this asset for $13,876,000. The repurchase agreements have current maturity dates ranging from March 2005 to August 2005. The average borrowing rate in effect for all the repurchase obligations outstanding at December 31, 2004 was LIBOR plus 1.02% (3.32% at December 31, 2004). Assuming no additional utilization under the repurchase obligations and including the amortization of fees paid and capitalized over the term of the repurchase obligations, the all-in effective borrowing cost was 3.41% at December 31, 2004. At December 31, 2003, we were obligated to two other counterparties under repurchase agreements in addition to those above. The repurchase obligation with the first counterparty, a securities dealer, arose in connection with the purchase of Federal Home Loan Mortgage Corporation Gold available-for-sale securities. At December 31, 2003, we had sold such assets with a book and market value of $20,052,000 and had a liability to repurchase these assets for $19,461,000. This repurchase agreement was repaid in full when the securities were sold during 2004. The liability balance bore interest at LIBOR. The repurchase obligations with the other counterparty, a securities dealer, were entered into during the 2003 in connection with the purchase of a loan and CMBS securities. At December 31, 2003, we sold a loan and CMBS with a book and market value of $9,950,000 and had a liability to repurchase these assets for $8,210,000. The repurchase agreements were matched to the term of the underlying loan and CMBS and were repaid when the assets were repaid in 2004. The repurchase agreements bore interest at specified rates over LIBOR based upon each asset included in the obligation. The average borrowing rate in effect for all the repurchase obligations outstanding at December 31, 2003 was LIBOR plus 0.99% (2.15% at December 31, 2003). Assuming no additional utilization under the repurchase obligations and including the amortization of fees paid and capitalized over the term of the repurchase obligations, the all-in effective borrowing cost was 2.65% at December 31, 2003. Collateralized Debt Obligations On July 20, 2004, we issued six tranches of investment grade collateralized debt obligations, commonly known as CDOs, to third party investors through our wholly-owned subsidiary Capital Trust RE CDO 2004-1 Ltd., which we refer to as CDO-1. In the transaction, CDO-1 issued secured investment grade rated CDOs with a principal amount of $252,778,000, and we purchased through a wholly-owned subsidiary the four remaining tranches of unrated and below investment grade rated CDOs and the equity interests issued by CDO-1. CDO-1 is a variable interest entity and our ownership of the unrated and non-investment grade tranches results in us being the primary beneficiary. As such, we consolidate the activity of CDO-1 in our financial statements. Proceeds from the sale of six investment grade tranches issued by CDO-1 were used to purchase a $251.2 million portfolio of B notes and mezzanine loans from a third party which are held as collateral in CDO-1. The $72.9 million remaining assets pledged as collateral in CDO-1 were contributed from our existing portfolio of loans and CMBS. CDO-1 holds these assets, along with cash, which totals $324,074,000 as collateral for the CDOs. The six investment grade tranches were issued with floating rate coupons with a combined weighted average rate of LIBOR + 0.62% (3.03% at December 31, 2004), have a remaining expected average maturity of 4.5 years as of December 31, 2004, are treated as a secured financing and are non-recourse to us. We incurred $5,508,000 of issuance costs which will be amortized on a level yield basis over the average life of CDO-1 raising the all-in effective borrowing cost to LIBOR plus 1.04%. CDO-1 was structured to match fund the cash flows from a significant portion of our existing and newly acquired B notes, mezzanine loans and CMBS. F-27 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 12. Derivative Financial Instruments We account for derivative financial instruments in accordance with Statement of Financial Accounting Standards No. 133, "Accounting for Derivative Instruments and Hedging Activities," as amended by Statement of Financial Accounting Standards No. 138, "Accounting for Certain Derivative Instruments and Certain Hedging Activities." Statement of Financial Accounting Standards No. 133 requires an entity to recognize all derivatives as either assets or liabilities in the consolidated balance sheets and to measure those instruments at fair value. Additionally, the fair value adjustments will affect either shareholders' equity or net income depending on whether the derivative instrument qualifies as a hedge for accounting purposes and, if so, the nature of the hedging activity. In the normal course of business, we are exposed to the effect of interest rate changes. We limit these risks by following established risk management policies and procedures including those for the use of derivatives. For interest rate exposures, derivatives are used primarily to align rate movements between interest rates associated with our loans and other financial assets with interest rates on related debt financing, and manage the cost of borrowing obligations. We do not use derivatives for trading or speculative purposes. Further, we have a policy of only entering into contracts with major financial institutions based upon their credit ratings and other factors. When viewed in conjunction with the underlying and offsetting exposure that the derivatives are designed to hedge, we have not sustained a material loss from those instruments, nor do we anticipate any material adverse effect on our net income or financial position in the future from the use of derivatives. To manage interest rate risk, we may employ options, forwards, interest rate swaps, caps and floors or a combination thereof depending on the underlying exposure. To reduce overall interest cost, we use interest rate instruments, typically interest rate swaps, to convert a portion of our variable rate debt to fixed rate debt. Interest rate differentials that arise under these swap contracts are recognized as interest expense over the life of the contracts. Financial reporting for hedges characterized as fair value hedges and cash flow hedges are different. For those hedges characterized as a fair value hedge, the changes in fair value of the hedge and the hedged item are reflected in earnings each quarter. In the case of the fair value hedges, we are hedging the component of interest rate risk that can be directly controlled by the hedging instrument, and it is this portion of the hedged assets that is recognized in earnings. The non-hedged balance is classified as an available-for-sale security consistent with Statement of Financial Accounting Standards No. 115, "Accounting for Certain Investments in Debt and Equity Securities," and is reported in accumulated other comprehensive income. For those hedges characterized as cash flow hedges, the unrealized gains/losses in the fair value of these hedges are reported on the balance sheet with a corresponding adjustment to either accumulated other comprehensive income or to earnings, depending on the type of hedging relationship. We undertook a fair value hedge to sustain the value of our CMBS holdings. This fair value hedge, when viewed in conjunction with the fair value of the securities, was intended to sustain the value of those securities as interest rates rise and fall. During the period from January 1, 2002 to December 20, 2002, we recognized a loss of $16,234,000 for the decrease in the value of the swap which was substantially offset by a gain of $15,924,000 for the change in the fair value of the securities attributed to the hedged risk resulting in a $310,000 charge to unrealized loss on derivative securities on the consolidated statement of operations. In conjunction with the sale of the CMBS in 2002, in order to maintain the effectiveness of the hedge, we reduced the maturity of the fair value hedge from December 2014 to November 2009 and recognized a realized gain for the payments received totaling $940,000. On December 23, 2002, in order to eliminate accumulated earnings and profits in anticipation of our election of REIT status for tax purposes, the fair value hedge was settled resulting in a realized loss of $23.6 million. F-28 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 12. Derivative Financial Instruments, continued We utilize cash flow hedges in order to better control interest costs on variable rate debt transactions. Interest rate swaps that convert variable payments to fixed payments, interest rate caps, floors, collars, and forwards are considered cash flow hedges. During the period from January 1, 2002 to December 20, 2002, the fair value of the cash flow swaps decreased by $3.3 million, which was deferred into other comprehensive loss until the cash flow hedges were settled on December 23, 2002 and the settlement amount of $6.7 million was recorded as a charge to earnings. During the period from January 1, 2002 to December 20, 2002, we recognized a loss of $62,000 for the change in time value for qualifying interest rate hedges. The time value is a component of fair value that must be recognized in earnings, and is shown in the consolidated statement of operations as unrealized loss on derivative securities. When the interest rate cap was settled on December 23, 2002, we recognized a realized loss of $51,000 on the consolidated statement of operations. In 2002, we entered into two cash flow hedge contracts and in 2004, we entered into two new cash flow hedge contracts. The following table summarizes the notional value and fair value of our derivative financial instruments at December 31, 2004.
Interest Hedge Type Notional Value Rate Maturity Fair Value - ----------- -------------------- ----------------- ---------------- ------------ --------------- Swap Cash Flow Hedge $85,000,000 4.2425% 2015 ($37,000) Swap Cash Flow Hedge 24,000,000 4.2325% 2015 4,000 Swap Cash Flow Hedge 19,437,000 3.9500% 2011 185,000 Swap Cash Flow Hedge 5,566,000 3.1175% 2007 42,000
On December 31, 2004, the derivative financial instruments were reported at their fair value as interest rate hedge assets and the increase in the fair value of the cash flow swaps from $168,000 at December 31, 2003 to $194,000 at December 31, 2004 was deferred into other comprehensive income and will be released to earnings over the remaining lives of the swaps. The amount of the hedges' ineffectiveness is immaterial and reported as a component of interest expense. Over time, the unrealized gains and losses held in accumulated other comprehensive income will be reclassified to earnings. This reclassification is consistent with the timing of when the hedged items are also recognized in earnings. Within the next twelve months, we estimate that $1.5 million currently held in accumulated other comprehensive income will be reclassified to earnings, with regard to the cash flow hedges. 13. Convertible Junior Subordinated Debentures On July 28, 1998, we sold 8.25% step up convertible junior subordinated debentures in the aggregate principal amount of $154,650,000 to CT Convertible Trust I, referred to as the "Trust". The Trust then privately placed and originally issued 150,000 8.25% step up convertible trust preferred securities (liquidation amount $1,000 per security) with an aggregate liquidation amount of $150 million to third parties. The convertible trust preferred securities represented an undivided beneficial interest in the assets of the Trust that consisted solely of the step up convertible junior subordinated debentures that were concurrently sold and originally issued to the Trust. The common interest in the Trust was sold to us for $4,650,000. The debentures and trust securities were subsequently modified and then redeemed and/or converted into class A common stock as discussed below. Payments of interest on the step up convertible junior subordinated debentures were payable quarterly in arrears on each calendar quarter-end and equal the amounts necessary for the payment of distributions on the convertible trust preferred securities. Distributions were payable only to the extent payments were made in respect to the convertible debentures. F-29 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 13. Convertible Junior Subordinated Debentures, continued We received $145,207,000 in net proceeds, after original issue discount of 3% from the liquidation amount of the convertible trust preferred securities and transaction expenses, pursuant to the above transactions, which were used to pay down our credit facilities. The convertible trust preferred securities were initially convertible into shares of class A common stock at an initial rate of 85.47 shares of class A common stock per $1,000 principal amount of the convertible debentures held by the Trust (which was equivalent to a conversion price of $35.10 per share of class A common stock). On May 10, 2000, we modified the terms of the step up convertible junior subordinated debentures canceling the original underlying convertible debentures and new 8.25% step up convertible junior subordinated debentures in the aggregate principal amount of $92,524,000 and new 13% step up non-convertible junior subordinated debentures in the aggregate principal amount of $62,126,000 were issued to the Trust. In connection with the modification, the then outstanding convertible trust preferred securities were canceled and new variable step up convertible trust preferred securities with an aggregate liquidation amount of $150,000,000 were issued to the holders of the canceled securities in exchange therefore. The liquidation amount of the new convertible trust preferred securities was divided into $89,742,000 of convertible amount and $60,258,000 of non-convertible amount, the distribution, redemption and, as applicable, conversion terms of which, mirrored the interest, redemption and, as applicable, conversion terms of the new convertible debentures and the new non-convertible debentures, respectively, held by the Trust. Payments of interest on the new step up convertible junior subordinated debentures are payable quarterly in arrears on each calendar quarter-end equaled the distributions made on the new convertible trust preferred securities. Distributions on the new convertible trust preferred securities were payable only to the extent payments were made in respect to the new debentures. The new step up convertible junior subordinated debentures initially bore a blended coupon rate of 10.16% per annum which rate was to vary as the proportion of outstanding convertible amount to the outstanding non-convertible amount changes and step up in accordance with the coupon rate step up terms applicable to the convertible amount and the non-convertible amount. The convertible amount bore a coupon rate of 8.25% per annum through March 31, 2002 and increased on April 1, 2002 to 10.00% per annum. The convertible amount was convertible into shares of class A common stock, in increments of $1,000 in liquidation amount, at a conversion price of $21.00 per share. On September 30, 2002, the non-convertible debentures were redeemed in full, utilizing additional borrowings from the credit facility and repurchase agreements, resulting in a corresponding redemption in full of the related non-convertible amount of convertible trust preferred securities. In connection with the redemption transaction, we expensed the remaining unamortized discount and fees on the redeemed non-convertible amount resulting in $586,000 of additional expense for the year ended December 31, 2002. Prior to redemption, the non-convertible amount bore a coupon rate of 13.00% per annum. On July 28, 2004, certain holders of the step up convertible junior subordinated debentures outstanding converted $44,871,000 of the debentures into 2,136,711 shares of class A common stock and sold the shares in our public offering. On September 29, 2004, following our issuance of a notice of redemption to be effected on September 30, 2004, $44,871,000 of the outstanding convertible debentures were converted into 2,136,711 shares of our class A common stock at a conversion price of approximately $21.00 per share. The remaining $2,982,000 due on the convertible debentures was repaid to the Trust and then the Trust redeemed the common securities held by us. For financial reporting purposes, in accordance with Financial Accounting Standards Board Interpretation No. 46, "Consolidation of Variable Interest Entities," we are not treating the Trust as our subsidiary and, accordingly, the accounts of the Trust are not included in our consolidated financial statements. Intercompany transactions between the Trust and us have not been eliminated in our consolidated financial statements. F-30 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 14. Shareholders' Equity Authorized Capital We have the authority to issue up to 200,000,000 shares of stock, consisting of (i) 100,000,000 shares of class A common stock and (ii) 100,000,000 shares of preferred stock. The board of directors is generally authorized to issue additional shares of authorized stock without shareholder approval. Common Stock Class A common stock are voting shares entitled to vote on all matters presented to a vote of shareholders, except as provided by law or subject to the voting rights of any outstanding preferred stock. Holders of record of shares of class A common stock on the record date fixed by our board of directors are entitled to receive such dividends as may be declared by the board of directors subject to the rights of the holders of any outstanding preferred stock. Preferred Stock We have 100,000,000 shares of preferred stock authorized and have not issued any shares of preferred stock since we repurchased all of the previously issued and outstanding preferred stock in 2001. Common and Preferred Stock Transactions In March 2000, we commenced an open market stock repurchase program under which we were initially authorized to purchase, from time to time, up to 666,667 shares of class A common stock. Since that time the authorization has been increased by the board of directors to purchase up to 2,366,923 shares of class A common stock. As of December 31, 2004, we had purchased and retired, pursuant to the program, 1,700,584 shares of class A common stock at an average price of $13.13 per share (including commissions). We did not repurchase any of our common stock during the year ended December 31, 2004. We have no further obligations to issue additional warrants to affiliates of Citigroup Alternative Investments at December 31, 2004. The value of the warrants at the issuance dates, $4,636,000, was capitalized and is being amortized over the anticipated lives of the fund business venture with affiliates of Citigroup Alternative Investments. On January 31, 2003, we purchased all of the outstanding warrants to purchase 2,842,822 shares of class A common stock for $2,132,000. On June 18, 2003, we issued 1,075,000 shares of class A common stock in a private placement to thirty-two separate investors. We received net proceeds of $17.1 million after payment of offering expenses and fees. On May 11, 2004, we closed on the initial tranche of a direct public offering to designated controlled affiliates of W. R. Berkley Corporation, which we refer to as Berkley. We issued 1,310,000 shares of our class A common stock and stock purchase warrants to purchase 365,000 shares of our class A common stock for a total purchase price of $30.7 million. On June 21, 2004, we closed on the second tranche of the direct public offering and issued an additional 325,000 shares of our class A common stock for a total purchase price of $7.6 million. The warrants, which were set to expire on December 31, 2004, were exercised on September 13, 2004 to purchase 365,000 shares of our class A common stock for a total purchase price of $8.5 million. Pursuant to a director designation right granted to Berkley in the transaction, we appointed Joshua A. Polan to our board of directors. On July 28, 2004, we closed on a public offering of our class A common stock pursuant to which we sold 1,888,289 shares and certain selling shareholders sold 2,136,711 shares obtained upon the concurrent conversion of $44,871,000 of our outstanding convertible junior subordinated debentures. All 4,025,000 shares were sold to the public at a price of $23.75 per share. After payment of underwriting discounts and commissions and expenses, we received net proceeds from the offering of $41.6 million. F-31 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 14. Stockholders' Equity, continued On September 29, 2004, following our issuance of a notice of redemption to be effected on September 30, 2004, $44,871,000 of the convertible junior subordinated debentures outstanding were converted into 2,136,711 shares of our class A common stock at a conversion price of approximately $21.00 per share. Earnings per Share The following table sets forth the calculation of Basic and Diluted EPS for the years ended December 31, 2004 and 2003:
Year Ended December 31, 2004 Year Ended December 31, 2003 --------------------------------------------- ---------------------------------------------- Net Income Shares Per Share Net Loss Shares Per Share Amount Amount ---------------- ---------------- ----------- ---------------- ---------------- ------------ Basic EPS: Net earnings allocable to common stock $ 21,976,000 10,141,380 $ 2.17 $ 13,525,000 5,946,718 $ 2.27 =========== ========== Effect of Dilutive Securities: Options outstanding for the purchase of common stock -- 135,506 -- 67,581 Convertible trust preferred securities exchangeable for shares of common stock -- -- 9,452,000 4,273,422 ---------------- ---------------- ----------------- --------------- Diluted EPS: Net earnings per share of common stock and assumed conversions $ 21,976,000 10,276,886 $ 2.14 $ 22,977,000 10,287,721 $ 2.23 ================ ================ =========== ================== =============== ===========
The following table sets forth the calculation of Basic and Diluted EPS for the year ended December 31, 2002:
Year Ended December 31, 2002 ---------------------------------------------------- Net Income Shares Per Share Amount ------------------- -------------------------------- Basic EPS: Net loss allocable to common stock $ (9,738,000) 6,008,731 $ (1.62) ============= Effect of Dilutive Securities: Options outstanding for the purchase of common -- -- stock Convertible trust preferred securities exchangeable for shares of common stock -- -- ----------------- ----------------- Diluted EPS: Net loss per share of common stock and assumed conversions $ (9,738,000) 6,008,731 $ (1.62) ================= ================= =============
F-32 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 15. General and Administrative Expenses General and administrative expenses for the years ended December 31, 2004, 2003 and 2002 consisted of (in thousands):
2004 2003 2002 ------------------ ------------------- ------------------- Salaries and benefits $ 9,713 $ 8,306 $ 9,276 Professional services 2,233 2,127 1,806 Other 3,283 2,887 2,914 ------------------ ------------------- ------------------- Total $ 15,229 $ 13,320 $ 13,996 ================== =================== ===================
16. Income Taxes We made an election to be taxed as a REIT under Section 856(c) of the Internal Revenue Code of 1986, as amended, commencing with the tax year ending December 31, 2003. As a REIT, we generally are not subject to federal income tax. To maintain qualification as a REIT, we must distribute at least 90% of our REIT taxable income to our stockholders and meet certain other requirements. If we fail to qualify as a REIT in any taxable year, we will be subject to federal income tax on our taxable income at regular corporate rates. We may also be subject to certain state and local taxes on our income and property. Under certain circumstances, federal income and excise taxes may be due on our undistributed taxable income. At December 31, 2004 and 2003, we were in compliance with all REIT requirements. During the year ended December 31, 2004, we recorded $451,000 of income tax benefit resulting from book losses generated by our taxable REIT subsidiaries. We believe that our taxable REIT subsidiaries will generate book earnings in 2005 in excess of the losses recognized in 2004, and that any potential taxable losses in 2005 would be recoverable from taxes paid in 2003 and 2004, requiring us to recognize the tax benefit. During the year ended December 31, 2003, we recorded $646,000 of income tax expense for income that was attributable to taxable REIT subsidiaries. Our effective tax rate for the year ended December 31, 2003 attributable to our taxable REIT subsidiaries was 107.9%. The difference between the U.S. federal statutory tax rate of 35% and the effective tax rate was primarily state and local taxes, net of federal tax benefit, and compensation in excess of deductible limits. We have federal net operating loss carryforwards as of December 31, 2004 of approximately $3.6 million. Such net operating loss carryforwards expire through 2021. Due to an ownership change in January 1997 and another prior ownership change, a substantial portion of the net operating loss carryforwards are limited for federal income tax purposes to approximately $1.4 million annually. Any unused portion of such annual limitation can be carried forward to future periods. We also have federal capital loss carryforwards as of December 31, 2004 of approximately $9.0 million that expire through 2008. The utilization of these carryforwards would not reduce federal income taxes but would reduce required distributions to maintain REIT status. Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for tax reporting purposes. As we are operating in a manner to meet the qualifications to be taxed as a REIT for federal income tax purposes during the 2004 tax year, we do not expect we will be liable for income taxes or taxes on "built-in gain" on our assets at the federal level or in most states in future years, other than on our taxable REIT subsidiary. Accordingly, we eliminated substantially all of our deferred tax liabilities other than that related to our taxable REIT subsidiary at December 31, 2002. The amounts for 2004 and 2003 relate only to differences related to taxable earnings of our taxable REIT subsidiaries. All dividends declared in 2003 and 2004 are ordinary income. F-33 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 16. Income Taxes, continued The components of the net deferred tax assets are as follows (in thousands):
December 31, --------------------------------- 2004 2003 --------------- --------------- Fund II incentive management fees recognized for tax purposes not recorded for book $ 4,867 $ 3,230 Other 756 279 --------------- --------------- Deferred tax assets 5,623 3,509 Valuation allowance -- (140) --------------- --------------- $ 5,623 $ 3,369 =============== ===============
We recorded a valuation allowance to reserve a portion of our net deferred assets in accordance with Statement of Financial Accounting Standards No. 109. Under Statement of Financial Accounting Standards No. 109, this valuation allowance will be adjusted in future years, as appropriate. In 2004, the valuation allowance was eliminated when the item which generated it was eliminated. For the year ended December 31, 2002, we filed a consolidated federal income tax return as a C-corporation. The provision for income taxes for the years ended December 31, 2002 is comprised as follows (in thousands): 2002 --------------- Current Federal $ 8,752 State 2,654 Local 2,802 Deferred Federal 5,152 State 1,483 Local 1,595 --------------- Provision for income taxes $ 22,438 =============== The reconciliation of income tax computed at the U.S. federal statutory tax rate (35%) to the effective income tax rate for the year ended December 31, 2002 is as follows (in thousands): 2002 ---------------------- $ % ----------- ---------- Federal income tax at statutory rate $ 7,404 35.0% State and local taxes, net of federal tax benefit 5,547 26.2% Utilization of net operating loss carryforwards (490) (2.3)% Capital loss carryforwards not recognized due to uncertainty of utilization 10,304 48.7% Compensation in excess of deductible limits 502 2.4% Reduction of net deferred tax liabilities (2,783) (13.1)% Other 1,954 9.2% ----------- ---------- $ 22,438 106.1% =========== ========== F-34 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 17. Employee Benefit Plans Employee 401(k) and Profit Sharing Plan We sponsor a 401(k) and profit sharing plan that allows eligible employees to contribute up to 15% of their salary into the plan on a pre-tax basis, subject to annual limits. We have committed to make contributions to the plan equal to 3% of all eligible employees' compensation subject to annual limits and may make additional contributions based upon earnings. Our contribution expense for the years ended December 31, 2004, 2003 and 2002, was $99,000, $103,000 and $110,000, respectively. 1997 Long-Term Incentive Stock Plan Our 1997 second amended and restated long-term incentive stock plan permits the grant of nonqualified stock option, incentive stock option, restricted stock, stock appreciation right, performance unit, performance stock and stock unit awards. A maximum of 527,420 shares of class A common stock may be issued during the fiscal year 2005 pursuant to awards under the incentive stock plan and the director stock plan (as discussed below) in addition to the shares subject to awards outstanding under the two plans at December 31, 2004. The maximum number of shares that may be subject to awards to any employee during the term of the plan may not exceed 333,334 shares and the maximum amount payable in cash to any employee with respect to any performance period pursuant to any performance unit or performance stock award is $1.0 million. Incentive stock options shall be exercisable no more than ten years after their date of grant and five years after the grant in the case of a 10% shareholder and vest over a period of three years with one-third vesting at each anniversary date. Payment of an option may be made with cash, with previously owned class A common stock, by foregoing compensation in accordance with performance compensation committee or compensation committee rules or by a combination of these. Restricted stock may be granted under the long-term incentive stock plan with performance goals and periods of restriction as the board of directors may designate. The performance goals may be based on the attainment of certain objective and/or subjective measures. In 2004, 2003 and 2002, we issued 52,515 shares, 17,500 shares and 25,157 shares, respectively, of restricted stock at a weighted average price of $22.85, $20.35 and $15.90 per share, respectively. In 2003, 12,707 shares were canceled upon the resignation of employees prior to vesting. The shares of restricted stock issued in 2004 were split with one-half subject to performance and time vesting and one-half subject only to time vesting. The performance and time based grants vest on January 26, 2008 if certain performance measures are met and the grantee is employed on that date. The time vest only grants vest one-third on each of the following dates: January 26, 2005, January 26, 2006 and January 26, 2007. The shares of restricted stock issued in 2003 vest one-third on each of the following dates: February 1, 2004, February 1, 2005 and February 1, 2006. The shares of restricted stock issued in 2002 vest one-third on each of the following dates: February 1, 2003, February 1, 2004 and February 1, 2005. The long-term incentive stock plan also authorizes the grant of stock units at any time and from time to time on such terms as shall be determined by the board of directors or administering compensation committee. Stock units shall be payable in class A common stock upon the occurrence of certain trigger events. The terms and conditions of the trigger events may vary by stock unit award, by the participant, or both. F-35 17. Employee Benefit Plans, continued The following table summarizes the activity under the long-term incentive stock plan for the years ended December 31, 2004, 2003 and 2002:
Weighted Average Options Exercise Price Exercise Price Outstanding per Share per Share --------------- -------------------------- ------------------ Outstanding at January 1, 2002 577,082 $12.375 - $30.00 $ 19.26 Granted in 2002 97,340 $15.90 15.90 Canceled in 2002 (17,172) $12.375 - $18.00 13.79 --------------- ------------------ Outstanding at December 31, 2002 657,250 $12.375 - $30.00 $ 18.51 Granted in 2003 (18,445) $12.375 - $18.00 15.20 Canceled in 2003 (121,337) $12.375 - $30.00 18.51 --------------- ------------------ Outstanding at December 31, 2003 517,468 $12.375 - $30.00 $ 19.09 Exercised in 2004 (56,079) $12.375 - $18.00 14.52 Canceled in 2004 (2,391) $15.000 - $15.90 15.48 --------------- ------------------ Outstanding at December 31, 2004 458,998 $12.375 - $30.00 $ 19.67 =============== ==================
At December 31, 2004, 2003 and 2002, options to purchase 428,995, 417,730 and 435,669 shares, respectively, were exercisable. At December 31, 2004, the outstanding options have various remaining contractual lives ranging from 1.00 to 7.09 years with a weighted average life of 4.47 years. The following table presents the options outstanding and exercisable at December 31, 2004 within price ranges: Range for Total Total Exercise Prices Options Options per Share Outstanding Exercisable ---------------------------- ----------------- ------------------ $12.375 - $15.00 101,433 101,433 $15.01 - $18.00 232,007 202,004 $18.01 - $21.00 -- -- $21.01 - $24.00 -- -- $24.01 - $27.00 33,334 33,334 $27.01 - $30.00 92,224 92,224 ----------------- ------------------ Total 458,998 428,995 ================= ================== 1997 Non-Employee Director Stock Plan Our 1997 amended and restated non-employee director stock plan permits the grant of nonqualified stock option, restricted stock, stock appreciation right, performance unit, performance stock and stock unit awards. A maximum of 527,420 shares of class A common stock may be issued during the fiscal year 2005 pursuant to awards under the director stock plan and the long-term incentive stock plan, in addition to the shares subject to awards outstanding under the two plans at December 31, 2004. The board of directors shall determine the purchase price per share of class A common stock covered by nonqualified stock options granted under the director stock plan. Payment of nonqualified stock options may be made with cash, with previously owned shares of class A common stock, by foregoing compensation in accordance with board rules or by a combination of these payment methods. Stock appreciation rights may be granted under the plan in lieu of nonqualified stock options, in addition to nonqualified stock options, independent of nonqualified stock options or as a combination of the foregoing. A holder of stock appreciation rights is entitled upon exercise to receive shares of class A common stock, or cash or a combination of both, as the board of directors may determine, equal in value on the date of exercise to the amount by which the fair market value of one share of class A common stock on the date of exercise exceeds the exercise price fixed by the board on the date of grant (which price shall not be less than 100% of the market price of a share of class A common stock on the date of grant) multiplied by the number of shares in respect to which the stock appreciation rights are exercised. F-36 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 17. Employee Benefit Plans, continued Restricted stock may be granted under the director stock plan with performance goals and periods of restriction as the board of directors may designate. The performance goals may be based on the attainment of certain objective and/or subjective measures. The director stock plan also authorizes the grant of stock units at any time and from time to time on such terms as shall be determined by the board of directors. Stock units shall be payable in shares of class A common stock upon the occurrence of certain trigger events. The terms and conditions of the trigger events may vary by stock unit award, by the participant, or both. The following table summarizes the activity under the director stock plan for the years ended December 31, 2004, 2003 and 2002:
Weighted Average Options Exercise Price Exercise Price Outstanding per Share per Share --------------- -------------------------- ------------------ Outstanding at January 1, 2002 85,002 $18.00-$30.00 27.65 Granted in 2002 -- $ -- -- --------------- ------------------ Outstanding at December 31, 2002 85,002 $18.00-$30.00 27.65 Granted in 2003 -- $ -- -- ---------------- ------------------ Outstanding at December 31, 2003 85,002 $18.00-$30.00 27.65 Granted in 2004 -- $ -- -- --------------- ------------------ Outstanding at December 31, 2004 85,002 $18.00-$30.00 $ 27.65 =============== ==================
At December 31, 2004, 2003 and 2002, all of the options outstanding were exercisable. At December 31, 2004, the outstanding options have a remaining contractual life of 2.54 years to 3.08 years with a weighted average life of 2.98 years. 16,668 of the options are priced at $18.00 and the remaining 68,334 are priced at $30.00. 2004 Long-Term Incentive Plan Our 2004 amended and restated long-term incentive plan, or the 2004 Plan, permits the grant of nonqualified stock option, incentive stock option, share appreciation right, restricted share, unrestricted share, performance unit, performance share and deferred share unit awards. A maximum of 1,000,000 shares of class A common stock may be issued under the 2004 Plan. No participant may receive options or share appreciation rights that relate to more than 500,000 shares per calendar year. Incentive stock options shall be exercisable no more than ten years after their date of grant and five years after the grant in the case of a 10% shareholder. Payment of an option exercise price may be made with cash, with previously owned class A common stock, through a cashless exercise program, surrender of restricted shares, restricted share units, share appreciation rights or deferred share units or by a combination of these methods of payment. Restricted stock may be granted under the 2004 Plan with performance goals and periods of restriction as the board of directors may designate. The performance goals may be based on the attainment of certain objective and/or subjective measures. The 2004 Plan also authorizes the grant of share units at any time and from time to time on such terms as shall be determined by the board of directors or administering compensation committee. Share units shall be payable in shares of class A common stock upon the occurrence of certain trigger events. The terms and conditions of the trigger events may vary by share unit award, by the participant, or both. F-37 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 17. Employee Benefit Plans, continued On July 15, 2004, pursuant to the 2004 Plan, we issued 218,818 restricted shares in accordance with Mr. Klopp's new employment agreement at a price of $26.47 per share, 50% of which will be subject to time vesting in eight equal quarterly increments commencing on March 31, 2007 and 50% of which will be issued as a performance compensation award and will vest on December 31, 2008 if the total shareholder return, measured from January 1, 2004 through December 31, 2008, is at least 13% per annum. As of December 31, 2004, no other share based awards have been issued pursuant to the 2004 Plan. A maximum of 781,182 shares of class A common stock may be issued during the fiscal year 2005 pursuant to awards under the 2004 Plan in addition to the shares subject to awards outstanding at December 31, 2004. 18. Fair Values of Financial Instruments The Financial Accounting Standards Board's Statement of Financial Accounting Standards No. 107, "Disclosures about Fair Value of Financial Instruments," requires disclosure of fair value information about financial instruments, whether or not recognized in the statement of financial condition, for which it is practicable to estimate that value. In cases where quoted market prices are not available, fair values are based upon estimates using present value or other valuation techniques. Those techniques are significantly affected by the assumptions used, including the discount rate and the estimated future cash flows. In that regard, the derived fair value estimates cannot be substantiated by comparison to independent markets and, in many cases, could not be realized in immediate settlement of the instrument. Statement of Financial Accounting Standards No. 107 excludes certain financial instruments and all non-financial instruments from our disclosure requirements. Accordingly, the aggregate fair value amounts do not represent the underlying value of Capital Trust. The following methods and assumptions were used to estimate the fair value of each class of financial instruments for which it is practicable to estimate that value: Cash and cash equivalents: The carrying amount of cash on hand and money market funds is considered to be a reasonable estimate of fair value. Available-for-sale securities: The fair value was determined based upon the market value of the securities. Commercial mortgage-backed securities: The fair value was obtained by obtaining quotes from a market maker in the security. Loans receivable, net: The fair values were estimated by using current institutional purchaser yield requirements for loans with similar credit characteristics. Interest rate cap agreement: The fair value was estimated based upon the amount at which similar financial instruments would be valued. Credit facility: The credit facility is at floating rates of interest for which the spread over LIBOR is at rates that are similar to those in the market currently. Therefore, the carrying value is a reasonable estimate of fair value. Repurchase obligations: The repurchase obligations, which are generally short-term in nature, bear interest at a floating rate and the book value is a reasonable estimate of fair value. Term redeemable securities contract: The fair value was estimated based upon the amount at which similar privately placed financial instruments would be valued. Convertible trust preferred securities: The fair value was estimated based upon the amount at which similar privately placed financial instruments would be valued. Collateralized debt obligations: The fair value was estimated based upon the amount at which similar placed financial instruments would be valued. F-38 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 18. Fair Values of Financial Instruments, continued Interest rate swap agreements: The fair values were estimated based upon the amount at which similar financial instruments would be valued. The carrying amounts of all assets and liabilities approximate the fair value except as follows (in thousands):
December 31, 2004 December 31, 2003 ------------------------------- ------------------------------ Carrying Fair Carrying Fair Amount Value Amount Value ------------- ------------- ------------- ------------- Financial Assets: Loans receivable $ 556,164 $ 566,919 $ 183,721 $ 191,395
19. Supplemental Schedule of Non-Cash and Financing Activities Interest paid on our outstanding debt for 2004, 2003 and 2002 was $19,031,000, $18,980,000 and $32,293,000, respectively. Income taxes paid by us in 2004, 2003 and 2002 were $2,443,000, $2,454,000 and $8,275,000, respectively. 20. Transactions with Related Parties We entered into a consulting agreement, dated as of January 1, 1998, with one of our directors. The consulting agreement had an initial term of one year, which was subsequently extended to December 31, 2002 and then allowed to expire. Pursuant to the agreement, the director provided consulting services for us including new business identification, strategic planning and identifying and negotiating mergers, acquisitions, joint ventures and strategic alliances. During the year ended December 31, 2002, we incurred expenses of $96,000 in connection with this agreement. Effective January 1, 2001, we entered into a consulting agreement with another director. The consulting agreement had an initial term of two years that expired on December 31, 2002. Under this agreement, the consultant was paid $15,000 per month for which the consultant provided services to us including serving on the management committees for Fund I and Fund II and any other tasks and assignments requested by the chief executive officer. Effective January 1, 2003, we entered into a new consulting agreement with the director with a term of two years and five months that expires on May 31, 2005. Under the new agreement, the consultant is paid $10,000 per month for which the consultant provides services to us including serving on the management committees for Fund I and Fund II, serving on the board of directors of Fund III, and any other tasks and assignments requested by the chief executive officer. During the years ended December 31, 2004, 2003 and 2002, we incurred expenses of $120,000, $120,000 and $180,000, respectively in connection with these agreements. We pay Equity Group Investments, L.L.C. and Equity Risk Services, Inc., affiliates under common control of the chairman of the board of directors, for certain corporate services provided to us. These services include consulting on insurance matters, risk management, and investor relations. During the years ended December 31, 2004, 2003 and 2002, we incurred $49,000, $48,000 and $57,000, respectively, of expenses in connection with these services. We pay Global Realty Outsourcing, Inc., a company in which we have an equity investment and on whose board of directors our president and chief executive officer serves, for consulting services relating to monitoring assets and evaluating potential investments. During the years ended December 31, 2004, 2003 and 2002, we incurred $568,000, $147,000 and $13,000, respectively, of expenses in connection with these services. At December 31, 2004, we are indebted to Global Realty Outsourcing, Inc. for $93,000 which is included in accounts payable and accrued expenses. We believe that the terms of the foregoing transactions are no less favorable than could be obtained by us from unrelated parties on an arm's-length basis. F-39 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 21. Commitments and Contingencies Leases We lease premises and equipment under operating leases with various expiration dates. Minimum annual rental payments at December 31, 2004 are as follows (in thousands): Years ending December 31: - ------------------------- 2005 $ 975 2006 975 2007 975 2008 488 2009 -- --------------- $ 3,413 =============== Rent expense for office space and equipment amounted to $903,000, $902,000 and $899,000 for the years ended December 31, 2004, 2003 and 2002, respectively. Litigation In the normal course of business, we are subject to various legal proceedings and claims, the resolution of which, in management's opinion, will not have a material adverse effect on our consolidated financial position or our results of operations. Employment Agreements John R. Klopp serves as our chief executive officer and president pursuant to an employment agreement entered into on July 15, 1997, which terminated effective July 15, 2004, the effective date of his new employment agreement that was entered into as of February 24, 2004. The new employment agreement provides for Mr. Klopp's employment as chief executive officer and president through December 31, 2008 (subject to earlier termination under certain circumstances). Under the new employment agreement, Mr. Klopp receives a base salary and is eligible to receive annual performance compensation awards of cash and restricted shares of common stock. As of the effective date of the new agreement, July 15, 2004, Mr. Klopp was granted an initial award of 218,818 restricted shares, 50% of which will be subject to time vesting in eight equal quarterly increments commencing on March 31, 2007 and 50% of which will be issued as a performance compensation award and will vest on December 31, 2008 if the total shareholder return, measured from January 1, 2004 through December 31, 2008, is at least 13% per annum. As of the effective date, Mr. Klopp was also awarded performance compensation awards tied to the amount of cash we receive, if any, as incentive management fees from CT Mezzanine Partners III, Inc. The agreement provides for severance payments under certain circumstances and contains provisions relating to non-competition during the term of employment, protection of our confidential information and intellectual property, and non-solicitation of our employees, which provisions extend for 24 months following termination in certain circumstances. 22. Segment Reporting We have established two reportable segments beginning January 1, 2003. We have an internal information system that produces performance and asset data for our two segments along service lines. The Balance Sheet Investment segment includes all of our activities related to direct loan and investment activities (including direct investments in Funds) and the financing thereof. F-40 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 22. Segment Reporting, continued The Investment Management segment includes all of our activities related to investment management services provided to us and third-party funds under management and includes our taxable REIT subsidiary, CT Investment Management Co., LLC and its subsidiaries. The following table details each segment's contribution to our overall profitability and the identified assets attributable to each such segment for the year ended and as of December 31, 2004, respectively (in thousands):
Balance Sheet Investment Inter-Segment Investment Management Activities Total ------------------- ----------------- ------------------ ------------------- Income from loans and other investments: Interest and related income $ 46,561 $ -- $ -- $ 46,561 Less: Interest and related expenses on credit facility, term redeemable securities contract and repurchase obligations (13,724) -- -- (13,724) Less: Interest and related expenses on convertible junior subordinated debentures (6,417) -- -- (6,417) ------------------- ----------------- ----------------- ------------------- Income from loans and other investments, net 26,420 -- -- 26,420 ------------------- ----------------- ----------------- ------------------- Other revenues: Management and advisory fees -- 11,477 (3,624) 7,853 Income/(loss) from equity investments in Funds 2,746 (339) -- 2,407 Gain on sale of investments 300 -- -- 300 Special servicing fees -- 10 -- 10 Other interest income 62 287 (271) 78 ------------------- ----------------- ----------------- ------------------- Total other revenues 3,108 11,435 (3,895) 10,648 ------------------- ----------------- ----------------- ------------------- Other expenses: General and administrative 6,581 12,272 (3,624) 15,229 Other interest expense 271 -- (271) -- Depreciation and amortization 845 255 -- 1,100 Unrealized loss on available-for-sale securities for other-than-temporary impairment 5,886 -- -- 5,886 Recapture of allowance for possible credit losses (6,672) -- -- (6,672) ------------------- ----------------- ----------------- ------------------- Total other expenses 6,911 12,527 (3,895) 15,543 ------------------- ----------------- ----------------- ------------------- Income before income taxes 22,617 (1,092) -- 21,525 Provision for income taxes -- (451) -- (451) ------------------- ----------------- ----------------- ------------------- Net income $ 22,617 $ (641) $ -- $ 21,976 =================== ================= ================= ================= 876,032 13,402 $ (11,668) $ 877,766 =================== ================= ================= ===================
All revenues were generated from external sources within the United States. The Investment Management segment earned fees of $3,624,000 for management of the Lending and Investment segment and $271,000 for inter-segment interest for the year ended December 31, 2004, respectively, which is reflected as offsetting adjustments to other revenues and other expenses in the Inter-Segment Activities column in the tables above. F-41 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 22. Segment Reporting, continued The following table details each segment's contribution to our overall profitability and the identified assets attributable to each such segment for the year ended and as of December 31, 2003, respectively (in thousands):
Balance Sheet Investment Inter-Segment Investment Management Activities Total ------------------- ----------------- ------------------- --------------- Income from loans and other investments: Interest and related income $ 38,524 $ -- $ -- $ 38,524 Less: Interest and related expenses on credit facility, term redeemable securities contract and repurchase obligations (9,845) -- -- (9,845) Less: Interest and related expenses on convertible junior subordinated debentures (9,730) -- -- (9,730) ------------------- ------------------ ----------------- ----------------- Income from loans and other investments, net 18,949 -- -- 18,949 ------------------- ------------------ ----------------- ----------------- Other revenues: Management and advisory fees -- 11,259 (3,239) 8,020 Income/(loss) from equity investments in Funds 2,312 (786) -- 1,526 Other interest income 29 185 (161) 53 ------------------- ------------------ ----------------- ----------------- Total other revenues 2,341 10,658 (3,400) 9,599 ------------------- ------------------ ----------------- ----------------- Other expenses: General and administrative 6,453 10,106 (3,239) 13,320 Other interest expense 161 -- (161) -- Depreciation and amortization 845 212 -- 1,057 ------------------- ------------------ ----------------- ----------------- Total other expenses 7,459 10,318 (3,400) 14,377 ------------------- ------------------ ----------------- ----------------- Income before income taxes 13,831 340 -- 14,171 Provision for income taxes -- 646 -- 646 ------------------- ------------------ ----------------- ----------------- Net income $ 13,831 $ (306) $ -- $ 13,525 =================== ================== ================= ================= Total Assets $ 387,727 $ 24,151 $ (14,734) $ 397,144 =================== ================== ================= =================
All revenues were generated from external sources within the United States. The Investment Management segment earned fees of $3,239,000 for management of the Lending and Investment segment and $161,000 for inter-segment interest for the year ended December 31, 2003, respectively, which is reflected as offsetting adjustments to other revenues and other expenses in the Inter-Segment Activities column in the tables above. F-42 Capital Trust, Inc. and Subsidiaries Notes to Consolidated Financial Statements (continued) 23. Summary of Quarterly Results of Operations (Unaudited) The following is a summary of the unaudited quarterly results of operations for the years ended December 31, 2004, 2003 and 2002 (in thousands except per share data):
March 31 June 30 September 30 December 31 --------------- --------------- --------------- --------------- 2004 ---- Revenues $ 11,504 $ 11,942 $ 15,209 $ 18,554 Net income as originally reported in 10Q $ 3,082 $ 3,540 $ 5,864 Effects of adoption of FAS #123 (30) (9) (6) --------------- --------------- --------------- Net income (1) $ 3,052 $ 3,531 $ 5,858 $ 9,535 Net income per share of common stock: Basic $ 0.46 $ 0.48 $ 0.51 $ 0.63 Diluted $ 0.46 $ 0.47 $ 0.50 $ 0.63 2003 ---- Revenues $ 11,139 $ 10,652 $ 14,517 $ 11,537 Net income $ 2,545 $ 2,586 $ 4,786 $ 3,608 Net income per share of common stock: Basic $ 0.46 $ 0.46 $ 0.74 $ 0.55 Diluted $ 0.46 $ 0.46 $ 0.66 $ 0.54 2002 ---- Revenues $ 13,886 $ 16,579 $ 16,843 $ 9,695 Net income $ 1,573 $ 1,117 $ 1,553 $ (13,981) Net income per share of common stock: Basic $ 0.25 $ 0.18 $ 0.26 $ (2.53) Diluted $ 0.24 $ 0.18 $ 0.25 $ (2.53)
(1) Quarterly amounts have been restated for adoption of FAS #123. 24. Subsequent Event On March 4, 2005 we entered into repurchase agreements with a new counterparty, a commercial bank, in connection with the purchase of nine new loans. On that day, we purchased loans totaling $164.6 million and sold them pursuant to a master repurchase agreement and have a liability to repurchase the loans for $139.9 million. The master repurchase agreement terminates on March 4, 2010 and bears interest at specified rates over LIBOR based upon each included asset in the obligation. F-43 Capital Trust, Inc. and Subsidiaries Schedule IV - Loans and Other Lending Investments As of December 31, 2004 (Dollars in thousands)
Interest Accrual Interest Payment Type of Loan/Borrower Description/Location Rates Rates - ----------------------------------- ----------------------------- ------------------ ------------------- First Mortgage Loans: All other first mortgage loans individually less than 3% Total first mortgage loans Mezzanine Loans: Borrower A Office/New York 11.67% 11.67% Borrower B Hotel/Florida LIBOR + 4.75% LIBOR + 4.75% Borrower C Hotel/Various States 8.48% 8.48% All other mezzanine loans individually less than 3% Total mezzanine loans B Notes: Borrower D Retail/Puerto Rico LIBOR + 4.50% LIBOR + 4.50% Borrower E Other/Various States LIBOR + 5.50% LIBOR + 5.50% Borrower F Multi-Family/Various States LIBOR + 4.28% LIBOR + 4.28% Borrower G Hotel/Florida LIBOR + 4.50% LIBOR + 4.50% Borrower H Multi-Family/Various States LIBOR + 3.21% LIBOR + 3.21% All other B notes individually less than 3% Total B notes Total loans
Final Periodic Carrying Maturity Payment Prior Face Amount Amount of Type of Loan/Borrower Date Terms (1) Liens (2) of Loans Loans - ----------------------------------- -------------- ---------- ------------ ------------- ------------- First Mortgage Loans: All other first mortgage loans individually less than 3% $ -- $ 7,038 $ 3,038 ------------ ------------- ------------- Total first mortgage loans -- 7,038 3,038 ------------ ------------- ------------- Mezzanine Loans: Borrower A 6/30//2009 P&I 112,211 48,655 48,655 Borrower B 1/9/2009 P&I 86,568 23,082 23,082 Borrower C 9/1/2011 P&I 134,434 24,938 24,938 All other mezzanine loans individually less than 3% 636,895 63,046 62,831 ------------ ------------- ------------- Total mezzanine loans 970,108 159,721 159,506 ------------ ------------- ------------- B Notes: Borrower D 3/31/2008 IO 252,500 30,000 30,296 Borrower E 2/10/2008 P&I 515,606 24,640 25,022 Borrower F 1/1/2006 IO 90,000 26,565 26,599 Borrower G 6/1/2006 IO 29,000 24,000 24,000 Borrower H 9/9/2009 P&I 89,889 23,728 23,728 All other B notes individually less than 3% 750,029 266,002 263,975 ------------ ------------- ------------- Total B notes 1,727,024 394,935 393,620 ------------ ------------- ------------- Total loans $2,697,132 $ 561,694 $ 556,164 ============ ============= =============
Explanatory Notes: (1) P&I = principal and interest, IO = interest only (2) Represents only third-party liens S-1 EX-10 2 ex10-1.txt EX. 10.1- AMD & REST 1997 LNG-TRM INCENT STOCK PL Exhibit 10.1 CAPITAL TRUST, INC. SECOND AMENDED AND RESTATED 1997 LONG-TERM INCENTIVE STOCK PLAN Amended and restated by the Board of Directors on December 31, 2004 CAPITAL TRUST, INC. SECOND AMENDED AND RESTATED 1997 LONG-TERM INCENTIVE STOCK PLAN ARTICLE 1. ESTABLISHMENT, PURPOSE AND DURATION 1.1 Establishment of the Plan. On May 23, 1997, the Board of Trustees of Capital Trust, a California business trust (the "Predecessor"), the predecessor of Capital Trust, Inc., a Maryland corporation (the "Company") adopted, subject to the approval of shareholders, an incentive share compensation plan known as the "1997 Long-Term Incentive Share Plan," which permits the grant of Incentive Share Options, Nonqualified Share Options, Share Appreciation Rights, Restricted Shares, Performance Units, Performance Shares and Share Units. The plan became effective upon shareholder approval on July 15, 1997 and was amended by Amendment No. 1 effective on that date which changed all references to "California Real Estate Investment Trust" in the plan to "Capital Trust." On May 11, 1998, the Board of Trustees of the Predecessor adopted, subject to the approval of shareholders, the "Amended and Restated 1997 Long-Term Incentive Share Plan" which amended and restated the original plan. The amended and restated plan became effective upon shareholder approval on January 28, 1999. Upon consummation of the reorganization of the Predecessor into the Company on January 28, 1999 after such shareholder approval was obtained, the Company succeeded to and assumed the amended and restated plan. On January 28, 1999, the amended and restated plan was further amended, effective on that date to change all references to "Capital Trust" to "Capital Trust, Inc." and make additional technical revisions that reflect the different capital and governance structure of the Company. On December 31, 2004, the Board of Directors amended and restated the plan (hereinafter referred to as the "Plan") in order to provide the Committee with discretion to confirm the Plan and its Awards with Section 409A of the Code. The terms of the Plan are set forth herein. The Plan is designed to comply with the performance-based compensation exemption under the proposed regulations to Internal Revenue Code Section 162(m) issued by the Department of Treasury. 1.2 Purpose of the Plan. The purpose of the Plan is to promote the success of the Company and its Subsidiaries by providing incentives to Eligible Individuals that will link their personal interests to the long-term financial success of the Company and its Subsidiaries and to growth in stockholder value. The Plan is designed to provide flexibility to the Company and its Subsidiaries in their ability to motivate, attract, and retain the services of Eligible Individuals upon whose judgment, interest, and special effort the successful conduct of their operations is largely dependent. 1.3 Duration of the Plan. The Plan became effective on July 15, 1997 and shall remain in effect, subject to the right of the Board of Directors to terminate the Plan at any time pursuant to Article 13 hereof, until all Stock subject to it shall have been purchased or acquired according to the provisions herein. However, in no event may an Award be granted under the Plan on or after July 15, 2007. 2 ARTICLE 2. DEFINITIONS AND CONSTRUCTION 2.1 Definitions. Whenever used in the Plan, the following terms shall have the meanings set forth below and, when the meaning is intended, the initial letter of the word is capitalized: (a) "Amended and Restated Director Stock Plan" means the Second Amended and Restated 1997 Non-Employee Director Stock Plan of the Company. (b) "Award" or "Awards" means, individually or collectively, a grant under this Plan of Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Units, Performance Stock or Stock Units. (c) "Award Agreement" means the agreement required under Article 3 hereof evidencing an Award under this Plan. (d) "Beneficial Owner" shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act. (e) "Board" or "Board of Directors" means the Board of Directors of the Company. (f) "Cause" means the occurrence of any one of the following: (i) The willful and continued failure by a Participant to substantially perform his/her duties (other than any such failure resulting from the Participant's becoming Disabled), after a written demand for substantial performance is delivered to the Participant that specifically identifies the manner in which the Company or any of its Subsidiaries, as the case may be, believes that the Participant has not substantially performed his/her duties, and the Participant has failed to remedy the situation within ten (10) business days of receiving such notice; or (ii) the Participant's conviction for committing a felony in connection with the employment or service relationship; or (iii) the willful engaging by the Participant in gross misconduct materially and demonstrably injurious to the Company or any of its Subsidiaries. However, no act, or failure to act, on the Participant's part shall be considered "willful" unless done, or omitted to be done, by the Participant not in good faith and without reasonable belief, that his/her action or omission was in the best interest of the Company or any of its Subsidiaries. (g) "Change in Control" shall be deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied: (i) any Person (other than Veqtor Finance Company, LLC or its affiliates as that term is defined under the rules and regulations promulgated under the 3 Exchange Act, a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Subsidiaries, or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of Stock of the Company), is or becomes the Beneficial Owner, directly or indirectly, of 20% or more of the Voting Securities of the Company; (ii) the Board shall at any time consist of a majority of individuals (the "New Majority") who were elected or appointed Directors of the Company without the approval of a majority of the Directors either (A) in office prior to the election or appointment of the first of the Directors comprising the New Majority, or (B) appointed by or elected with the approval of such Directors; or (iii) the Stockholders of the Company approve (A) a plan of complete liquidation of the Company; or (B) an agreement for the sale or disposition of all or substantially all the Company's assets; or (C) a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), at least 50% of the combined voting power of the Voting Securities of the Company (or such surviving entity) outstanding immediately after such merger or consolidation. However, in no event shall a Change in Control be deemed to have occurred, with respect to a Participant, if the Participant is part of a purchasing group which consummates the Change in Control transaction. The Participant shall be deemed "part of a purchasing group..." for purposes of the preceding sentence if the Participant is an equity participant or has agreed to become an equity participant in the purchasing company or group (except for (i) passive ownership of less than 5% of the combined voting power of the purchasing company or (ii) ownership of equity participation in the purchasing company or group which is otherwise not deemed to be significant, as determined prior to the Change in Control by a majority of the nonemployee continuing members of the Board). (h) "Class B Common Stock" means the class B common stock, $.01 par value, in the Company. (i) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (j) "Committee" means the committee appointed by the Board to administer the Plan pursuant to Article 3 hereof. (k) "Common Stock" means the class A common stock, $.01 par value, in the Company. 4 (l) "Company" means Capital Trust Inc., a Maryland corporation, or any successor thereto. (m) "Convertible Securities" means the Common Stock, the Class B Common Stock, the Preferred Stock and any securities issued by the Company or any subsidiary thereof in capital raising or merger and acquisition transactions that are by their terms exercisable, convertible or exchangeable into or for Common Stock. (n) "Covered Employee" means any Participant designated prior to the grant of Restricted Stock, Performance Units or Performance Stock by the Committee who is or may be a "covered employee" within the meaning of Section 162(m)(3) of the Code in the year in which such Restricted Stock, Performance Units or Performance Stock are taxable to such Participant. (o) "Director" means a member of the Board. (p) "Disabled" means a Participant who (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, received income replacement benefits for a period of not less than 3 months under an accident or health plan covering employees of the Company. (q) "Election Form" means the form under which a Participant elects to receive Stock granted under a Stock Unit Award upon the occurrence of certain events. (r) "Eligible Individual" means an employee of the Company or any of its Subsidiaries, including an employee who is an officer or a Director of the Company or any of its Subsidiaries, or a consultant or service provider to the Company or any of its Subsidiaries who, in the opinion of the Committee, can contribute significantly to the growth and profitability of the Company and its Subsidiaries. "Eligible Individual" also may include any other employee, consultant or service provider, identified by the Committee, in special situations involving extraordinary performance, promotion, retention, or recruitment. (s) "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time. (t) "Fair Market Value" means the closing price of the Stock on a securities exchange, or if the Stock was not traded on an exchange, the average of the highest price and lowest price at which the Stock was traded, as reported on the 5 Nasdaq National Market, on the relevant date, or on the most recent date on which the Stock was traded prior to such date. (u) "Incentive Stock Option" or "ISO" means an option to purchase Stock, granted to a Participant pursuant to Article 6 hereof, which is designated as an incentive stock option and is intended to meet the requirements of Section 422 of the Code. (v) "Nonqualified Stock Option" or "NQSO" means an option to purchase Stock, granted to a Participant pursuant to Article 6 hereof, which is not intended to be an Incentive Stock Option. (w) "Option" or "Options" means an Incentive Stock Option or a Nonqualified Stock Option. (x) "Option Agreement" means an Award Agreement evidencing an Option Award granted under Article 6 hereof. (y) "Outside Director" means any Director who qualifies as an "outside director" as that term is defined in Section 162(m) of the Code and the regulations issued thereunder. (z) "Participant" means an Eligible Individual who has been granted an Award under the Plan. (aa) "Performance Stock" means an Award, designated as performance stock, granted to a Participant pursuant to Article 9 hereof. (bb) "Performance Unit" means an Award, designated as a performance unit, granted to a Participant pursuant to Article 9 hereof. (cc) "Period of Restriction" means the period during which the transfer of Restricted Stock is restricted, during which the Participant is subject to a substantial risk of forfeiture, pursuant to Article 8 hereof. (dd) "Person" shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d) thereof. (ee) "Plan" means this Second Amended and Restated 1997 Long-Term Incentive Stock Plan of the Company, as herein described and as hereafter from time to time amended. (ff) "Pooling Transaction" means an acquisition of the Company in a transaction which is intended to be treated as a "pooling of interests" under generally accepted accounting principles. 6 (gg) "Preferred Stock" means the class A 9.5% cumulative convertible preferred stock, $.01 par value, in the Company, and the class B 9.5% cumulative convertible non-voting preferred stock, $.01 par value, in the Company. (hh) "Restricted Stock" means an Award granted to a Participant pursuant to Article 8 hereof. (ii) "Restricted Stock Agreement" means an Award Agreement evidencing a Restricted Stock Award granted under Article 8 hereof. (jj) "Stock" means the Common Stock. (kk) "Subsidiary" means any corporation of which more than 50% (by number of votes) of the combined voting power of outstanding securities is owned, directly or indirectly, by the Company. (ll) "Stock Unit" means a derivative interest in Stock granted to a Participant pursuant to Article 9 hereof which is credited to a bookkeeping account and paid out on a one-for-one basis in Stock. (mm) "Stock Appreciation Right" or "SAR" means an Award, designated as a Stock Appreciation Right, granted to a Participant pursuant to Article 7 hereof. (nn) "Voting Securities" means Stock or securities of any class or classes of securities of the Company, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the Directors. 2.2 Gender and Number. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine, the plural shall include the singular, and the singular shall include the plural. 2.3 Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. ARTICLE 3. ADMINISTRATION 3.1 The Committee. The Plan shall be administered by the Board or by a committee (the "Committee") consisting of not less than two (2) Directors who shall be appointed from time to time by, and shall serve at the discretion of, the Board of Directors. To the extent required to comply with Rule 16b-3 under the Exchange Act, each member of the Committee shall qualify as a "Non-Employee Director" as defined in Rule 16b-3 or any successor definition adopted by the Securities and Exchange Commission or Awards made under the Plan will be made in accordance with another available exception, including approval by the full Board of Directors or the stockholders. To the extent required to comply with Code Section 162(m), each member of the Committee also shall be an Outside Director. 7 3.2 Authority of the Committee. Subject to the provisions of the Plan, the Committee shall have full power to construe and interpret the Plan; to establish, amend or waive rules and regulations for its administration; to accelerate the exercisability of any Award or the end of a Performance Period (as defined herein) or the termination of any Period of Restriction or any Award Agreement, or any other instrument relating to an Award under the Plan; and (subject to the provisions of Article 13 hereof) to amend the terms and conditions of any outstanding Option, Stock Appreciation Right or other Award to the extent such terms and conditions are within the discretion of the Committee as provided in the Plan. Notwithstanding the foregoing, the Committee shall have no authority to adjust upwards the amount payable to a Covered Employee with respect to a particular Award. Also notwithstanding the foregoing, no action of the Committee (other than pursuant to Section 4.3 hereof , Section 9.6 hereof or Section 14.3 hereof) may, without the consent of the person or persons entitled to exercise any outstanding Option or Stock Appreciation Right or to receive payment of any other outstanding Award, adversely affect the rights of such person or persons. 3.3 Selection of Participants. The Committee shall have the authority to grant Awards under the Plan, from time to time, to such Eligible Individuals (including officers and Directors who are employees) as may be selected by it. The Committee shall select Participants from among those who they have identified as being Eligible Individuals. 3.4 Decisions Binding. All determinations and decisions made by the Committee pursuant to the provisions of the Plan and all related orders or resolutions of the Board of Directors shall be final, conclusive and binding on all persons, including the Company and its Subsidiaries, its stockholders, employees, and Participants and their estates and beneficiaries, and such determinations and decisions shall not be reviewable. 3.5 Delegation of Certain Responsibilities. The Committee may, in its sole discretion, delegate to an officer or officers of the Company the administration of the Plan under this Article 3; provided, however, that no such delegation by the Committee shall be made with respect to the administration of the Plan as it affects officers of the Company or its Subsidiaries and provided further that the Committee may not delegate its authority to correct errors, omissions or inconsistencies in the Plan. The Board or the Committee may delegate to the Chief Executive Officer of the Company its authority under this Article 3 to grant Awards to Eligible Individuals who are not Covered Employees or who are not officers or Directors of the Company or its Subsidiaries subject to the reporting requirements of Section 16(a) of the Exchange Act. All authority delegated by the Board or the Committee under this Section 3.5 shall be exercised in accordance with the provisions of the Plan and any guidelines for the exercise of such authority that may from time to time be established by the Board or the Committee. 3.6 Procedures of the Board or the Committee. All determinations of the Board or the Committee shall be made by not less than a majority of its members present at the meeting (in person or otherwise) at which a quorum is present. A majority of the entire Board or the Committee shall constitute a quorum for the transaction of business. Any action required or permitted to be taken at a meeting of the Board or the Committee may be taken without a meeting if a unanimous written consent, which sets forth the action, is signed by each member of the Board or the Committee and filed with the minutes for proceedings of the Board or the Committee. Service on the Board or the Committee shall constitute service as a Director of the 8 Company so that members of the Board or the Committee shall be entitled to indemnification, limitation of liability and reimbursement of expenses with respect to their services as members of the Board or the Committee to the same extent that they are entitled under the Company's charter and Maryland law for their services as Directors of the Company. 3.7 Award Agreements. Each Award under the Plan shall be evidenced, as necessary, by an Award Agreement which shall be signed by an authorized officer of the Company and by the Participant, and shall contain such terms and conditions as may be approved by the Board or the Committee. Such terms and conditions need not be the same in all cases. 3.8 Rule 16b-3 Requirements. Notwithstanding any other provision of the Plan, the Board or the Committee may impose such conditions on any Award (including, without limitation, the right of the Board or the Committee to limit the time of exercise to specified periods) as may be required to satisfy the requirements of Rule 16b-3 (or any successor rule) under the Exchange Act ("Rule 16b-3"). ARTICLE 4. STOCK SUBJECT TO THE PLAN 4.1 Number of Shares of Stock. With respect to calendar year 1999, the maximum number of shares of Stock that may be made the subject of Awards granted under the Plan shall be equal to (i) ten percent (10%) of the number of shares of Stock that were outstanding on a fully diluted basis with respect to the shares of Stock underlying any outstanding Convertible Securities as of December 31, 1998 (rounded downward if necessary to eliminate fractional shares of stock), minus (ii) the number of shares of Stock remaining subject to or issued in respect of Awards which were granted prior to December 31, 1998, which maximum number shall be reduced by the number of shares of Stock remaining subject to or issued in respect of Awards which were granted prior to December 31, 1998 under the Amended and Restated Director Stock Plan and the number of shares of Stock made the subject of Awards under the Amended and Restated Director Stock Plan during the 1999 calendar year. Thereafter, for any given calendar year, the maximum number of shares of Stock that may be made the subject of Awards granted under the Plan shall be equal to (i) ten percent (10%) of the number of shares of Stock that were outstanding on a fully diluted basis with respect to the shares of Stock underlying any outstanding Convertible Securities as of the end of the immediately preceding calendar year (rounded downward if necessary to eliminate fractional shares of stock), minus (ii) the number of shares of Stock remaining subject to or issued in respect of Awards which were granted under the Plan through the last day of the immediately preceding calendar year (the "Year End Date"), which maximum number shall be reduced by the number of shares of Stock remaining subject to or issued in respect of Awards which were granted through the Year End Date under the Amended and Restated Director Stock Plan and the number of shares of Stock made the subject of Awards under the Amended and Restated Director Stock Plan during the current calendar year. Notwithstanding the foregoing, (i) the maximum number of shares of Stock that may be the subject of Awards granted to any Eligible Individual during any calendar year may not exceed 333,334 shares of Stock, (ii) the maximum amount payable in cash to any Eligible Individual with respect to any Performance Period (as defined herein) pursuant to any Performance Unit or Performance Stock Award shall be $1,000,000 and (iii) the maximum number of shares of Stock covered by outstanding ISOs when combined with the number of shares of Stock issued pursuant to the exercise of ISOs granted under the Plan shall not exceed 9 2,500,000 shares of Stock. Upon a change in capitalization or authorized shares of stock (as described in Section 4.3 hereof) the maximum number of shares of Stock shall be adjusted in number and kind pursuant to Section 4.3 hereof. The Company shall reserve for the purposes of the Plan, out of its authorized but unissued Stock or out of the Stock held in the Company's treasury, or partly out of each, the number of shares of Stock as shall be determined by the Board. Upon the granting of an Award, the number of shares of Stock available under this Section 4.1 for the granting of further Awards shall be reduced as follows: (a) In connection with the granting of an Award (other than the granting of a Performance Unit denominated in dollars), the number of shares of Stock shall be reduced by the number of shares of Stock in respect of which the Award is granted or denominated. (b) In connection with the granting of a Performance Unit denominated in dollars, the number of shares of Stock shall be reduced by an amount equal to the quotient of (a) the dollar amount in which the Performance Unit is denominated, divided by (b) the Fair Market Value of a share of Stock on the date the Performance Unit is granted. 4.2 Lapsed Awards. If any Award (other than Restricted Stock) granted under this Plan terminates, expires, or lapses for any reason, any share of Stock subject to such Award again shall be available for the grant of an Award under the Plan, subject to Section 7.2 hereof. 4.3 Adjustments in Authorized Stock. In the event of any merger, reorganization, consolidation, recapitalization, separation, liquidation, stock dividend, stock split-up, stock combination, or other change affecting the Company's Common Stock, such adjustment shall be made in the number and class of shares of Stock which may be delivered under the Plan, and in the number and class of and/or price of shares of Stock subject to outstanding Options, Stock Appreciation Rights, Restricted Stock Awards, Performance Stock, Performance Units and Stock Units granted under the Plan, as may be determined to be appropriate and equitable by the Board or the Committee, in its sole discretion, to prevent dilution or enlargement of rights; and provided that the number of shares of Stock subject to any Award shall always be a whole number. Any adjustment of an Incentive Stock Option under this paragraph shall be made in such a manner so as not to constitute a modification within the meaning of Section 424(h)(3) of the Code. ARTICLE 5. ELIGIBILITY AND PARTICIPATION 5.1 Eligibility. Persons eligible to participate in this Plan include all employees of and consultants or service providers to the Company or any of its Subsidiaries who, in the opinion of the Board or the Committee, are Eligible Individuals. "Eligible Individuals" may include employees who are members of the Board, but may not include Directors who are not employees of the Company or any of its Subsidiaries. 5.2 Actual Participation. Subject to the provisions of the Plan, the Board or the Committee may from time to time select those Eligible Individuals to whom Awards shall be 10 granted and determine the nature and amount of each Award. No individual shall have any right to be granted an Award under this Plan even if previously granted an Award. ARTICLE 6. STOCK OPTIONS 6.1 Grant of Options. Subject to the terms and provisions of the Plan, Options may be granted to Eligible Individuals at any time and from time to time as shall be determined by the Board or the Committee. The Board or the Committee shall have the sole discretion, subject to the requirements of the Plan, to determine the actual number of shares of Stock subject to Options granted to any Participant. The Board or the Committee may grant any type of Option that is permitted by law at the time of grant including, but not limited to, ISOs and NQSOs; provided, however, ISOs may only be granted to Eligible Individuals who are employees of the Company or a Subsidiary at the time of grant. Unless otherwise expressly provided at the time of grant, Options granted under the Plan will be NQSOs. 6.2 Limitation on Exercisability. The aggregate Fair Market Value (determined as of the date of grant) of the shares of Stock issuable pursuant to an ISO under this Plan and under any other plan of the Company, any parent corporation or any Subsidiary of the Company, which are exercisable for the first time by any employee during any calendar year, shall not exceed $100,000. Options for shares of Stock which are exercisable for the first time by any employee during any calendar year in excess of $100,000 shall be treated as NQSOs, in accordance with Section 422(d)(1) of the Code. 6.3 Option Agreement. Each Option grant shall be evidenced by an Option Agreement that shall specify the type of Option granted, the Option price, the duration of the Option, the number of shares of Stock to which the Option pertains, and such other provisions as the Board or the Committee shall determine. The Option Agreement shall specify whether the Option is intended to be an Incentive Stock Option within the meaning of Section 422 of the Code, or a Nonqualified Stock Option whose grant is not intended to be subject to the provisions of Section 422 of the Code. 6.4 Option Price. The purchase price per share of an Option shall be determined by the Board or the Committee but shall not be less than the Fair Market Value of the Stock on the date the Option is granted. An Incentive Stock Option granted to an employee, who at the time of grant, owns (within the meaning of Section 425(d) of the Code) Stock possessing more than 10% of the total combined voting power of all classes of Stock of the Company, shall have an exercise price which is at least 110% of the Fair Market Value of the Stock subject to the Option. 6.5 Duration of Options. Each Option shall expire at such time as the Board or the Committee shall determine at the time of grant; provided, however, that no ISO shall be exercisable later than the tenth (10th) anniversary date of its grant, and no ISO granted to any individual who owns more than 10% of the Voting Securities of the Company shall be exercisable later than the fifth (5th) anniversary date of its grant. 6.6 Exercise of Options. Subject to Section 3.8 hereof, Options granted under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the 11 Board or the Committee shall in each instance approve, which need not be the same for all Participants. 6.7 Payment. Options shall be exercised by the delivery of a written notice to the Company setting forth the number of shares of Stock with respect to which the Option is to be exercised, accompanied by full payment for the shares of Stock. The purchase price upon exercise of any Option shall be payable to the Company in full either (a) in cash or its equivalent, (b) by tendering previously acquired Stock having a Fair Market Value at the time of exercise equal to the total purchase price, (c) by foregoing compensation under rules established by the Board or the Committee, or (d) by a combination of (a), (b), or (c). The proceeds from such a payment shall be added to the general funds of the Company and shall be used for general purposes. As soon as practicable, after receipt of written notification and payment, the Company shall deliver to the Participant Stock certificates in an appropriate amount based upon the number of Options exercised, issued in the Participant's name. 6.8 Restrictions on Stock Transferability. The Board or the Committee shall impose such restrictions on any Stock acquired pursuant to the exercise of an Option under the Plan as it may deem advisable, including, without limitation, restrictions under applicable Federal securities law, under the requirements of any securities exchange upon which such Stock is then listed and under any applicable blue sky or state securities laws. 6.9 Termination of Employment or Service Due to Death, Disability, or Retirement. In the event the employment or service of a Participant is terminated by reason of death, the Participant's outstanding Options may be exercised by such person or persons as shall have acquired the Participant's rights under the Option pursuant to Article 10 hereof, or by will or by the laws of descent and distribution, at any time prior to the expiration date of the Options or within one (1) year after such date of termination of employment or service, whichever period is shorter, but only to the extent that the Participant was entitled to exercise the Options at the date of his termination. In the event the employment of a Participant is terminated by reason of becoming Disabled, the Participant's outstanding Options may be exercised at any time prior to the expiration date of the Options or within one (1) year after such date of termination of employment or service, whichever period is shorter but only to the extent that the Participant was entitled to exercise the Options on the date of his termination. In the event the employment or service of a Participant who is an employee is terminated by reason of retirement, the Participant's outstanding Options may be exercised (subject to Section 3.8 hereof) at any time prior to the expiration date of the Options or within ninety (90) days after such date of termination of employment or service, whichever period is shorter, but only to the extent that the Participant was entitled to exercise the Options on the date of his termination. In its sole discretion, the Company may extend the ninety (90) days to up to one (1) year, but in no event beyond the expiration date of the Option. In the case of Incentive Stock Options, the favorable tax treatment prescribed under Section 422 of the Code may not be available if the Options are not exercised within the time period prescribed by Section 422 of the Code after termination of employment for death, becoming Disabled, or retirement. 6.10 Termination of Employment or Service for Other Reasons. If the employment or service of a Participant shall terminate for any reason other than death, becoming Disabled, retirement (in the case of an employee) or for Cause, the Participant shall have the right to 12 exercise outstanding Options at any time prior to the expiration date of the Options or within the ninety (90) days after the date of his termination, whichever period is shorter, but only to the extent that the Participant was entitled to exercise the Options at the date of his termination of employment or service. In its sole discretion, the Company may extend the ninety (90) days to up to one (1) year, but in no event beyond the expiration date of the Option. If the employment or service of the Participant shall terminate for Cause, all of the Participant's outstanding Options shall be immediately forfeited back to the Company. 6.11 Nontransferability of Options. No Option granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution. Further, all Options granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant. ARTICLE 7. STOCK APPRECIATION RIGHTS 7.1 Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, Stock Appreciation Rights may be granted to Participants, at the discretion of the Board or the Committee, in any of the following forms: (a) In tandem with Options; (b) In addition to Options; (c) Independent of Options; or (d) In any combination of (a), (b), or (c). The Board or the Committee shall have the sole discretion, subject to the requirements of the Plan, to determine the actual number of shares of Stock subject to SARs granted to any Participant. 7.2 Exercise of SARs in Tandem with Options. SARs granted in tandem with Options may be exercised for all or part of the shares of Stock subject to the related Option upon the surrender of the related Options representing the right to purchase an equivalent number of shares of Stock. SARs may be exercised only with respect to the Stock for which its related Option is then exercisable. Stock with respect to which SARs shall have been exercised may not be subject again to an Award under the Plan. Notwithstanding any other provision of the Plan to the contrary, with respect to an SAR granted in lieu of an Incentive Stock Option, (i) the SAR will expire no later than the expiration of the underlying Incentive Stock Option; (ii) the SAR amount may be for no more than one hundred percent (100%) of the difference between the exercise price of the underlying Incentive Stock Option and the Fair Market Value of the Stock subject to the underlying Incentive Stock Option at the time the SAR is exercised; and (iii) the SAR may be exercised only when the Fair Market Value of the Stock subject to the Incentive Stock Option exceeds the exercise price of the Incentive Stock Option. 13 7.3 Exercise of SARs in Addition to Options. SARs granted in addition to Options shall be deemed to be exercised upon the exercise of the related Options. The deemed exercise of SARs granted in addition to Options shall not necessitate a reduction in the number of related Options. 7.4 Exercise of SARs Independent of Options. Subject to Sections 3.8 and 7.5 hereof, SARs granted independently of Options may be exercised upon whatever terms and conditions the Board or the Committee, in its sole discretion, imposes upon the SARs, including, but not limited to, a corresponding proportional reduction in previously granted Options. 7.5 Payment of SAR Amount. Upon exercise of the SAR, the holder shall be entitled to receive payment of an amount determined by multiplying: (a) The difference between the Fair Market Value of a share of Stock on the date of exercise over the price fixed by the Board or the Committee at the date of grant (which price shall not be less than one hundred percent (100%) of the market price of a share of Stock on the date of grant) (the "Exercise Price"); by (b) The number of shares of Stock with respect to which the SAR is exercised. Notwithstanding the foregoing, the holder's right to receive payment hereunder shall be subject to any payment or other restrictions that the Committee may impose in its discretion in the SAR grant, including restrictions intended to conform the SARs with any applicable provisions of Section 409A of the Code 7.6 Form and Timing of Payment. Payment to a Participant, upon SAR exercise, will be made in cash or Stock, at the discretion of the Board or the Committee, within ten (10) calendar days of the exercise. 7.7 Term of SAR. The term of an SAR granted under the Plan shall not exceed ten (10) years. 7.8 Termination of Employment or Service. In the event the employment or service of a Participant is terminated by reason of death, becoming Disabled, retirement (in the case of an employee), for Cause, or any other reason, the exercisability of any outstanding SAR granted in tandem with or in addition to an Option shall terminate in the same manner as its related Option as specified under Sections 6.8 and 6.9 hereof. The exercisability of any outstanding SARs granted independent of Options also shall terminate in the manner provided under Sections 6.8 and 6.9 hereof. 7.9 Nontransferability of SARs. No SAR granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution. Further, all SARs granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant. ARTICLE 8. RESTRICTED STOCK 14 8.1 Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Board or the Committee, at any time and from time to time, may grant Restricted Stock under the Plan to such Participants and in such amounts as it shall determine. In the case of Covered Employees, the Board or the Committee may condition the vesting or lapse of the Period of Restriction established pursuant to Section 8.4 hereof upon the attainment of one or more of the Performance Goals (as defined below) utilized for purposes of Performance Units and Performance Stock pursuant to Article 9 hereof. 8.2 Restricted Stock Agreement. Each grant of Restricted Stock shall be evidenced by a Restricted Stock Agreement that shall specify the Period of Restriction, or periods, the number of shares of Restricted Stock granted, and such other provisions as the Board or the Committee shall determine. 8.3 Transferability. Except as provided in this Article 8 or in Section 3.8 hereof, the Restricted Stock granted hereunder may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the termination of the applicable Period of Restriction or for such period of time as shall be established by the Board or the Committee and as shall be specified in the Restricted Stock Agreement, or upon earlier satisfaction of other conditions (including any Performance Goals) as specified by the Board or the Committee in its sole discretion and set forth in the Restricted Stock Agreement. All rights with respect to the Restricted Stock granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant. 8.4 Other Restrictions. The Board or the Committee shall impose such other restrictions on any Restricted Stock granted pursuant to the Plan as it may deem advisable including, without limitation, restrictions under applicable Federal or state securities laws, and the Board or the Committee may legend certificates representing Restricted Stock to give appropriate notice of such restrictions. 8.5 Certificate Legend. In addition to any legends placed on certificates pursuant to Section 8.4 hereof, each certificate representing Restricted Stock granted pursuant to the Plan shall bear the following legend: "The sale or other transfer of the Stock represented by this certificate, whether voluntary, involuntary, or by operation of law, is subject to certain restrictions on transfer set forth in the Second Amended and Restated 1997 Long-Term Incentive Stock Plan of Capital Trust, Inc., in the rules and administrative procedures adopted pursuant to such Plan, and in a Restricted Stock Agreement dated . A copy of the Plan, such rules and procedures and such Restricted Stock Agreement may be obtained from the Secretary of Capital Trust, Inc." 8.6 Removal of Restrictions. Except as otherwise provided in this Article and subject to applicable securities laws and restrictions imposed pursuant thereto, Restricted Stock shall become transferable by the Participant after the last day of the Period of Restriction. Once the Stock is released from the restrictions, the Participant shall be entitled to have the legend required by Section 8.5 hereof removed from his Stock certificate. 8.7 Voting Rights. During the Period of Restriction, Participants holding Restricted Stock granted hereunder may exercise full voting rights with respect to such Stock. 15 8.8 Dividends and Other Distributions. During the Period of Restriction, Participants holding Restricted Stock granted hereunder shall be entitled to receive all dividends and other distributions paid with respect to such Stock while they are so held. If any such dividends or distributions are paid in Stock, the Stock shall be subject to the same restrictions on transferability as the Restricted Stock with respect to which they were paid. 8.9 Termination of Employment or Service. In the event that a Participant terminates his employment or service with the Company or any of its Subsidiaries for any reason or is terminated for Cause during the Period of Restriction, then any Restricted Stock still subject to restrictions as of the date of such termination shall automatically be forfeited and returned to the Company; provided, however, that in the event of an involuntary termination of the employment or service of a Participant by the Company or any of its Subsidiaries other than for Cause, the Board or the Committee, in its sole discretion (subject to Section 3.8 hereof), may waive the automatic forfeiture of any or all such Stock and may add such new restrictions to such Restricted Stock as it deems appropriate. ARTICLE 9. PERFORMANCE UNITS, PERFORMANCE STOCK AND STOCK UNITS 9.1 Grant of Performance Units, Performance Stock or Stock Units. Subject to the terms and provisions of the Plan, Performance Units, Performance Stock or Stock Units may be granted to Participants at any time and from time to time as shall be determined by the Board or the Committee. The Board or the Committee shall have complete discretion in determining the number of Performance Units, Performance Stock or Stock Units granted to each Participant. 9.2 Value of Performance Units and Performance Stock. The Board or the Committee shall set certain periods to be determined in advance by the Board or the Committee (the "Performance Periods"). Prior to each grant of Performance Units or Performance Stock, the Board or the Committee shall establish an initial value for each Performance Unit and an initial number of shares of Stock for each share of Performance Stock granted to each Participant for that Performance Period. Prior to each grant of Performance Units or Performance Stock, the Board or the Committee also shall set the performance goals (the "Performance Goals") that will be used to determine the extent to which the Participant receives a payment of the value of the Performance Units or number of shares of Stock for the Performance Stock awarded for such Performance Period. These goals will be based on the attainment, by the Company or its Subsidiaries, of certain objective or subjective performance measures, which shall include one or more of the following: total stockholder return, return on equity, return on capital, asset growth, earnings per share, market price, stock price, revenues, costs, net income, cash flow and retained earnings. Such Performance Goals also may be based upon the attainment of specified levels of performance of the Company or one or more Subsidiaries under one or more measures described above relative to the performance of other corporations. With respect to each such performance measure utilized during a Performance Period, the Board or the Committee shall assign percentages to various levels of performance which shall be applied to determine the extent to which the Participant shall receive a payout of the values of Performance Units and number of shares of Performance Stock awarded. With respect to Covered Employees, all Performance Goals shall be objective performance goals satisfying the requirements for "performance-based compensation" within the meaning of Section 162(m)(4) of the Code, and shall be set by the 16 Board or the Committee within the time period prescribed by Section 162(m) of the Code and related regulations. 9.3 Payment of Performance Units and Performance Stock. After a Performance Period has ended, the holder of a Performance Unit or Performance Stock shall be entitled to receive the value thereof as determined by the Board or the Committee. The Board or the Committee shall make this determination by first determining the extent to which the Performance Goals set pursuant to Section 9.2 hereof have been met. It will then determine the applicable percentage (which may exceed one hundred percent (100%)) to be applied to, and will apply such percentage to, the value of Performance Units or number of shares of Performance Stock to determine the payout to be received by the Participant. In addition, with respect to Performance Units and Performance Stock granted to any Covered Employee, no payout shall be made hereunder except upon written certification by the Board or the Committee that the applicable Performance Goal or Goals have been satisfied to a particular extent. 9.4 Value of Stock Units. Subject to the terms and provisions of the Plan, Stock Units may be granted to Participants at any time and from time to time on such terms as shall be determined by the Board or the Committee. The Board or the Committee shall have complete discretion in determining the number of Stock Units granted to each Participant. Subject to Section 14.3 hereof, Stock Units shall be payable in Stock upon the occurrence of certain trigger events set forth on the Participant's Election Form in his or her complete discretion (the "Trigger Events"). The terms and conditions of the Trigger Events may vary by Stock Unit Award, by Participant, or both. The Election Form shall be filed with the Secretary of the Company prior to the date on which any Stock Unit Award is made. Such election will be irrevocable as to any Stock Unit Award made after delivery of the Election Form to the Company, and it shall continue in effect until revoked, increased or decreased prospectively by Participant prior to the grant of any future Stock Unit Award for which the change is effective. 9.5 Accounting for Stock Units. The Participant's Stock Unit Award shall be credited by the Company to a bookkeeping account to reflect the Company's liability to that Participant (the "Stock Unit Account"). Each Stock Unit is credited as a Stock equivalent on the date so credited. Additional Stock equivalents may be added to the Stock Unit Account equal to the amount of Stock that could be purchased with dividends equal to that paid on one share of Stock, multiplied by the number of Stock equivalents then existing in the Stock Unit Account, based on the Fair Market Value of the Stock on the date a dividend is paid. Because the Trigger Events of each Stock Unit Award may differ, the Company shall establish a separate Stock Unit Account for each separate Stock Unit Award. Upon the occurrence of particular Trigger Events, the holder of a Stock Unit Award shall be entitled to receive a number of shares of Stock which corresponds to the number of Stock Units granted as part of the initial Stock Unit Award, as such amount may have been increased to reflect dividends paid with respect thereto. Because the payout of Stock Unit Awards is not based on objective performance goals, such award will not constitute "performance-based" compensation within the meaning of Section 162(m)(4)(C) of the Code and, as such, will count toward the annual $1,000,000 deduction limit. 9.6 Board or Committee Discretion to Adjust Awards. Subject to Section 3.2 hereof regarding Awards to Covered Employees, the Board or the Committee shall have the authority to modify, amend or adjust the terms and conditions of any Performance Unit Award, Performance 17 Stock Award or Stock Unit Award, at any time or from time to time, including but not limited to the Performance Goals. 9.7 Form of Payment. The value of a Performance Unit or a share of Performance Stock may be paid in cash, Stock or a combination thereof as determined by the Board or the Committee. In the case of Stock Units, payment shall be made in Stock. Payment may be made in a lump sum or installments as prescribed by the Board or the Committee. Subject to Section 14.3 hereof, if any payment is to be made on a deferred basis, the Board or the Committee may provide for the payment of dividend equivalents or interest during the deferral period. 9.8 Termination of Employment or Service Due to Death, Disability, or Retirement. In the case of death, becoming Disabled, or retirement (in the case of a Participant who is an employee) (retirement as defined under the established rules of the Company or any of its Subsidiaries, as the case may be), the holder of a Performance Unit or Performance Stock shall receive a prorated payment based on the Participant's number of full months of service during the Performance Period and on the percentage of the Performance Goals achieved through the date of termination, as computed by the Board or the Committee. Payment shall be made at the time payments are made to Participants who did not terminate service during the Performance Period. In the case of Stock Units, all such Stock Units held, to the extent vested at the date of such Participant's termination of employment or service, will be paid as set forth in the Participant's Election Form. 9.9 Termination of Employment or Service for Other Reasons. In the event that a Participant terminates employment or service with the Company or any of its Subsidiaries for any reason other than death, becoming Disabled, or retirement, all Performance Units and Performance Stock shall be forfeited; provided, however, that in the event of an involuntary termination of the employment or service of the Participant by the Company or any of its Subsidiaries other than for Cause, the Board or the Committee in its sole discretion may waive the automatic forfeiture provisions and pay out on a pro rata basis. In the case of termination other than for Cause, all Stock Units held, to the extent vested at the date of such Participant's termination of employment or service, will be paid as set forth in the Participant's Election Form. However, in the event of termination for Cause, all Stock Units held will be forfeited. 9.10 Nontransferability. No Performance Units, Performance Stock or Stock Units granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution until the termination of the applicable Performance Period or, in the case of Stock Units, vesting and payment. All rights with respect to Performance Units, Performance Stock and Stock Units granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant. ARTICLE 10. BENEFICIARY DESIGNATION Each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively and who may include a trustee under a will or living trust) to whom any benefit under the Plan is to be paid in case of his death before he receives any or all of such benefit. Each designation will revoke all prior designations 18 by the same Participant, shall be in a form prescribed by the Board or the Committee, and will be effective only when filed by the Participant in writing with the Board or the Committee during his lifetime. In the absence of any such designation or if all designated beneficiaries predecease the Participant, benefits remaining unpaid at the Participant's death shall be paid to the Participant's estate. ARTICLE 11. RIGHTS OF EMPLOYEES 11.1 Employment or Service. Nothing in the Plan shall interfere with or limit in any way the right of the Company or any of its Subsidiaries to terminate any Participant's employment or service at any time, nor confer upon any Participant any right to continue in the employ or service of the Company or any of its Subsidiaries. 11.2 Participation. No individual shall have the right to be selected as a Participant, or, having been so selected, to be selected again as a Participant. 11.3 No Implied Rights; Rights on Termination of Service. Neither the establishment of the Plan nor any amendment thereof shall be construed as giving any Participant, beneficiary, or any other person any legal or equitable right unless such right shall be specifically provided for in the Plan or conferred by specific action of the Board or the Committee in accordance with the terms and provisions of the Plan. Except as expressly provided in this Plan, neither the Company nor any of its Subsidiaries shall be required or be liable to make any payment under the Plan. 11.4 No Right to Company Assets. Neither the Participant nor any other person shall acquire, by reason of the Plan, any right in or title to any assets, funds or property of the Company or any of its Subsidiaries whatsoever including, without limiting the generality of the foregoing, any specific funds, assets, or other property which the Company or any of its Subsidiaries, in its sole discretion, may set aside in anticipation of a liability hereunder. Any benefits which become payable hereunder shall be paid from the general assets of the Company or the applicable subsidiary. The Participant shall have only a contractual right to the amounts, if any, payable hereunder unsecured by any asset of the Company or any of its Subsidiaries. Nothing contained in the Plan constitutes a guarantee by the Company or any of its Subsidiaries that the assets of the Company or the applicable Subsidiary shall be sufficient to pay any benefit to any person. ARTICLE 12. CHANGE IN CONTROL 12.1 Stock-Based Awards. Notwithstanding any other provisions of the Plan, in the event of a Change in Control, all Stock-based Awards granted under this Plan shall immediately vest one hundred percent (100%) in each Participant (subject to Section 3.8 hereof), including Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock and Stock Units. 12.2 Performance-Based Awards. Notwithstanding any other provisions of the Plan, in the event of a Change in Control, all performance-based Awards granted under this Plan shall be immediately paid out in cash, including Performance Units and Performance Stock. The amount of the payout shall be based on the higher of: (i) the extent, as determined by the Board 19 or the Committee, to which Performance Goals, established for the Performance Period then in progress have been met up through and including the effective date of the Change in Control or (ii) one hundred percent (100%) of the value on the date of grant of the Performance Units or number of shares of Performance Stock. 12.3 Pooling Transactions. Notwithstanding anything contained in the Plan or any agreement to the contrary, in the event of a Change in Control which is also intended to constitute a Pooling Transaction, the Board or the Committee shall take such actions, if any, which are specifically recommended by an independent accounting firm retained by the Company to the extent reasonably necessary in order to assure that the Pooling Transaction will qualify as such, including but not limited to (a) subject to Section 14.3 hereof, deferring the vesting, exercise, payment or settlement with respect to any Award, (b) providing that the payment or settlement in respect of any Award be made in the form of cash, Stock or securities of a successor or acquired of the Company, or a combination of the foregoing and (c) providing for the extension of the term of any Award to the extent necessary to accommodate the foregoing, but not beyond the maximum term permitted for any Award. ARTICLE 13. AMENDMENT, MODIFICATION AND TERMINATION 13.1 Amendment, Modification and Termination. At any time and from time to time, the Board may terminate, amend, or modify the Plan, subject to the approval of the stockholders of the Company if required by the Code, by the insider trading rules of Section 16 of the Exchange Act, by any securities exchange or system on which the Stock is then listed or reported or by any regulatory body having jurisdiction with respect hereto. 13.2 Awards Previously Granted. No termination, amendment or modification of the Plan other than pursuant to Section 4.3 hereof, Section 9.6 hereof or Section 14.3 hereof shall in any manner adversely affect any Award theretofore granted under the Plan, without the written consent of the Participant. ARTICLE 14. TAXES AND WITHHOLDING 14.1 Tax Withholding. The Company and any of its Subsidiaries shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company or any of its Subsidiaries, an amount sufficient to satisfy Federal, state and local taxes (including the Participant's FICA obligation) required by law to be withheld with respect to any grant, exercise, or payment made under or as a result of this Plan. 14.2 Stock Delivery or Withholding. With respect to withholding required upon the exercise of Nonqualified Stock Options, or upon the lapse of restrictions on Restricted Stock, Participants may elect, subject to the approval of the Board or the Committee, to satisfy the withholding requirement, in whole or in part, by tendering to the Company previously acquired Stock or by having the Company withhold Stock, in each such case in an amount having a Fair Market Value equal to the amount required to be withheld to satisfy the tax withholding obligations described in Section 14.1 hereof. The value of the Stock to be tendered or withheld is to be based on the Fair Market Value of the Stock on the date that the amount of tax to be withheld is to be determined. All Stock withholding elections shall be irrevocable and made in 20 writing, signed by the Participant on forms approved by the Board or the Committee in advance of the day that the transaction becomes taxable. Stock withholding elections made by Participants who are subject to the short-swing profit restrictions of Section 16 of the Exchange Act must comply with the additional restrictions of Section 16 and Rule 16b-3 in making their elections. 14.3 Income Taxes and Deferred Compensation. Participants are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with Awards (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold any Participant harmless from any or all of such taxes. The Committee shall have the discretion to organize any deferral program, to require deferral election forms, and to grant or to unilaterally modify any Award in a manner that (i) conforms with the requirements of Section 409A of the Code with respect to compensation that is deferred or that vests after December 31, 2004, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any valid second election to defer, provided that the Committee permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Committee shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and all Awards. ARTICLE 15. EFFECT OF CERTAIN TRANSACTIONS Effect of Certain Transactions. Subject to Section 12 hereof, or as otherwise provided in an agreement, in the event of (a) the liquidation or dissolution of the Company or (b) a merger, consolidation or combination of the Company (a "Transaction"), the Plan and the Awards issued hereunder shall continue in effect in accordance with their respective terms except that following a Transaction each Participant shall be entitled to receive in respect of each share of Stock subject to any outstanding Options or Awards, as the case may be, upon exercise of any Option or payment or transfer in respect of any Award, the same number and kind of Stock, securities, cash, property, or other consideration that each holder of a share of Stock was entitled to receive in the Transaction in respect of a share of Stock; provided, however, that such Stock, securities, cash, property, or other consideration shall remain subject to all of the conditions, restrictions and performance criteria which were applicable to the Options or Awards prior to such Transaction. ARTICLE 16. REQUIREMENTS OF LAW 16.1 Requirements of Law. The granting of Awards and the issuance of Stock under this Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or securities exchanges as may be required. 16.2 Governing Law. The Plan, and all agreements hereunder, shall be construed in accordance with and governed by the laws of the State of New York. 21 Effective Date of this Second Amended and Restated 1997 Long-Term Incentive Stock Plan: December 31, 2004 EX-10 3 ex10-5.txt EX. 10.5 - AMD & REST 2004 LNG-TRM INCENT PLAN Exhibit 10.5 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN 1. Establishment, Purpose, and Types of Awards On May 6, 2004, Capital Trust, Inc., a Maryland corporation (the "Company") established an incentive compensation plan known as the "Capital Trust, Inc. 2004 Long-Term Incentive Plan" (hereinafter referred to as the "Plan"), for the purpose of attracting, retaining and motivating select employees, officers, directors, advisors, and consultants for the Company and its Affiliates and to provide incentives and awards for superior performance. On December 31, 2004, the Company amended and restated the Plan in order to provide the Administrator with discretion to conform the Plan and its Awards with Section 409A of the Code. The Plan permits the granting of the following types of awards ("Awards"), according to the Sections of the Plan listed here: Section 6 Options Section 7 Share Appreciation Rights Section 8 Restricted and Unrestricted Share Awards Section 9 Deferred Share Units Section 10 Performance Awards The Plan is not intended to affect and shall not affect any stock options, equity-based compensation, or other benefits that the Company or its Affiliates may have provided, or may separately provide in the future pursuant to any agreement, plan, or program that is independent of this Plan. 2. Defined Terms Terms in the Plan that begin with an initial capital letter have the defined meaning set forth in Appendix A, unless defined elsewhere in this Plan or the context of their use clearly indicates a different meaning. 3. Shares Subject to the Plan Subject to the provisions of Section 13 of the Plan, the maximum number of Shares that the Company may issue is 1,000,000 Shares for all Awards. For all Awards, these Shares may be authorized but unissued Shares, or Shares that the Company has reacquired or otherwise holds in treasury. Shares that are subject to an Award that for any reason expires, is forfeited, is cancelled, or becomes unexercisable, and Shares that are for any other reason not paid or delivered under the Plan shall again, except to the extent prohibited by Applicable Law, be available for subsequent Awards under the Plan. In addition, the Committee may make future Awards with 1 respect to Shares that the Company retains from otherwise delivering pursuant to an Award either (i) as payment of the exercise price of an Award, or (ii) in order to satisfy the withholding or employment taxes due upon the grant, exercise, vesting, or distribution of an Award. Notwithstanding the foregoing, but subject to adjustments pursuant to Section 13 below, the number of Shares that are available for ISO Awards shall be determined, to the extent required under applicable tax laws, by reducing the number of Shares designated in the preceding paragraph by the number of Shares granted pursuant to ISO Awards (whether or not Shares are issued pursuant to such Awards); provided that any Shares that are either purchased under the Plan and forfeited back to the Plan, or surrendered in payment of the Exercise Price for an Award shall be available for issuance pursuant to ISO Awards. 4. Administration (a) General. The Committee shall administer the Plan in accordance with its terms, provided that the Board may act in lieu of the Committee on any matter. The Committee shall hold meetings at such times and places as it may determine and make such rules and regulations for the conduct of its business as it deems advisable. In the absence of a duly appointed Committee or if the Board otherwise chooses to act in lieu of a Committee, the Board shall function as the Committee for all purposes of the Plan. (b) Committee Composition. The Board shall appoint the members of the Committee. If and to the extent permitted by Applicable Law, the Committee may authorize one or more Reporting Persons (or other officers) to make Awards to Eligible Persons who are not Reporting Persons (or other officers whom the Committee has specifically authorized to make Awards). The Board may at any time appoint additional members to the Committee, remove and replace members of the Committee with or without Cause, and fill vacancies on the Committee however caused. (c) Powers of the Committee. Subject to the provisions of the Plan, the Committee shall have the authority, in its sole discretion: (i) to determine Eligible Persons to whom Awards shall be granted from time to time and the number of Shares, units, or SARs to be covered by each Award; (ii) to determine, from time to time, the Fair Market Value of Shares; (iii) to determine, and to set forth in Award Agreements, the terms and conditions of all Awards, including any applicable exercise or purchase price, the installments and conditions under which an Award shall become vested (which may be based on performance), terminated, expired, cancelled, renewed, or replaced, and the circumstances for vesting acceleration or waiver of forfeiture restrictions, and other restrictions and limitations; (iv) to approve the forms of Award Agreements and all other documents, notices and certificates in connection therewith which need not be identical either as to type of Award or among Participants; 2 (v) to construe and interpret the terms of the Plan and any Award Agreement, to determine the meaning of their terms, and to prescribe, amend, and rescind rules and procedures relating to the Plan and its administration; and (vi) in order to fulfill the purposes of the Plan and without amending the Plan, modify, cancel, or waive the Company's rights with respect to any Awards, to adjust or to modify Award Agreements for changes in Applicable Law, and to recognize differences in foreign law, tax policies, or customs; and (vii) to make all other interpretations and to take all other actions that the Committee may consider necessary or advisable to administer the Plan or to effectuate its purposes. Subject to Applicable Law and the restrictions set forth in the Plan, the Committee may delegate administrative functions to individuals who are Reporting Persons, officers, or Employees of the Company or its Affiliates. (d) Deference to Committee Determinations. The Committee shall have the discretion to interpret or construe ambiguous, unclear, or implied (but omitted) terms in any fashion it deems to be appropriate in its sole discretion, and to make any findings of fact needed in the administration of the Plan or Award Agreements. The Committee's prior exercise of its discretionary authority shall not obligate it to exercise its authority in a like fashion thereafter. The Committee's interpretation and construction of any provision of the Plan, or of any Award or Award Agreement, shall be final, binding, and conclusive. The validity of any such interpretation, construction, decision or finding of fact shall not be given de novo review if challenged in court, by arbitration, or in any other forum, and shall be upheld unless clearly arbitrary or capricious. (e) No Liability; Indemnification. Neither the Board nor any Committee member, nor any Person acting at the direction of the Board or the Committee, shall be liable for any act, omission, interpretation, construction or determination made in good faith with respect to the Plan, any Award or any Award Agreement. The Company and its Affiliates shall pay or reimburse any member of the Committee, as well as any Director, Employee, or Consultant who takes action in connection with the Plan, for all expenses incurred with respect to the Plan, and to the full extent allowable under Applicable Law shall indemnify each and every one of them for any claims, liabilities, and costs (including reasonable attorney's fees) arising out of their good faith performance of duties under the Plan. The Company and its Affiliates may obtain liability insurance for this purpose. 5. Eligibility (a) General Rule. The Committee may grant ISOs only to Employees (including officers who are Employees) of the Company or an Affiliate that is a "parent corporation" or "subsidiary corporation" within the meaning of Section 424 of the Code, and may grant all other Awards to any Eligible Person. A Participant who has been granted an Award may be granted an additional Award or Awards if the Committee shall so determine, if such Person is otherwise an Eligible Person and if otherwise in accordance with the terms of the Plan. 3 (b) Grant of Awards. Subject to the express provisions of the Plan, the Committee shall determine from the class of Eligible Persons those individuals to whom Awards under the Plan may be granted, the number of Shares subject to each Award, the price (if any) to be paid for the Shares or the Award and, in the case of Performance Awards, in addition to the matters addressed in Section 10 below, the specific objectives, goals and performance criteria that further define the Performance Award. Each Award shall be evidenced by an Award Agreement signed by the Company and, if required by the Committee, by the Participant. The Award Agreement shall set forth the material terms and conditions of the Award established by the Committee. (c) Limits on Awards. No Participant may receive Options and SARs that relate to more than 500,000 Shares per calendar year. The Committee will adjust these limitations pursuant to Section 13 below. (d) Replacement Awards. The Committee may, in its sole discretion and upon such terms as it deems appropriate, require as a condition of the grant of an Award to a Participant that the Participant surrender for cancellation some or all of the Awards or other awards that have previously been granted to the Participant under this Plan or otherwise. An Award that is conditioned upon such surrender may or may not be the same type of Award, may cover the same (or a lesser or greater) number of Shares as such surrendered Award, may have other terms that are determined without regard to the terms or conditions of such surrendered Award, and may contain any other terms that the Committee deems appropriate. In the case of Options, these other terms may not involve an Exercise Price that is lower than the Exercise Price of the surrendered Option unless either the new grant will not create any material financial expense for the Company or the Company's shareholders approve the grant itself or the program under which it is made pursuant to the Plan. 6. Option Awards (a) Types; Documentation. The Committee may in its discretion grant ISOs to any Employee and Non-ISOs to any Eligible Person, and shall evidence any such grants in an Award Agreement that is delivered to the Participant. Each Option shall be designated in the Award Agreement as an ISO or a Non-ISO. At the sole discretion of the Committee, any Option may be exercisable, in whole or in part, immediately upon the grant thereof, or only after the occurrence of a specified event, or only in installments, which installments may vary. Options granted under the Plan may contain such terms and provisions not inconsistent with the Plan that the Committee shall deem advisable in its sole and absolute discretion. (b) ISO $100,000 Limitation. To the extent that the aggregate Fair Market Value of Shares with respect to which Options designated as ISOs first become exercisable by a Participant in any calendar year (under this Plan and any other plan of the Company or any Affiliate) exceeds $100,000, such excess Options shall be treated as Non-ISOs. For purposes of determining whether the $100,000 limit is exceeded, the Fair Market Value of the Shares subject to an ISO shall be determined as of the Grant Date. In reducing the number of Options treated as ISOs to meet the $100,000 limit, the most recently granted Options shall be reduced first. In the event that Section 422 of the Code is amended to alter the limitation set forth therein, the limitation of this Section 6(b) shall be automatically adjusted accordingly. 4 (c) Term of Options. Each Award Agreement shall specify a term at the end of which the Option automatically expires, subject to earlier termination provisions contained in Section 6(h) hereof; provided, that, the term of any Option may not exceed ten years from the Grant Date. In the case of an ISO granted to an Employee who is a Ten Percent Holder on the Grant Date, the term of the ISO shall not exceed five years from the Grant Date. (d) Exercise Price. The exercise price of an Option shall be determined by the Committee in its discretion and shall be set forth in the Award Agreement, subject to the following special rules: (i) ISOs. If an ISO is granted to an Employee who on the Grant Date is a Ten Percent Holder, the per Share exercise price shall not be less than 110% of the Fair Market Value per Share on such Grant Date. If an ISO is granted to any other Employee, the per Share exercise price shall not be less than 100% of the Fair Market Value per Share on the Grant Date. (ii) Non-ISOs. The per Share exercise price for the Shares to be issued pursuant to the exercise of a Non-ISO shall not be less than 50% of the Fair Market Value per Share on the Grant Date. (iii) Named Executive Officers. The per Share exercise price shall not be less than 100% of the Fair Market Value per Share on the Grant Date of an Option if (A) on such Grant Date, the Participant is subject to the limitations set forth in Section 162(m) of the Code, and (B) the grant is intended to qualify as performance-based compensation under Section 162(m) of the Code. (iv) Repricing. The Committee may at any time unilaterally reduce the exercise price for any Option, but only if (I) the reduction will not cause material financial expense for the Company or the Company's shareholders approve the reduction or the program under which it is made, and (II) the Committee promptly provides a written notice to any Participant affected by the reduction. (v) Adjustment for Section 409A of the Code. In the event an Option is granted with an Exercise Price that is below the Fair Market Value per Share on the date of grant, and subject to Section 11(e) below, the Option shall be subject to any terms and conditions that the Administrator may in its discretion determine to be necessary to avoid the income tax penalties set forth under Section 409A of the Code. (e) Exercise of Option. The times, circumstances and conditions under which an Option shall be exercisable shall be determined by the Committee in its sole discretion and set forth in the Award Agreement. The Committee shall have the discretion to determine whether and to what extent the vesting of Options shall be tolled during any unpaid leave of absence; provided, however, that in the absence of such determination, vesting of Options shall be tolled during any such leave approved by the Company. (f) Minimum Exercise Requirements. An Option may not be exercised for a fraction of a Share. The Committee may require in an Award Agreement that an Option be exercised as 5 to a minimum number of Shares, provided that such requirement shall not prevent a Participant from purchasing the full number of Shares as to which the Option is then exercisable. (g) Methods of Exercise. Prior to its expiration pursuant to the terms of the applicable Award Agreement, and subject to the times, circumstances, and conditions for exercisability contained in the applicable Award Agreement, each Option may be exercised, in whole or in part (provided that the Company shall not be required to issue fractional shares), by delivery of written notice of exercise to the secretary of the Company accompanied by the payment of the full exercise price of the Shares being purchased. Unless otherwise provided in the applicable Award Agreement, the acceptable methods of payment on the Grant Date of any Option shall include the following: (i) cash or check payable to the Company (in U.S. dollars); (ii) other Shares that (A) are owned by the Participant who is purchasing Shares pursuant to an Option, (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which the Option is being exercised, (C) were not acquired by such Participant pursuant to the exercise of an Option, unless such Shares have been owned by such Participant for at least six months or such other longer period as the Committee may determine, (D) are all, at the time of such surrender, free and clear of any and all claims, pledges, liens and encumbrances, or any restrictions which would in any manner restrict the transfer of such shares to or by the Company (other than such restrictions as may have existed prior to an issuance of such Shares by the Company to such Participant), and (E) are duly endorsed for transfer to the Company; (iii) a cashless exercise program that the Committee may approve, from time to time in its discretion, pursuant to which a Participant may concurrently provide irrevocable instructions (A) to such Participant's broker or dealer to effect the immediate sale of the purchased Shares and remit to the Company, out of the sale proceeds available on the settlement date, sufficient funds to cover the exercise price of the Option plus all applicable taxes required to be withheld by the Company by reason of such exercise and (B) to the Company to deliver the certificates for the purchased Shares directly to such broker or dealer in order to complete the sale; (iv) the Participant's surrender of Restricted Shares, Restricted Share Units, Share Appreciation Rights, or Deferred Share Units; provided that to the extent payment is made by means of the surrender of any Award which is unvested or subject to restrictions, the Shares issued pursuant to such surrender shall be subject to the same vesting terms and other restrictions that applied to the surrendered Award; or (v) any combination of the foregoing methods of payment. The Committee shall have the discretion to exclude from an Award Agreement any methods of payment set forth above. The Company shall not be required to deliver Shares pursuant to the exercise of an Option until payment of the full exercise price therefore is received by the Company. 6 (h) Termination of Continuous Service. The Committee may establish and set forth in the applicable Award Agreement the terms and conditions on which an Option shall remain exercisable, if at all, following termination of a Participant's Continuous Service. The Committee may waive or modify these provisions at any time. To the extent that a Participant is not entitled to exercise an Option at the date of his or her termination of Continuous Service, or if the Participant (or other Person entitled to exercise the Option) does not exercise the Option to the extent so entitled within the time specified in the Award Agreement or below (as applicable), the Option shall terminate and the Shares underlying the unexercised portion of the Option shall revert to the Plan and become available for future Awards. In no event may any Option be exercised after the expiration of the Option term as set forth in the Award Agreement. The following provisions shall apply to the extent an Award Agreement does not specify the terms and conditions upon which an Option shall terminate when there is a termination of a Participant's Continuous Service: (i) Termination other than Upon Disability or Death or for Cause. In the event of termination of a Participant's Continuous Service (other than as a result of Participant's death, disability, retirement or termination for Cause), the Participant shall have the right to exercise an Option at any time within 90 days following such termination to the extent the Participant was entitled to exercise such Option at the date of such termination. (ii) Disability. In the event of termination of a Participant's Continuous Service as a result of becoming Disabled, the Participant shall have the right to exercise an Option at any time within one year following such termination to the extent the Participant was entitled to exercise such Option at the date of such termination. (iii) Retirement. In the event of termination of a Participant's Continuous Service as a result of Participant's retirement, the Participant shall have the right to exercise the Option at any time within six months following such termination to the extent the Participant was entitled to exercise such Option at the date of such termination. (iv) Death. In the event of the death of a Participant during the period of Continuous Service since the Grant Date of an Option, or within 90 days following termination of the Participant's Continuous Service, the Option may be exercised, at any time within one year following the date of the Participant's death, by the Participant's estate or by a Person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent the right to exercise the Option had vested at the date of death or, if earlier, the date the Participant's Continuous Service terminated. (v) Cause. If the Committee determines that a Participant's Continuous Service terminated due to Cause, the Participant shall immediately forfeit the right to exercise any Option, and it shall be considered immediately null and void. (i) Reverse Vesting. The Plan Administrator in its discretion may allow a Participant to exercise unvested Options, in which case the Shares then issued shall be Restricted Share Units having analogous vesting restrictions to the unvested Options. 7 (j) Buyout Provisions. The Committee may at any time offer to buy out an Option, in exchange for a payment in cash or Shares, based on such terms and conditions as the Committee shall establish and communicate to the Participant at the time that such offer is made. In addition, if the Fair Market Value for Shares subject to an Option is more than 33% below their exercise price for more than 30 consecutive business days, the Committee may unilaterally terminate and cancel the Option either (i) by paying the Participant, in cash or Shares, an amount not less than the Black-Scholes value of the vested portion of the Option, or (ii) by irrevocably committing to grant a new Option, on a designated date more than six months after such termination and cancellation of such Option (but only if the Participant's Continuous Service has not terminated prior to such designated date), on substantially the same terms as the cancelled Option, provided that the per Share exercise price for the new Option shall equal the per Share Fair Market Value of a Share on the date the new grant occurs. 7. Share Appreciate Rights (SARs) (a) Grants. The Committee may in its discretion grant Share Appreciation Rights to any Eligible Person, in any of the following forms: (i) SARs related to Options. The Committee may grant SARs either concurrently with the grant of an Option or with respect to an outstanding Option, in which case the SAR shall extend to all or a portion of the Shares covered by the related Option. An SAR shall entitle the Participant who holds the related Option, upon exercise of the SAR and surrender of the related Option, or portion thereof, to the extent the SAR and related Option each were previously unexercised, to receive payment of an amount determined pursuant to Section 7(e) below. Any SAR granted in connection with an ISO will contain such terms as may be required to comply with the provisions of Section 422 of the Code and the regulations promulgated thereunder. (ii) SARs Independent of Options. The Committee may grant SARs which are independent of any Option subject to such conditions as the Committee may in its discretion determine, which conditions will be set forth in the applicable Award Agreement. (iii) Limited SARs. The Committee may grant SARs exercisable only upon or in respect of a Change in Control or any other specified event, and such limited SARs may relate to or operate in tandem or combination with or substitution for Options or other SARs, or on a stand-alone basis, and may be payable in cash or Shares based on the spread between the exercise price of the SAR, and (A) a price based upon or equal to the Fair Market Value of the Shares during a specified period, at a specified time within a specified period before, after or including the date of such event, or (B) a price related to consideration payable to Company's shareholders generally in connection with the event. (b) Exercise Price. The per Share exercise price of an SAR shall be determined in the sole discretion of the Committee, shall be set forth in the applicable Award Agreement, and shall be no less than 50% of the Fair Market Value of one Share. The exercise 8 price of an SAR related to an Option shall be the same as the exercise price of the related Option. The exercise price of an SAR shall be subject to the special rules on pricing contained in paragraphs (iii) and (iv) of Section 6(d) hereof. (c) Exercise of SARs. Unless the Award Agreement otherwise provides, an SAR related to an Option will be exercisable at such time or times, and to the extent, that the related Option will be exercisable. An SAR may not have a term exceeding ten years from its Grant Date. An SAR granted independently of any other Award will be exercisable pursuant to the terms of the Award Agreement. Whether an SAR is related to an Option or is granted independently, the SAR may only be exercised when the Fair Market Value of the Shares underlying the SAR exceeds the exercise price of the SAR. (d) Effect on Available Shares. To the extent that an SAR is exercised, only the actual number of delivered Shares (if any) will be charged against the maximum number of Shares that may be delivered pursuant to Awards under this Plan. The number of Shares subject to the SAR and the related Option of the Participant will, however, be reduced by the number of underlying Shares as to which the exercise relates, unless the Award Agreement otherwise provides. (e) Payment. Upon exercise of an SAR related to an Option and the attendant surrender of an exercisable portion of any related Award, the Participant will be entitled to receive payment of an amount determined by multiplying - (i) the excess of the Fair Market Value of a Share on the date of exercise of the SAR over the exercise price per Share of the SAR, by (ii) the number of Shares with respect to which the SAR has been exercised. Notwithstanding the foregoing, an SAR granted independently of an Option may limit the amount payable to the Participant to a percentage, specified in the Award Agreement but not exceeding one-hundred percent (100%), of the amount determined pursuant to the preceding sentence. (f) Form and Terms of Payment. Subject to Applicable Law, the Committee may, in its sole discretion, settle the amount determined under Section 7(e) above solely in cash, solely in Shares (valued at their Fair Market Value on the date of exercise of the SAR), or partly in cash and partly in Shares. In any event, cash shall be paid in lieu of fractional Shares. Absent a contrary determination by the Committee, all SARs shall be settled in cash as soon as practicable after exercise. Notwithstanding the foregoing, the Committee may, in an Award Agreement, (i) determine the maximum amount of cash or Shares or combination thereof that may be delivered upon exercise of an SAR, and (ii) impose payment or other restrictions, including restrictions intended to conform the SARs with any applicable provisions of Section 409A of the Code. (g) Termination of Employment or Consulting Relationship. The Committee shall establish and set forth in the applicable Award Agreement the terms and conditions on which an SAR shall remain exercisable, if at all, following termination of a Participant's Continuous Service. The provisions of Section 6(h) above shall apply to the extent an Award Agreement does not specify the terms and conditions upon which an SAR shall terminate when there is a termination of a Participant's Continuous Service. 9 (h) Repricing and Buy-out. The Committee has the same discretion to reprice and to buy-out SARs as it has to take such actions with respect to Options. 8. Restricted and Unrestricted Share Awards (a) Grants. The Committee may in its discretion grant restricted shares ("Restricted Shares") to any Eligible Person and shall evidence such grant in an Award Agreement that is delivered to the Participant which sets forth the number of Restricted Shares, the purchase price for such Restricted Shares (if any) and the terms upon which the Restricted Shares may become vested. In addition, the Company may in its discretion grant the right to receive Shares after certain vesting requirements are met ("Restricted Share Units") to any Eligible Person and shall evidence such grant in an Award Agreement that is delivered to the Participant which sets forth the number of Shares (or formula, that may be based on future performance or conditions, for determining the number of Shares) that the Participant shall be entitled to receive upon vesting and the terms upon which the Shares subject to Restricted Share Units may become vested. Unless otherwise provided in the Award Agreement, the holder of Restricted Shares shall receive any cash and stock dividends declared and paid on the Restricted Shares. Unless otherwise provided in the Award Agreement, the holder of Restricted Share Units shall receive (i) in the case of any cash dividends declared and paid on the Shares, a cash amount equal to that amount that would otherwise be payable as cash dividends so declared and paid if the Shares subject to the then outstanding Restricted Share Units were outstanding and (ii) in the case of any stock dividends declared and paid on the Shares, a grant of additional Restricted Share Units (which shall be subject to the same outstanding vesting terms) for the number of Shares equal to any stock dividends so declared and paid that would otherwise be payable if the Shares subject to the then outstanding Restricted Share Units were outstanding. The Committee may condition any Award of Restricted Shares or Restricted Share Units to a Participant on receiving from the Participant such further assurances and documents as the Committee may require to enforce the restrictions. In addition, the Committee may grant Awards hereunder in the form of unrestricted Shares ("Unrestricted Shares"), which shall vest in full upon the date of grant or such other date as the Committee may determine or which the Committee may issue pursuant to any program under which one or more Eligible Persons (selected by the Committee in its discretion) elect to receive Unrestricted Shares in lieu of cash bonuses that would otherwise be paid. (b) Vesting. The Committee shall set forth in an Award Agreement granting Restricted Shares or Restricted Share Units, the terms and conditions under which the Participant's interest in the Restricted Shares or the Shares subject to Restricted Share Units will become vested. Except as set forth in the applicable Award Agreement or as the Committee otherwise determines, upon termination of a Participant's Continuous Service for any other reason, the Participant shall forfeit his or her unvested Restricted Shares and Restricted Share Units; provided that if a Participant purchases the Restricted Shares and forfeits them for any reason, the Company shall return the purchase price to the Participant only if and to the extent set forth in an Award Agreement. (c) Issuance of Restricted Shares Prior to Vesting. The Company shall issue stock certificates that evidence Restricted Shares pending the lapse of applicable restrictions, and that bear a legend making appropriate reference to such restrictions. Except as set forth in the applicable Award Agreement or the Committee otherwise determines, the Company or a third 10 party that the Company designates shall hold such Restricted Shares and any dividends not currently paid to the Participant pursuant to the applicable Award Agreement. (d) Issuance of Shares upon Vesting. As soon as practicable after vesting of a Participant's Restricted Shares (or Shares underlying Restricted Share Units) and the Participant's satisfaction of applicable tax withholding requirements, the Company shall release to the Participant, free from the vesting restrictions, one Share for each vested Restricted Share (or issue one Share free of the vesting restriction for each vested Restricted Share Unit), unless an Award Agreement provides otherwise. No fractional shares shall be distributed, and cash shall be paid in lieu thereof. (e) Dividends payable on Vesting. If an Award Agreement does not provide for an earlier payment of dividends, whenever Shares are issued to a Participant or duly-authorized transferee under Section 8(d) above pursuant to the vesting of Restricted Shares or the Shares underlying Restricted Share Units, such Participant or duly-authorized transferee shall also be entitled to receive, with respect to each Share issued, an amount equal to any cash dividends (plus simple interest at a rate of five percent per annum, or such other reasonable rate as the Committee may determine) and a number of Shares equal to any stock dividends, which were declared and paid to the holders of Shares between the Grant Date and the date such Share is issued to the extent not currently paid to the Participant pursuant to the applicable Award Agreement. (f) Section 83(b) Elections. If a Participant who has received Restricted Share Units provides the Committee with written notice of his or her intention to make an election under Section 83(b) of the Code with respect to the Shares subject to such Restricted Share Units (the "Section 83(b) Election"), the Committee may in its discretion convert the Participant's Restricted Share Units into Restricted Shares, on a one-for-one basis, in full satisfaction of the Participant's Restricted Share Unit Award. (g) Deferral Elections. Subject to Section 11(e) below, at any time within the calendar year in which a Participant who is a member of a "select group of management or highly compensated employees" (within the meaning of ERISA) receives an Award of either Restricted Shares or Restricted Share Units, the Committee may permit the Participant to irrevocably elect, on a form provided by and acceptable to the Committee, to defer the receipt of all or a percentage of the Shares that would otherwise be transferred to the Participant upon the vesting of such Award. If the Participant makes this election, the Shares subject to the election, and any associated unpaid dividends and interest thereon, shall be credited as Deferred Share Units (as defined below) to an Account (as defined below) established pursuant to Section 9 hereof on the date such Shares would otherwise have been released or issued to the Participant pursuant to Section 8(d) above. Notwithstanding the foregoing, Shares with respect to which a Participant makes a Section 83(b) Election shall not be eligible for deferral pursuant to Section 9 below. 9. Deferred Share Units (a) Elections to Defer. Subject to Section 11(e) below, the Committee may permit any Eligible Person who is a Director, Consultant or member of a "select group of management 11 or highly compensated employees" (within the meaning of the ERISA) to irrevocably elect, on a form provided by and acceptable to the Committee (the "Election Form"), to forego the receipt of cash or other compensation (including Restricted Shares for which a Section 83(b) Election has not been made, Shares subject to Restricted Share Units and the dividends or the cash amount equal to the amount of dividends that would otherwise be paid in respect of Restricted Shares or Shares subject to Restricted Share Units), and in lieu thereof to have the Company credit to an internal Plan account (the "Account") a number of deferred share units ("Deferred Share Units") having a Fair Market Value equal to the Shares and other compensation deferred. These credits will be made at the end of each calendar month during which compensation is deferred. Each Election Form shall take effect five business days after its delivery to the Company, unless during such five business day period the Company sends the Participant a written notice explaining why the Election Form is invalid. Notwithstanding the foregoing sentence, Election Forms shall be ineffective with respect to any compensation that a Participant earns before the date on which the Company receives the Election Form. (b) Vesting. Each Participant shall be 100% vested at all times in any Shares subject to Deferred Share Units. (c) Crediting of Dividends. Unless otherwise provided in the Award Agreement, whenever cash dividends are declared and paid on the Shares, the Account shall be credited with additional Deferred Share Units calculated by dividing (i) the amount obtained by multiplying the number of Shares subject to the then outstanding Deferred Share Units by the per share dividend amount by (ii) the Fair Market Value of the Shares on the date of payment of the dividends. Whenever stock dividends are declared and paid on the Shares, the Account shall be credited with additional Deferred Shares Units for the number of Shares equal to any stock dividends declared and paid on the Shares that would otherwise be payable if the Shares subject to the then outstanding Deferred Share Units were outstanding. (d) Issuances of Shares. The Company shall provide a Participant with one Share for each Deferred Share Unit in five substantially equal annual installments that are issued before the last day of each of the five calendar years that end after the date on which the Participant's Continuous Service terminates, unless the Participant has properly elected at the time the Participant makes a deferral election pursuant to Section 9(a) above a different method of distribution, on a form approved by the Committee that permits the Participant to select any combination of a lump sum and annual installments that are completed within ten years following termination of the Participant's Continuous Service. Fractional shares shall not be issued, and instead shall be paid out in cash. (e) Hardship Withdrawals. In the event a Participant suffers an unforeseeable hardship within the contemplation of this Section 9(e) , the Participant may apply to the Company for an immediate distribution of all or a portion of the Participant's Deferred Share Units. The hardship must result from a sudden and unexpected illness or accident of the Participant, the Participant's spouse, or a dependent of the Participant (within the meaning of Section 152(a) of the Code), casualty loss of property, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Examples of purposes which are not considered hardships include post-secondary school expenses or the desire to purchase a residence. In no event will a distribution be made to the 12 extent the hardship could be relieved through reimbursement or compensation by insurance or otherwise, or by liquidation of the Participant's nonessential assets to the extent such liquidation would not itself cause a severe financial hardship. The amount of any distribution hereunder shall be limited to the amount necessary to relieve the Participant's financial hardship plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution. The Committee shall determine whether a Participant has a qualifying hardship and the amount which qualifies for distribution, if any. The Committee may require evidence of the purpose and amount of the need, and may establish such application or other procedures as it deems appropriate. (f) Unsecured Rights to Deferred Compensation. A Participant's right to Deferred Share Units shall at all times constitute an unsecured promise of the Company to pay benefits as they come due. The right of the Participant or the Participant's duly-authorized transferee to receive benefits hereunder shall be solely an unsecured claim against the general assets of the Company. Neither the Participant nor the Participant's duly-authorized transferee shall have any claim against or rights in any specific assets, shares, or other funds of the Company. 10. Performance Awards (a) Performance Units. The Committee may in its discretion grant Performance Units to any Eligible Person and shall evidence such grant in an Award Agreement that is delivered to the Participant which sets forth the terms and conditions of the Award. A Performance Unit is an Award which is based on the achievement of specific goals with respect to the Company or any Affiliate or individual performance of the Participant, or a combination thereof, over a specified period of time. Subject to subsection (d) hereof , the maximum Performance Unit compensation that may be paid to any one Participant with respect to any one Performance Period (hereinafter defined) shall be 250,000 Shares, $5,000,000 in cash, or both. (b) Performance Compensation Awards. The Committee may, at the time of grant of a Performance Unit, designate such Award as a "Performance Compensation Award" in order that such Award constitutes "qualified performance-based compensation" under Code Section 162(m), in which event the Committee shall have the power to grant such Performance Compensation Award upon terms and conditions that qualify it as "qualified performance-based compensation" within the meaning of Code Section 162(m). With respect to each such Performance Compensation Award, the Committee shall establish, in writing within the time required under Code Section 162(m), a "Performance Period," "Performance Measure(s)", and "Performance Formula(e)" (each such term being hereinafter defined). Once established for a Performance Period, the Performance Measure(s) and Performance Formula(e) shall not be amended or otherwise modified to the extent such amendment or modification would cause the compensation payable pursuant to the Award to fail to constitute qualified performance-based compensation under Code Section 162(m). A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that the Performance Measure(s) for such Award are achieved and the Performance Formula(e) as applied against such Performance Measure(s) determines that all or some portion of such Participant's Award has been earned for the Performance Period. As soon as practicable after the close of each Performance Period, the Committee 13 shall review and certify in writing whether, and to what extent, the Performance Measure(s) for the Performance Period have been achieved and, if so, determine and certify in writing the amount of the Performance Compensation Award to be paid to the Participant and, in so doing, may use negative discretion to decrease, but not increase, the amount of the Award otherwise payable to the Participant based upon such performance. Subject to subsection (d) hereof, the maximum Performance Compensation Award for any one Participant for any one Performance Period shall be 250,000 Shares, $5,000,000 in cash, or both. (c) Definitions. (i) "Performance Formula" means, for a Performance Period, one or more objective formulas or standards established by the Committee for purposes of determining whether or the extent to which an Award has been earned based on the level of performance attained or to be attained with respect to one or more Performance Measure(s). Performance Formulae may vary from Performance Period to Performance Period and from Participant to Participant and may be established on a stand-alone basis, in tandem or in the alternative. (ii) "Performance Measure" means one or more of the following selected by the Committee to measure Company, Affiliate, and/or business unit performance for a Performance Period, whether in absolute or relative terms, including, without limitation: terms relative to a peer group or index; basic, diluted, or adjusted earnings per share; sales or revenue; earnings before interest, taxes, and other adjustments (in total or on a per share basis); basic or adjusted net income; basic or adjusted funds from operations or cash flow; returns on equity, assets, capital, revenue or similar measure; level and growth of dividends; the price or increase in price of Shares; total shareholder return; distributions received on the account of so called carried interests or incentive management fees from CT Mezzanine Partners II LP, CT Mezzanine Partners III, Inc., and any other private equity fund managed by the Company; total assets; growth in assets or new originations of assets; equity market capitalization; assets under management; third-party equity capital under management or raised; and mergers, acquisitions, sales of assets of Affiliates or business units. Each such measure shall be to the extent applicable, determined in accordance with generally accepted accounting principles as consistently applied by the Company (or such other standard applied by the Committee) and, if so determined by the Committee, and in the case of a Performance Compensation Award, to the extent permitted under Code Section 162(m), adjusted to omit the effects of extraordinary items, gain or loss on the disposal of a business segment, unusual or infrequently occurring events and transactions and cumulative effects of changes in accounting principles. Performance Measures may vary from Performance Period to Performance Period and from Participant to Participant, and may be established on a stand-alone basis, in tandem or in the alternative. (iii) "Performance Period" means one or more periods of time (of not less than one fiscal year of the Company), as the Committee may designate, over which the attainment of one or more Performance Measure(s) will be measured for the purpose of determining a Participant's rights in respect of an Award. 14 (d) Subject to Section 11(e) below, with respect to the maximum limits set forth in Section 10(a) and 10(b) above, the Committee shall have the discretion to provide in any Award Agreement that any amounts earned pursuant to a Performance Award (and/or in excess of the limits set forth in Sections 10(a) and 10(b) above) during a Performance Period will either be credited as Deferred Share Units (in accordance with the terms of Section 9 above), or as deferred cash compensation under a separate plan of the Company or an Affiliate (provided in the latter case that such deferred compensation either bears a reasonable rate of interest or has a value based on one or more predetermined actual investments). Any amounts in excess of the limits set forth under Sections 10(a) and 10(b) above for which payment to the Participant is deferred pursuant to the preceding sentence shall be paid to the Participant in a future year or years but not earlier than, and only to the extent that, the Participant is either not receiving compensation in excess of these limits for a Performance Period, or is not subject to the restrictions set forth under Section 162(b) of the Code. 11. Taxes (a) General. As a condition to the issuance or distribution of Shares pursuant to the Plan, the Participant (or in the case of the Participant's death, the Person who succeeds to the Participant's rights) shall make such arrangements as the Company may require for the satisfaction of any applicable federal, state, local or foreign withholding tax obligations that may arise in connection with the Award and the issuance of Shares. The Company shall not be required to issue any Shares until such obligations are satisfied. If the Committee allows the withholding or surrender of Shares to satisfy a Participant's tax withholding obligations, the Committee shall not allow Shares to be withheld in an amount that exceeds the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes. (b) Default Rule for Employees. In the absence of any other arrangement, an Employee shall be deemed to have directed the Company to withhold or collect from his or her cash compensation an amount sufficient to satisfy such tax obligations from the next payroll payment otherwise payable after the date of the exercise of an Award. (c) Special Rules. In the case of a Participant other than an Employee (or in the case of an Employee where the next payroll payment is not sufficient to satisfy such tax obligations, with respect to any remaining tax obligations), in the absence of any other arrangement and to the extent permitted under the Applicable Law, the Participant shall be deemed to have elected to have the Company withhold from the Shares or cash to be issued pursuant to an Award that number of Shares (or equivalent cash amount) having a Fair Market Value determined as of the applicable Tax Date (as defined below) equal to the amount required to be withheld. For purposes of this Section 11, the Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined under the Applicable Law (the "Tax Date"). (d) Surrender of Shares. If permitted by the Committee, in its discretion, a Participant may satisfy the minimum applicable tax withholding and employment tax obligations associated with an Award by surrendering Shares to the Company (including Shares that would otherwise be issued pursuant to the Award) that have a Fair Market Value determined as of the applicable Tax Date equal to the amount required to be withheld. In the case of Shares previously acquired 15 from the Company that are surrendered under this Section 11, such Shares must have been owned by the Participant for more than six months on the date of surrender (or such longer period of time the Company may in its discretion require). (e) Income Taxes and Deferred Compensation. Participants are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with Awards (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold any Participant harmless from any or all of such taxes. The Administrator shall have the discretion to organize any deferral program, to require deferral election forms, and to grant or to unilaterally modify any Award in a manner that (i) conforms with the requirements of Section 409A of the Code with respect to compensation that is deferred and that vests after December 31, 2004, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any valid second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C). The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and all Awards. 12. Non-Transferability of Awards (a) General. Except as set forth in this Section 12, or as otherwise approved by the Committee for a select group of management or highly compensated Employees, Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution. The designation of a beneficiary by a Participant will not constitute a transfer. An Award may be exercised, during the lifetime of the Participant issued an Award, only by such Participant, the duly-authorized legal representative of a disabled Participant, or a transferee permitted by this Section 12. (b) Limited Transferability Rights. Notwithstanding anything else in this Section 12, the Committee may in its discretion provide in an Award Agreement that the Award may be transferred by instrument to an inter vivos or testamentary trust (or other entity) in which the Award is to be passed to beneficiaries upon the death of the trustor (settlor), or by gift to charitable institutions, the Participant's "Immediate Family" (as defined below), on such terms and conditions as the Committee deems appropriate. "Immediate Family" means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, domestic partner, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships. 13. Adjustments Upon Changes in Capitalization, Merger or Certain Other Transactions (a) Changes in Capitalization. The Committee shall equitably adjust the number of Shares covered by each outstanding Award, and the number of Shares that have been authorized for issuance under the Plan but as to which no Awards have yet been granted or that have been 16 returned to the Plan upon cancellation, forfeiture, or expiration of an Award, as well as the price per Share covered by each such outstanding Award, to reflect any increase or decrease in the number of issued Shares resulting from a stock-split, reverse stock-split, stock dividend, combination, recapitalization or reclassification of the Shares, or any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company. In the event of any such transaction or event, the Committee may provide in substitution for any or all outstanding Options under the Plan such alternative consideration (including securities of any surviving entity) as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all Options so replaced. In any case, such substitution of securities shall not require the consent of any Person who is granted options pursuant to the Plan. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be required to be made with respect to, the number or price of Shares subject to any Award. (b) Dissolution or Liquidation. In the event of the dissolution or liquidation of the Company other than as part of a Change of Control, each Award will terminate immediately prior to the consummation of such action, subject to the discretion of the Committee to exercise any discretion authorized in the case of a Change in Control. (c) Change in Control. In the event of a Change in Control (or beforehand through an Award Agreement or modification of an Award Agreement), the Committee may in its sole and absolute discretion and authority, without obtaining the approval or consent of the Company's shareholders or any Participant (subject to the specific commitments made in any Award Agreement) with respect to his or her outstanding Awards, take one or more of the following actions: (i) arrange for or otherwise provide that each outstanding Award shall be assumed or a substantially similar award shall be substituted by a successor corporation or a parent or subsidiary of such successor corporation (the "Successor Corporation"); (ii) accelerate the vesting of Awards for any period that the Committee may authorize at the end of which the Committee may provide for termination of any unexercised Options or SARs, so that Awards shall vest (and, to the extent applicable, become exercisable) as to the Shares that otherwise would have been unvested and provide that repurchase rights of the Company, if any, with respect to Shares issued upon exercise of an Award shall lapse as to the Shares subject to such repurchase right; or (iii) arrange or otherwise provide for the payment of cash or other consideration to Participants in exchange for the satisfaction and cancellation of outstanding Awards. Notwithstanding the above, in the event a Participant holding an Award assumed or substituted by the Successor Corporation in a Change in Control is Involuntarily Terminated by the Successor Corporation in connection with, or within 12 months following consummation of, the Change in Control, then any assumed or substituted Award held by the terminated Participant at the time of termination shall accelerate and become fully vested (and exercisable in full in the 17 case of Options and SARs), and any repurchase right applicable to any Shares shall lapse in full. The acceleration of vesting and lapse of repurchase rights provided for in the previous sentence shall occur immediately prior to the effective date of the Participant's termination. (d) Certain Distributions. In the event of any distribution to the Company's shareholders of securities of any other entity or other assets (other than dividends payable in cash or stock of the Company) without receipt of consideration by the Company, the Committee may, in its discretion, appropriately adjust the price per Share covered by each outstanding Award to reflect the effect of such distribution. 14. Time of Granting Awards. The date of grant ("Grant Date") of an Award shall be the date on which the Committee makes the determination granting such Award or such other date as is determined by the Committee, provided that in the case of an ISO, the Grant Date shall be the later of the date on which the Committee makes the determination granting such ISO or the date of commencement of the Participant's employment relationship with the Company. 15. Modification of Awards and Substitution of Options. (a) Modification, Extension, and Renewal of Awards. Within the limitations of the Plan and any Award Agreement and subject to Section 11(e) above, the Committee may modify an Award (i) to accelerate the rate at which an Option or SAR may be exercised (including without limitation permitting an Option or SAR to be exercised in full without regard to the installment or vesting provisions of the applicable Award Agreement or whether the Option or SAR is at the time exercisable, to the extent it has not previously been exercised), (ii) to accelerate the vesting of any Award, (iii) to extend or renew outstanding Awards, or (iv) to accept the cancellation of outstanding Awards to the extent not previously exercised either for the granting of new Awards or for other consideration in substitution or replacement thereof. (b) Substitution of Options. Notwithstanding any inconsistent provisions or limits under the Plan, in the event the Company or an Affiliate acquires (whether by purchase, merger or otherwise) all or substantially all of outstanding capital stock or assets of another corporation or in the event of any reorganization or other transaction qualifying under Section 424 of the Code, the Committee may, in accordance with the provisions of that Section, substitute Options for options under the plan of the acquired company provided (i) the excess of the aggregate fair market value of the shares subject to an option immediately after the substitution over the aggregate option price of such shares is not more than the similar excess immediately before such substitution and (ii) the new Option does not give Persons additional benefits, including any extension of the exercise period. 16. Term of Plan. The Plan shall continue in effect for a term of ten (10) years from its effective date as determined under Section 20 below, unless the Plan is sooner terminated under Section 17 below. 18 17. Amendment and Termination of the Plan. (a) Authority to Amend or Terminate. Subject to Applicable Laws, the Board may from time to time amend, alter, suspend, discontinue, or terminate the Plan. (b) Effect of Amendment or Termination. No amendment, suspension, or termination of the Plan shall materially and adversely affect Awards already granted unless either it relates to an adjustment pursuant to Section 13 above, or it is otherwise mutually agreed between the Participant and the Committee, which agreement must be in writing and signed by the Participant and the Company. Notwithstanding the foregoing, the Committee may amend the Plan to eliminate provisions which are no longer necessary as a result of changes in tax or securities laws or regulations, or in the interpretation thereof. 18. Conditions Upon Issuance of Shares. Notwithstanding any other provision of the Plan or any agreement entered into by the Company pursuant to the Plan, the Company shall not be obligated, and shall have no liability for failure, to issue or deliver any Shares under the Plan unless such issuance or delivery would comply with Applicable Law, with such compliance determined by the Company in consultation with its legal counsel. 19. Reservation of Shares. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. 20. Effective Date. This Plan shall become effective on the date of its approval by the Board; provided that this Plan shall be submitted to the Company's shareholders for approval, and if not approved by the shareholders within one year from the date of approval by the Board, this Plan and any Awards shall be null, void, and of no force and effect. Awards granted under this Plan before approval of this Plan by the shareholders shall be granted subject to such approval and no Shares shall be distributed before such approval. 21. Controlling Law. All disputes relating to or arising from the Plan shall be governed by the internal substantive laws (and not the laws of conflicts of laws) of the State of New York, to the extent not preempted by United States federal law. If any provision of this Plan is held by a court of competent jurisdiction to be invalid and unenforceable, the remaining provisions shall continue to be fully effective. 22. Laws And Regulations. (a) U.S. Securities Laws. This Plan, the grant of Awards, and the exercise of Options and SARs under this Plan, and the obligation of the Company to sell or deliver any of its securities (including, without limitation, Options, Restricted Shares, Restricted Share Units, 19 Unrestricted Shares, Deferred Share Units, and Shares) under this Plan shall be subject to all Applicable Law. In the event that the Shares are not registered under the Securities Act of 1933, as amended (the "Act"), or any applicable state securities laws prior to the delivery of such Shares, the Company may require, as a condition to the issuance thereof, that the Persons to whom Shares are to be issued represent and warrant in writing to the Company that such Shares are being acquired by him or her for investment for his or her own account and not with a view to, for resale in connection with, or with an intent of participating directly or indirectly in, any distribution of such Shares within the meaning of the Act, and a legend to that effect may be placed on the certificates representing the Shares. (b) Other Jurisdictions. To facilitate the making of any grant of an Award under this Plan, the Committee may provide for such special terms for Awards to Participants who are foreign nationals or who are employed by the Company or any Affiliate outside of the United States of America as the Committee may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. The Company may adopt rules and procedures relating to the operation and administration of this Plan to accommodate the specific requirements of local laws and procedures of particular countries. Without limiting the foregoing, the Company is specifically authorized to adopt rules and procedures regarding the conversion of local currency, taxes, withholding procedures and handling of stock certificates which vary with the customs and requirements of particular countries. The Company may adopt sub-plans applicable to particular locations and countries. 23. Shareholder Rights. Except as otherwise provided in an Award Agreement, a Participant who receives an Award of Shares shall be reflected as the owner of record of the Shares on the Company's books and records, subject to meeting any requirements that the Company imposes in the Award Agreement (which may include delivering to the Company a stock power, endorsed in blank, with respect to the Shares subject to the Award) and subject to any forfeiture provisions in the Plan and the Award Agreement. As the owner of record of the Shares subject to an Award, a Participant shall be entitled to all rights of a shareholder of the Company, including the right to vote the Shares and the right to payment of any cash dividends or other distributions (including those paid in stock) declared or paid following the date of the Award (as set forth in the Award Agreement), and to the extent paid in stock, such stock shall be subject to the same restrictions on Shares contained in the Award Agreement, subject in each case to the treatment of the Award upon termination of employment before the particular record date for determining shareholders of record entitled to payment of the dividend or distribution. No adjustment will be made for a dividend or other right that is determined based on a record date prior to the date the stock certificate for Shares subject to an Award is issued, except as otherwise specifically provided for in this Plan. 24. No Employment Rights. The Plan shall not confer upon any Participant any right to continue an employment, service or consulting relationship with the Company, nor shall it affect in any way a Participant's right or the Company's right to terminate the Participant's employment, service, or consulting relationship at any time, with or without Cause. 20 CAPITAL TRUST, INC. 2004 LONG-TERM INCENTIVE PLAN ---------- Appendix A: Definitions ---------- As used in the Plan, the following definitions shall apply: "Affiliate" means, with respect to any Person (as defined below), any other Person that directly or indirectly controls or is controlled by or under common control with such Person. For the purposes of this definition, "control," when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person or the power to elect directors, whether through the ownership of voting securities, by contract or otherwise; and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. "Applicable Law" means the legal requirements relating to the administration of options and share-based plans under applicable U.S. federal and state laws, the Code, any applicable stock exchange or automated quotation system rules or regulations, and the applicable laws of any other country or jurisdiction where Awards are granted, as such laws, rules, regulations and requirements shall be in place from time to time. "Award" means any award made pursuant to the Plan, including awards made in the form of an Option, an SAR, a Restricted Share, an Unrestricted Share, a Restricted Share Unit, a Deferred Share Unit and a Performance Award, or any combination thereof, whether alternative or cumulative, authorized by and granted under this Plan. "Award Agreement" means any written document setting forth the terms of an Award that has been authorized by the Committee. The Committee shall determine the form or forms of documents to be used, and may change them from time to time for any reason. "Board" means the Board of Directors of the Company. "Cause" for termination of a Participant's Continuous Service will exist if the Participant is terminated from employment or other service with the Company or an Affiliate for any of the following reasons: (i) the Participant's conviction of a felony committed in connection with his or her employment or service with the Company, (ii) the Participant's willful and failure to substantially perform his or her duties and responsibilities to the Company or deliberate violation of a material Company policy; (iii) the Participant's commission of any material act or acts of fraud, embezzlement, dishonesty, or other willful misconduct; (v) the Participant's material unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or 21 her relationship with the Company; or (v) Participant's willful and material breach of any of his or her obligations under any written agreement or covenant with the Company. The Committee shall in its discretion determine whether or not a Participant is being terminated for Cause. The Committee's determination shall, unless arbitrary and capricious, be final and binding on the Participant, the Company, and all other affected Persons. The foregoing definition does not in any way limit the Company's ability to terminate a Participant's employment or consulting relationship at any time, and the term "Company" will be interpreted herein to include any Affiliate or successor thereto, if appropriate. "Change in Control" means any of the following: (a) Approval by the shareholders of the Company of the dissolution or liquidation of the Company; (b) Approval by the shareholders of the Company of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not Affiliates, as a result of which less than 50% of the outstanding voting securities of the surviving or resulting entity immediately after such transaction are, or will be, owned, directly or indirectly, by shareholders of the Company immediately before such transaction (assuming for purposes of such determination that there is no change in the record ownership of the Company's securities from the record date for such approval until such transaction and that such record owners hold no securities of the other parties to such reorganization), but including in such determination any securities of the other parties to such transaction held by Affiliates of the Company); (c) Approval by the shareholders of the Company of the sale of substantially all of the Company's business and/or assets to a Person or entity that is not an Affiliate of the Company; (d) Any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act but excluding any Person described in and satisfying the conditions of Rule 13d-1(b)(1) thereunder), other than a Person that is a shareholder of the Company on the Effective Date or a trustee or a fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries or an entity owned directly or indirectly by the shareholders of the Company in substantially the same proportion as their ownership of the stock of the Company, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 33% of the combined voting power of the Company's then outstanding securities entitled to then vote generally in the election of directors of the Company other than as a result of the acquisition of securities directly from the Company; or (e) During any period not longer than two consecutive years, individuals who at the beginning of such period constituted the Board cease to constitute at least a majority thereof, unless the election, or the nomination for election by the Company's shareholders, of each new Board member was approved by a vote of at least three-fourths of the Board members then still 22 in office who were Board members at the beginning of such period (including for these purposes, new members whose election or nomination was so approved). "Code" means the U.S. Internal Revenue Code of 1986, as amended. "Committee" means one or more committees or subcommittees of the Board appointed by the Board to administer the Plan in accordance with Section 4 above. With respect to any decision involving an Award intended to satisfy the requirements of Section 162(m) of the Code, the Committee shall consist solely of two or more Directors of the Company who are "outside directors" within the meaning of Section 162(m) of the Code. "Company" means Capital Trust, Inc., a Maryland corporation. "Consultant" means any natural person, including an advisor, who is engaged by the Company or any Affiliate to render services and is compensated for such services. "Continuous Service" means the absence of any interruption or termination of service as an Employee, Director, or Consultant. Continuous Service shall not be considered interrupted in the case of: (i) sick leave; (ii) military leave; (iii) any other leave of absence approved by the Committee, provided that such leave is for a period of not more than 90 days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time to time; (iv) changes in status from Director to advisory director or emeritus status; or (iv) in the case of transfers between locations of the Company or between the Company, its Affiliates or their respective successors. Changes in status between service as an Employee, Director, and a Consultant will not constitute an interruption of Continuous Service. "Deferred Share Units" mean Awards pursuant to Section 9 of the Plan. "Director" means a member of the Board, or a member of the board of directors of an Affiliate. "Disabled" means a Participant who (a) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (b) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, received income replacement benefits for a period of not less than 3 months under an accident or health plan covering employees of the Company. "Eligible Person" means any Consultant, Director or Employee and includes non-Employees to whom an offer of employment has been extended. "Employee" means any natural person whom the Company or any Affiliate classifies as an employee (including an officer) for employment tax purposes. The payment by the Company 23 of a director's fee to a Director shall not be sufficient to constitute "employment" of such Director by the Company. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Fair Market Value" means, as of any date (the "Determination Date") means: (i) the closing price of a Share on the New York Stock Exchange or the American Stock Exchange (collectively, the "Exchange"), on the Determination Date, or, if shares were not traded on the Determination Date, then on the nearest preceding trading day during which a sale occurred; or (ii) if such stock is not traded on the Exchange but is quoted on NASDAQ or a successor quotation system, (A) the last sales price (if the stock is then listed as a National Market Issue under The Nasdaq National Market System) or (B) the mean between the closing representative bid and asked prices (in all other cases) for the stock on the Determination Date as reported by NASDAQ or such successor quotation system; or (iii) if such stock is not traded on the Exchange or quoted on NASDAQ but is otherwise traded in the over-the-counter, the mean between the representative bid and asked prices on the Determination Date; or (iv) if subsections (i)-(iii) do not apply, the fair market value established in good faith by the Board. "Grant Date" has the meaning set forth in Section 14 of the Plan. "Incentive Share Option or ISO" hereinafter means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code, as designated in the applicable Award Agreement. "Involuntary Termination" means termination of a Participant's Continuous Service under the following circumstances occurring on or after a Change in Control: (i) termination without Cause by the Company or an Affiliate or successor thereto, as appropriate; or (ii) voluntary termination by the Participant within 60 days following (A) a material reduction in the Participant's job responsibilities, provided that neither a mere change in title alone nor reassignment to a substantially similar position shall constitute a material reduction in job responsibilities; (B) an involuntary relocation of the Participant's work site to a facility or location more than 50 miles from the Participant's principal work site at the time of the Change in Control; or (C) a material reduction in Participant's total compensation other than as part of an reduction by the same percentage amount in the compensation of all other similarly-situated Employees, Directors or Consultants. "Non-ISO" means an Option not intended to qualify as an ISO, as designated in the applicable Award Agreement. "Option" means any stock option granted pursuant to Section 6 of the Plan. "Participant" means any holder of one or more Awards, or the Shares issuable or issued upon exercise of such Awards, under the Plan. "Performance Awards" mean Performance Units and Performance Compensation Awards granted pursuant to Section 10. 24 "Performance Compensation Awards" mean Awards granted pursuant to Section 10(b) of the Plan. "Performance Unit" means Awards granted pursuant to Section 10(a) of the Plan which may be paid in cash, in Shares, or such combination of cash and Shares as the Committee in its sole discretion shall determine. "Person" means any natural person, association, trust, business trust, cooperative, corporation, general partnership, joint venture, joint-stock company, limited partnership, limited liability company, real estate investment trust, regulatory body, governmental agency or instrumentality, unincorporated organization or organizational entity. "Plan" means this Capital Trust, Inc. 2004 Long-term Incentive Plan. "Reporting Person" means an officer, Director, or greater than ten percent shareholder of the Company within the meaning of Rule 16a-2 under the Exchange Act, who is required to file reports pursuant to Rule 16a-3 under the Exchange Act. "Restricted Shares" mean Shares subject to restrictions imposed pursuant to Section 8 of the Plan. "Restricted Share Units" mean Awards designated as such pursuant to Section 8 of the Plan. "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act, as amended from time to time, or any successor provision. "SAR" or "Share Appreciation Right" means Awards granted pursuant to Section 7 of the Plan. "Share" means a share of class A common stock, par value $0.01 per share, of the Company, as adjusted or substituted in accordance with Section 13 of the Plan. "Ten Percent Holder" means a Person who owns stock representing more than ten percent (10%) of the combined voting power of all classes of stock of the Company or any Affiliate. "Unrestricted Shares" mean Awards designated as such pursuant to Section 8 of the Plan. 25 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN As approved by the Board of Directors on May 6, 2004 and by the shareholders on June 17, 2004 Amended and restated by the Board of Directors on December 31, 2004 EX-10 4 ex10-7.txt EX. 10.7 - FM OF AWD AG - PERFORM UNITS 2004 Exhibit 10.7 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------- Award Agreement granting Performance Units ------------------------------ Award No. ---- You, ______________ ("Participant"), an employee of Capital Trust, Inc. (the "Company") are hereby awarded Performance Units, subject to the terms and conditions set forth in this agreement (the "Award") and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan ("Plan"), which is attached hereto as Exhibit A. A summary of the Plan appears in its Prospectus, which is attached as Exhibit B. You should carefully review these documents, and consult with your personal financial advisor, in order to assure that you fully understand the terms, conditions, and financial implications of this Award. By executing this Award, you agree to be bound by all of the Plan's terms and conditions as if they had been set out verbatim in this Award. In addition, you recognize and agree that all determinations, interpretations, or other actions respecting the Plan and this Award will be made by the Board of Directors of the Company or the Committee that administers the Plan pursuant to Section 4 of the Plan, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including you and your successors in interest. Capitalized terms are defined in the Plan or in this Award. Preliminary Statement A. The Company has previously adopted a discretionary incentive compensation program for certain key employees that provides an opportunity to receive specified incentive compensation payments payable upon CT-F2's receipt of Carried Interest Distributions from Fund II. B. Participant was selected to receive the foregoing incentive compensation payments, and entered into an Incentive Compensation Agreement as of February 1, 2002 (the "2002 Agreement"), with CT Investment Management Co., LLC, a Delaware limited liability company and wholly owned subsidiary of the Company. C. Participant and the Company recognize and agree that it is substantially uncertain on the date hereof whether or not Participant will collect any incentive compensation pursuant to the 2002 Agreement, and accordingly agree that in consideration of the mutual benefits associated with this Award that the 2002 Agreement shall become null and void upon execution of this Award. NOW, THEREFORE, in consideration of and incorporating the foregoing recitals, the agreements herein contained, and for other good and valuable consideration, the parties hereto agree as follows: Terms 1. Defined Terms. For the purposes of this Award, in addition to the capitalized terms defined in the Plan and elsewhere in this Award, the following terms, when capitalized, shall have the meanings ascribed to them below, unless otherwise provided: (a) "Board of Directors" means the board of directors of the Company. (b) "Carried Interest Distribution" means any distribution of Net Distributable Cash of Fund II pursuant to Sections 6.1(b)(iii)(B) and 6.1(b)(iv)(B) of the Fund II Partnership Agreement received by CT-F2 from a distribution of the same made by Fund II GP to its members. (c) "Clawback Payments" means any payment made, directly or indirectly, by the Company on the account of any Over-Distribution pursuant to Section 14.2 of the Fund II Partnership Agreement. (d) "CT-F2" means CT-F2-GP, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company and a member of Fund II GP. (e) "Fund II" means CT Mezzanine Partners II LP, a Delaware limited partnership. (f) "Fund II Dissolution" means the completion of (i) the dissolution and liquidation of Fund II pursuant to Section 14.1 of the Fund II Partnership Agreement and (ii) the accounting and payment of any Over-Distribution pursuant to Section 14.2 of the Fund II Partnership Agreement. (g) "Fund II GP" means CT MP II LLC, a Delaware limited liability company and general partner of Fund II. (h) "Fund II Partnership Agreement" means the amended and restated agreement of limited partnership of Fund II, dated as of April 9, 2001, as heretofore and hereafter amended. (i) "Net Distributable Cash" shall have the meaning ascribed to such term in the Fund II Partnership Agreement. (j) "Over-Distribution" shall have the meaning ascribed to such term in the Fund II Partnership Agreement. 2. Payment of Incentive Compensation. (a) You have been granted a Performance Unit that provides for the payment of cash incentive compensation in accordance with the terms and conditions of this Section 2. (b) The Company agrees that, within 30 days of receipt of any Carried Interest Distribution, the Company shall pay the Cash Compensation (as defined below) due Participant under Section 2(c). (c) Participant shall receive as incentive compensation a cash amount ("Cash Compensation") equal to ____% (the "Specified Percentage") of the aggregate amount of Carried Interest Distributions, if any, received by CT-F2 prior to or upon the Fund II Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by the Company or CT-F2. If following the payment of any Cash Compensation to Participant, Clawback Payments that have not been deducted prior to such payment in accordance with the foregoing are paid by or on behalf of CT-F2, Participant agrees and undertakes to refund and pay to CT-F2 the portion of the Cash Compensation that would have not been earned and paid to Participant had the Clawback Payments been deducted from Carried Interest Distributions prior to the payment thereof to Participant. (d) All amounts of Cash Compensation due to Participant under Section 2(c) shall be subject to deduction by the Company for amounts required to be deducted or withheld under any provision of U.S. federal, state or local law (including but not limited to, social security payments, income tax withholding, and any other deduction required by law) currently in effect or which may hereafter become effective. 3. Not a Shareholder, Partner or Member. Participant shall not be deemed for any purposes under this Award to be a shareholder of the Company or a partner or member of Fund II, Fund II GP or CT-F2, and accordingly shall have no rights of ownership, voting, or other rights held by a stockholder with respect to the Company, nor any ownership, voting, or other rights held by a partner or member with respect to Fund II, Fund II GP or CT-F2. 4. No Other Rights. Participant has no rights to payments or other amounts unless and until they become payable pursuant to the terms of Section 2 and Participant acknowledges that the receipt of any Cash Compensation payment is contingent and not guaranteed. Any payments made pursuant to this Award are solely a cash incentive compensation and no interest in, or security of, the Company, Fund II, Fund II GP or CT-F2 or any right to participate in any aspect of the Company, Fund II, Fund II GP or CT-F2 is created by this Award. 5. No Employment Contract. This Award is not intended to, and does not, create an employment for a definite term. Subject to any employment agreement with the Company, Participant will continue to be an employee "at will" and either Participant or the Company can terminate Participant's employment with the Company for any reason at any time. 6. Complete Agreement. This Award sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby and supersedes all previous oral or written agreements (including the 2002 Agreement, which shall become null and void upon execution of this Award) between the parties regarding the subject matter hereof. 7. Binding Effect; No Transfer. Every covenant, term and provision of this Award shall be binding upon and inure to the benefit of the parties hereto and their respective beneficiaries, heirs, legatees, legal representatives, successors, transferees and assigns. Participant's rights to Cash Compensation under this Award may not be assigned, transferred, pledged or hypothecated in any manner, except as provided in Section 8, and any attempted assignment or transfer shall be null and void and shall extinguish, in the Committee's sole discretion, the obligation under the Award to make any Cash Compensation payments to Participant. 8. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award, Participant may expressly designate a beneficiary or beneficiaries who, in the event of Participant's death prior to full payment of any Cash Compensation payable hereunder, shall receive any payment of any Cash Compensation due under this Award after the date of such death. Such designation shall be made by Participant by completing and executing a designation of beneficiary form attached hereto as Exhibit C and delivering an executed copy thereof to the Company. Participant may, at any time, change or revoke such designation. A beneficiary designation, or revocation of a prior beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by Participant and received by the Company. If Participant does not designate a beneficiary or the beneficiary dies prior to having received all Cash Compensation payments due under this Award, such payments shall be paid to Participant's estate. 9. Waiver. Any term or provision of this Award may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party. 10. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: (a) if to the Company, at the address set forth on the signature page, to the attention of: Committee administering the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan; (b) if to you, at the address set forth below your signature on the signature page. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award. Any such notice shall be deemed to be given as of the date such notice is personally delivered or properly mailed. 11. Tax Effect including Code Section 162(m). This Award shall be subject to the following conditions: (a) This Award is being made pursuant to Section 10(b) of the Plan and is designated a Performance Compensation Award, and is intended to satisfy the requirements for "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and associated treasury regulations. (b) The Performance Period for this Award shall begin on the date hereof and shall end on the Fund II Dissolution, which shall not occur until after the last day of the fiscal year after the year in which this Award occurs. (c) The Performance Measure for this Award is the performance of Fund II, as allowed under Section 10(c)(ii) of the Plan. (d) The Performance Formula for this Award is set forth in Section 2 of this Award and is based on the aggregate amount of Carried Interest Distributions, if any, received by CT-F2 prior to or upon the Fund II Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by the Company or CT-F2. (e) The Committee shall accordingly have sole and absolute discretion to interpret this Award in any manner necessary or appropriate to secure and to accomplish the intended tax treatment described in Section 11(a), and may unilaterally amend, interpret, or modify this Award (prospectively or retroactively) in any manner directed toward that purpose. 12. Deferral Election. You may irrevocably elect to defer the receipt of all or a percentage of the Cash Compensation payable pursuant to the Performance Unit that would otherwise be paid to you following vesting of the right to such Cash Compensation under this Award if earned pursuant to the Performance Formula. A copy of the form which you may use to make a deferral election may be obtained from the Company. 13. Severability. If any of the provisions of this Award shall be found to be illegal or unenforceable for any reason or in any respect, the validity, legality, and enforceability of the remaining provisions of this Award shall not in any way be affected or impaired thereby. 14. Headings. Headings shall be ignored in interpreting this Award. 15. Governing Law. The laws of the State of New York shall govern the validity of this Award, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 16. Income Taxes and Deferral. You are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Award (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes. To the extent your Award is not deferred and vested before January 1, 2005, the Administrator shall have the discretion to unilaterally modify your Award in a manner that (i) conforms with the requirements of Section 409A of the Code, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and your Award. 17. Counterparts. This Award may be executed in separate counterparts, which shall collectively and separately be considered one and the same Award, and be deemed effective upon signature of the Company. IN WITNESS WHEREOF, the parties hereto have duly executed this Award as of _________, 200_. CAPITAL TRUST, INC. By: ______________________________ Name: Title: Chief Financial Officer Address: Capital Trust, Inc. 410 Park Avenue, 14 Floor New York, New York 10022 Fax.: 212-655-0044 [Name of Participant] __________________________________ Signature Address: __________________________________ __________________________________ Exhibit A CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN PROSPECTUS Exhibit C Designation of Beneficiary Form In connection with the Performance Compensation Award (the "Award") entered into as of ______________, 200_ between Capital Trust, Inc. (the "Company") and _______________, an individual residing at ______________________________________________ ("Participant"), Participant hereby designates the person specified below as the beneficiary of Participant's interest in cash incentive compensation due and payable pursuant to the Award. This designation shall remain in effect until revoked in writing by Participant. Name of Beneficiary: __________________________________ Address: __________________________________ __________________________________ Social Security No.: __________________________________ Participant understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award from the date this form is delivered to the Company until such date as this designation is revoked in writing by Participant, including by delivery to the Company of a written designation of beneficiary executed by Participant on a later date. Date: _______________________ By: _______________________ [Participant Signature] Sworn to before me this ____ day of ____________, 200_ ______________________________ Notary Public County of _______________ State of _____________________ EX-10 5 ex10-8.txt EX. 10.8 - FM OF AWD AG - PERFORM UNITS 2004 Exhibit 10.8 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------- Award Agreement granting Performance Units ------------------------------ Award No. ---- You, ______________ ("Participant"), an employee of Capital Trust, Inc. (the "Company") are hereby awarded Performance Units, subject to the terms and conditions set forth in this agreement (the "Award") and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan ("Plan"), which is attached hereto as Exhibit A. A summary of the Plan appears in its Prospectus, which is attached as Exhibit B. You should carefully review these documents, and consult with your personal financial advisor, in order to assure that you fully understand the terms, conditions, and financial implications of this Award. By executing this Award, you agree to be bound by all of the Plan's terms and conditions as if they had been set out verbatim in this Award. In addition, you recognize and agree that all determinations, interpretations, or other actions respecting the Plan and this Award will be made by the Board of Directors of the Company or the Committee that administers the Plan pursuant to Section 4 of the Plan, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including you and your successors in interest. Capitalized terms are defined in the Plan or in this Award. Preliminary Statement A. The Company has previously adopted a discretionary incentive compensation program for certain key employees that provides an opportunity to receive specified incentive compensation payments payable upon CT-F2's receipt of Carried Interest Distributions from Fund II. B. Participant was selected to receive the foregoing incentive compensation payments, and entered into an Incentive Compensation Agreement as of October 15, 2003 (the "2003 Agreement"), with CT Investment Management Co., LLC, a Delaware limited liability company and wholly owned subsidiary of the Company. C. Participant and the Company recognize and agree that it is substantially uncertain on the date hereof whether or not Participant will collect any incentive compensation pursuant to the 2003 Agreement, and accordingly agree that in consideration of the mutual benefits associated with this Award that the 2003 Agreement shall become null and void upon execution of this Award. NOW, THEREFORE, in consideration of and incorporating the foregoing recitals, the agreements herein contained, and for other good and valuable consideration, the parties hereto agree as follows: Terms 1. Defined Terms. For the purposes of this Award, in addition to the capitalized terms defined in the Plan and elsewhere in this Award, the following terms, when capitalized, shall have the meanings ascribed to them below, unless otherwise provided: (a) "Board of Directors" means the board of directors of the Company. (b) "Carried Interest Distribution" means any distribution of Net Distributable Cash of Fund II pursuant to Sections 6.1(b)(iii)(B) and 6.1(b)(iv)(B) of the Fund II Partnership Agreement received by CT-F2 from a distribution of the same made by Fund II GP to its members. (c) "Clawback Payments" means any payment made, directly or indirectly, by the Company on the account of any Over-Distribution pursuant to Section 14.2 of the Fund II Partnership Agreement. (d) "CT-F2" means CT-F2-GP, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company and a member of Fund II GP. (e) "Fund II" means CT Mezzanine Partners II LP, a Delaware limited partnership. (f) "Fund II Dissolution" means the completion of (i) the dissolution and liquidation of Fund II pursuant to Section 14.1 of the Fund II Partnership Agreement and (ii) the accounting and payment of any Over-Distribution pursuant to Section 14.2 of the Fund II Partnership Agreement. (g) "Fund II GP" means CT MP II LLC, a Delaware limited liability company and general partner of Fund II. (h) "Fund II Partnership Agreement" means the amended and restated agreement of limited partnership of Fund II, dated as of April 9, 2001, as heretofore and hereafter amended. (i) "Net Distributable Cash" shall have the meaning ascribed to such term in the Fund II Partnership Agreement. (j) "Over-Distribution" shall have the meaning ascribed to such term in the Fund II Partnership Agreement. 2. Payment of Incentive Compensation. (a) You have been granted a Performance Unit that provides for the payment of cash incentive compensation in accordance with the terms and conditions of this Section 2. (b) The Company agrees that, within 30 days of receipt of any Carried Interest Distribution, the Company shall pay the Cash Compensation (as defined below) due Participant under Section 2(c). (c) Subject to the vesting provisions of Section 2(d), Participant shall receive as incentive compensation a cash amount ("Cash Compensation") equal to ____% (the "Specified Percentage") of the aggregate amount of Carried Interest Distributions, if any, received by CT-F2 prior to or upon the Fund II Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by the Company or CT-F2. If following the payment of any Cash Compensation to Participant, Clawback Payments that have not been deducted prior to such payment in accordance with the foregoing are paid by or on behalf of CT-F2, Participant agrees and undertakes to refund and pay to CT-F2 the portion of the Cash Compensation that would have not been earned and paid to Participant had the Clawback Payments been deducted from Carried Interest Distributions prior to the payment thereof to Participant. (d) Participant's right to Cash Compensation payable pursuant to Section 2(c) shall vest and become binding upon the Company with respect to 50% of the Specified Percentage immediately on the date hereof and with respect to the remaining 50% of the Specified Percentage upon the date of first receipt of Carried Interest Distributions by CT-F2, provided the Participant is employed by the Company on such date. (e) All amounts of Cash Compensation due to Participant under Section 2(c) shall be subject to deduction by the Company for amounts required to be deducted or withheld under any provision of U.S. federal, state or local law (including but not limited to, social security payments, income tax withholding, and any other deduction required by law) currently in effect or which may hereafter become effective. 3. Not a Shareholder, Partner or Member. Participant shall not be deemed for any purposes under this Award to be a shareholder of the Company or a partner or member of Fund II, Fund II GP or CT-F2, and accordingly shall have no rights of ownership, voting, or other rights held by a stockholder with respect to the Company, nor any ownership, voting, or other rights held by a partner or member with respect to Fund II, Fund II GP or CT-F2. 4. No Other Rights. Participant has no rights to payments or other amounts unless and until they become payable pursuant to the terms of Section 2 and Participant acknowledges that the receipt of any Cash Compensation payment is contingent and not guaranteed. Any payments made pursuant to this Award are solely a cash incentive compensation and no interest in, or security of, the Company, Fund II, Fund II GP or CT-F2 or any right to participate in any aspect of the Company, Fund II, Fund II GP or CT-F2 is created by this Award. 5. No Employment Contract. This Award is not intended to, and does not, create an employment for a definite term. Subject to any employment agreement with the Company, Participant will continue to be an employee "at will" and either Participant or the Company can terminate Participant's employment with the Company for any reason at any time. 6. Complete Agreement. This Award sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby and supersedes all previous oral or written agreements (including the 2003 Agreement, which shall become null and void upon execution of this Award) between the parties regarding the subject matter hereof. 7. Binding Effect; No Transfer. Every covenant, term and provision of this Award shall be binding upon and inure to the benefit of the parties hereto and their respective beneficiaries, heirs, legatees, legal representatives, successors, transferees and assigns. Participant's rights to Cash Compensation under this Award may not be assigned, transferred, pledged or hypothecated in any manner, except as provided in Section 8, and any attempted assignment or transfer shall be null and void and shall extinguish, in the Committee's sole discretion, the obligation under the Award to make any Cash Compensation payments to Participant. 8. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award, Participant may expressly designate a beneficiary or beneficiaries who, in the event of Participant's death prior to full payment of any Cash Compensation payable hereunder, shall receive any payment of any Cash Compensation due under this Award after the date of such death. Such designation shall be made by Participant by completing and executing a designation of beneficiary form attached hereto as Exhibit C and delivering an executed copy thereof to the Company. Participant may, at any time, change or revoke such designation. A beneficiary designation, or revocation of a prior beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by Participant and received by the Company. If Participant does not designate a beneficiary or the beneficiary dies prior to having received all Cash Compensation payments due under this Award, such payments shall be paid to Participant's estate. 9. Waiver. Any term or provision of this Award may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party. 10. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: (a) if to the Company, at the address set forth on the signature page, to the attention of: Committee administering the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan; (b) if to you, at the address set forth below your signature on the signature page. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award. Any such notice shall be deemed to be given as of the date such notice is personally delivered or properly mailed. 11. Tax Effect including Code Section 162(m). This Award shall be subject to the following conditions: (a) This Award is being made pursuant to Section 10(b) of the Plan and is designated a Performance Compensation Award, and is intended to satisfy the requirements for "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and associated treasury regulations. (b) The Performance Period for this Award shall begin on the date hereof and shall end on the Fund II Dissolution, which shall not occur until after the last day of the fiscal year after the year in which this Award occurs. (c) The Performance Measure for this Award is the performance of Fund II, as allowed under Section 10(c)(ii) of the Plan. (d) The Performance Formula for this Award is set forth in Section 2 of this Award and is based on the aggregate amount of Carried Interest Distributions, if any, received by CT-F2 prior to or upon the Fund II Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by the Company or CT-F2. (e) The Committee shall accordingly have sole and absolute discretion to interpret this Award in any manner necessary or appropriate to secure and to accomplish the intended tax treatment described in Section 11(a), and may unilaterally amend, interpret, or modify this Award (prospectively or retroactively) in any manner directed toward that purpose. 12. Deferral Election. You may irrevocably elect to defer the receipt of all or a percentage of the Cash Compensation payable pursuant to the Performance Unit that would otherwise be paid to you following vesting of the right to such Cash Compensation under this Award if earned pursuant to the Performance Formula. A copy of the form which you may use to make a deferral election may be obtained from the Company. 13. Severability. If any of the provisions of this Award shall be found to be illegal or unenforceable for any reason or in any respect, the validity, legality, and enforceability of the remaining provisions of this Award shall not in any way be affected or impaired thereby. 14. Headings. Headings shall be ignored in interpreting this Award. 15. Governing Law. The laws of the State of New York shall govern the validity of this Award, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 16. Income Taxes and Deferral. You are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Award (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes. To the extent your Award is not deferred and vested before January 1, 2005, the Administrator shall have the discretion to unilaterally modify your Award in a manner that (i) conforms with the requirements of Section 409A of the Code, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and your Award. 17. Counterparts. This Award may be executed in separate counterparts, which shall collectively and separately be considered one and the same Award, and be deemed effective upon signature of the Company. IN WITNESS WHEREOF, the parties hereto have duly executed this Award as of _________, 200_. CAPITAL TRUST, INC. By: ------------------------------ Name: Title: Chief Financial Officer Address: Capital Trust, Inc. 410 Park Avenue, 14 Floor New York, New York 10022 Fax.: 212-655-0044 [Name of Participant] ---------------------------------- Signature Address: ---------------------------------- ---------------------------------- Exhibit A CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN PROSPECTUS Exhibit C Designation of Beneficiary Form In connection with the Performance Compensation Award (the "Award") entered into as of ______________, 200_ between Capital Trust, Inc. (the "Company") and _______________, an individual residing at ______________________________________________ ("Participant"), Participant hereby designates the person specified below as the beneficiary of Participant's interest in cash incentive compensation due and payable pursuant to the Award. This designation shall remain in effect until revoked in writing by Participant. Name of Beneficiary: ---------------------------------- Address: ---------------------------------- ---------------------------------- Social Security No.: ---------------------------------- Participant understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award from the date this form is delivered to the Company until such date as this designation is revoked in writing by Participant, including by delivery to the Company of a written designation of beneficiary executed by Participant on a later date. Date: ----------------------- By: ----------------------- [Participant Signature] Sworn to before me this ____ day of ____________, 200_ ______________________________ Notary Public County of ____________________ State of _____________________ EX-10 6 ex10-9.txt EX. 10.9 - FM OF AWD AG - PERFORM UNITS 2004 Exhibit 10.9 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------- Award Agreement granting Performance Unit ------------------------------ Award No. ---- You, _____________ ("Participant"), an employee of Capital Trust, Inc. (the "Company") are hereby awarded a Performance Unit, subject to the terms and conditions set forth in this agreement (the "Award") and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan ("Plan"), which is attached hereto as Exhibit A. A summary of the Plan appears in its Prospectus, which is attached as Exhibit B. You should carefully review these documents, and consult with your personal financial advisor, in order to assure that you fully understand the terms, conditions, and financial implications of this Award. By executing this Award, you agree to be bound by all of the Plan's terms and conditions as if they had been set out verbatim in this Award. In addition, you recognize and agree that all determinations, interpretations, or other actions respecting the Plan and this Award will be made by the Board of Directors of the Company or the Committee that administers the Plan pursuant to Section 4 of the Plan, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including you and your successors in interest. Capitalized terms are defined in the Plan or in this Award. Preliminary Statement A. The Company has previously adopted a discretionary incentive compensation program for certain key employees that provides an opportunity to receive specified incentive compensation payments payable upon CTIMCO's receipt of Incentive Management Fees paid by Fund III. B. Participant was selected to receive the foregoing incentive compensation payment, and entered into an Incentive Compensation Agreement as of January 26, 2004 (the "2004 Agreement") with CTIMCO. C. Participant and the Company recognize and agree that it is substantially uncertain on the date hereof whether or not Participant will collect any incentive compensation pursuant to the 2004 Agreement, and accordingly agree that in consideration of the mutual benefits associated with this Award that the 2004 Agreement shall become null and void upon execution of this Award. NOW, THEREFORE, in consideration of and incorporating the foregoing recitals, the agreements herein contained, and for other good and valuable consideration, the parties hereto agree as follows: Terms 1. Defined Terms. For the purposes of this Award, in addition to the capitalized terms defined in the Plan and elsewhere in this Award, the following terms, when capitalized, shall have the meanings ascribed to them below, unless otherwise provided: (a) "Available Cash" shall have the meaning ascribed to such term in the Management Agreement. (b) "Board of Directors" means the board of directors of the Company. (c) "Clawback Payments" means any payment made, directly or indirectly, by CTIMCO on the account of any Over-Payment pursuant to Section 2.3 of the Management Agreement. (d) "CTIMCO" means CT Investment Management Co., LLC, a Delaware limited liability company. (e) "Fund III" means CT Mezzanine Partners III, Inc., a Maryland corporation. (f) "Fund III Dissolution" means the completion of (i) the dissolution and liquidation of Fund III pursuant to Article VIII of the Shareholders Agreement and (ii) the accounting and payment of any Over-Payment pursuant to Section 2.3 of the Management Agreement. (g) "Incentive Management Fees" means any distribution of Available Cash of Fund III pursuant to Section 2.2 of the Management Agreement received by CTIMCO. (h) "Investment Period" shall have the meaning ascribed to such term in the Shareholders Agreement. (i) "Management Agreement" means the second amended and restated management agreement, dated as of July 17, 2003, by and between Fund III and CTIMCO, as heretofore and hereafter amended. (j) "Over-Payment" shall have the meaning ascribed to such term in the Management Agreement. (k) "Shareholders Agreement" means the second amended and restated shareholders agreement of Fund III, dated as of July 17, 2003, by and among Fund III and the signatories thereto, as heretofore and hereafter amended. 2. Payment of Incentive Compensation. (a) You have been granted a Performance Unit that provides for the payment of cash incentive compensation in accordance with the terms and conditions of this Section 2. (b) The Company agrees that, within 30 days of receipt by CTIMCO of any Incentive Management Fees, the Company shall pay the Cash Compensation (as defined below) due Participant under Section 2(c). (c) Subject to the vesting provisions of Section 2(d), Participant shall receive as incentive compensation a cash amount equal to __% (the "Specified Percentage") of the aggregate amount of Incentive Management Fees, if any, specified in Section 2(d) received by CTIMCO prior to or upon the Fund III Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by CTIMCO ("Cash Compensation"). If following the payment of any Cash Compensation to Participant, Clawback Payments that have not been deducted prior to such payment in accordance with the foregoing are paid by or on behalf of CTIMCO, Participant agrees and undertakes to refund and pay to CTIMCO the portion of the Cash Compensation that would have not been earned and paid to Participant had the Clawback Payments been deducted from Incentive Management Fees prior to the payment thereof to Participant. (d) Participant's right to receive Cash Compensation payable pursuant to Section 2(c) shall vest with respect to 65% of the Specified Percentage upon the termination of Fund III's Investment Period, provided that Participant is employed by the Company on such date. Participant's right to receive Cash Compensation payable pursuant to Section 2(c) shall vest with respect to the remaining 35% of the Specified Percentage upon each date of receipt of Inventive Management Fees only with respect to the amount of Incentive Management Fees, in any, received by CTIMCO on each such date, provided that Participant is employed by the Company on such date. (e) All amounts of Cash Compensation due to Participant under Section 2(c) shall be subject to deduction by the Company for amounts required to be deducted or withheld under any provision of U.S. federal, state or local law (including but not limited to, social security payments, income tax withholding, and any other deduction required by law) currently in effect or which may hereafter become effective. 3. Not a Shareholder, Partner or Member. Participant shall not be deemed for any purposes under this Award to be a shareholder of the Company or Fund III or a member of CTIMCO, and accordingly shall have no rights of ownership, voting, or other rights held by a stockholder with respect to the Company or Fund III, nor any ownership, voting, or other rights held by a member with respect to CTIMCO. 4. No Other Rights. Participant has no rights to payments or other amounts unless and until they become payable pursuant to the terms of Section 2 and Participant acknowledges that the receipt of any Cash Compensation payment is contingent and not guaranteed. Any payments made pursuant to this Award are solely a cash incentive compensation and no interest in, or security of, the Company, Fund III or CTIMCO or any right to participate in any aspect of the Company, Fund III or CTIMCO is created by this Award. 5. No Employment Contract. This Award is not intended to, and does not, create an employment for a definite term. Subject to any employment agreement with the Company, Participant will continue to be an employee "at will" and either Participant or the Company can terminate Participant's employment with the Company for any reason at any time. 6. Complete Agreement. This Award sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby and supersedes all previous oral or written agreements (including the 2004 Agreement, which shall become null and void upon execution of this Award) between the parties regarding the subject matter hereof. 7. Binding Effect; No Transfer. Every covenant, term and provision of this Award shall be binding upon and inure to the benefit of the parties hereto and their respective beneficiaries, heirs, legatees, legal representatives, successors, transferees and assigns. Participant's rights to Cash Compensation under this Award may not be assigned, transferred, pledged or hypothecated in any manner, except as provided in Section 8, and any attempted assignment or transfer shall be null and void and shall extinguish, in the Committee's sole discretion, the obligation under the Award to make any Cash Compensation payments to Participant. 8. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award, Participant may expressly designate a beneficiary or beneficiaries who, in the event of Participant's death prior to full payment of any Cash Compensation payable hereunder, shall receive any payment of any Cash Compensation due under this Award after the date of such death. Such designation shall be made by Participant by completing and executing a designation of beneficiary form attached hereto as Exhibit C and delivering an executed copy thereof to the Company. Participant may, at any time, change or revoke such designation. A beneficiary designation, or revocation of a prior beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by Participant and received by the Company. If Participant does not designate a beneficiary or the beneficiary dies prior to having received all Cash Compensation payments due under this Award, such payments shall be paid to Participant's estate. 9. Waiver. Any term or provision of this Award may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party. 10. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: (a) if to the Company, at the address set forth on the signature page, to the attention of: Committee administering the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan; (b) if to you, at the address set forth below your signature on the signature page. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award. Any such notice shall be deemed to be given as of the date such notice is personally delivered or properly mailed. 11. Tax Effect including Code Section 162(m). This Award shall be subject to the following conditions: (a) This Award is being made pursuant to Section 10(b) of the Plan and is designated a Performance Compensation Award, and is intended to satisfy the requirements for "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and associated treasury regulations. (b) The Performance Period for this Award shall begin on the date hereof and shall end on the Fund III Dissolution, which shall not occur until after the last day of the fiscal year after the year in which this Award occurs. (c) The Performance Measure for this Award is the performance of Fund III, as allowed under Section 10(c)(ii) of the Plan. (d) The Performance Formula for this Award is set forth in Section 2 of this Award and is based on the aggregate amount of Incentive Management Fees, if any, received by CTIMCO prior to or upon the Fund III Dissolution after deduction for the aggregate amount of Clawback Payments, if any, paid or payable by CTIMCO. (e) The Committee shall accordingly have sole and absolute discretion to interpret this Award in any manner necessary or appropriate to secure and to accomplish the intended tax treatment described in Section 11(a), and may unilaterally amend, interpret, or modify this Award (prospectively or retroactively) in any manner directed toward that purpose. 12. Deferral Election. You may irrevocably elect to defer the receipt of all or a percentage of the Cash Compensation payable pursuant to the Performance Unit that would otherwise be paid to you following vesting of the right to such Cash Compensation under this Award if earned pursuant to the Performance Formula. A copy of the form which you may use to make a deferral election may be obtained from the Company. 13. Severability. If any of the provisions of this Award shall be found to be illegal or unenforceable for any reason or in any respect, the validity, legality, and enforceability of the remaining provisions of this Award shall not in any way be affected or impaired thereby. 14. Headings. Headings shall be ignored in interpreting this Award. 15. Governing Law. The laws of the State of New York shall govern the validity of this Award, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 16. Income Taxes and Deferral. You are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Award (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes. To the extent your Award is not deferred and vested before January 1, 2005, the Administrator shall have the discretion to unilaterally modify your Award in a manner that (i) conforms with the requirements of Section 409A of the Code, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and your Award. 17. Counterparts. This Award may be executed in separate counterparts, which shall collectively and separately be considered one and the same Award, and be deemed effective upon signature of the Company. IN WITNESS WHEREOF, the parties hereto have duly executed this Award as of ___, 200_. CAPITAL TRUST, INC. By: ------------------------------ Name: Title: Chief Financial Officer Address: Capital Trust, Inc. 410 Park Avenue, 14 Floor New York, New York 10022 Fax.: 212-655-0044 [PARTICIPANT] ---------------------------------- Signature Address: ---------------------------------- ---------------------------------- Exhibit A CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN PROSPECTUS Exhibit C Designation of Beneficiary Form In connection with the Performance Compensation Award (the "Award") entered into as of ___, 200_ between Capital Trust, Inc. (the "Company") and ___________, an individual residing at ________________ ("Participant"), Participant hereby designates the person specified below as the beneficiary of Participant's interest in cash incentive compensation due and payable pursuant to the Award. This designation shall remain in effect until revoked in writing by Participant. Name of Beneficiary: ---------------------------------- Address: ---------------------------------- ---------------------------------- Social Security No.: ---------------------------------- Participant understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award from the date this form is delivered to the Company until such date as this designation is revoked in writing by Participant, including by delivery to the Company of a written designation of beneficiary executed by Participant on a later date. Date: ----------------------- By: ----------------------- [Participant Signature] Sworn to before me this ____ day of ____________, 200_ ______________________________ Notary Public County of_____________________ State of______________________ EX-10 7 ex10-10.txt EX. 10.10 - FM OF STOCK OP AWD AG 2004 PLAN Exhibit 10.10 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------ Stock Option Award Agreement ------------------------------ Award No. ---- You (the "Participant") are hereby awarded the following stock option (the "Option") to purchase class A common stock of Capital Trust, Inc. ("the "Company"), subject to the terms and conditions set forth in this Stock Option Award Agreement (this "Award Agreement") and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), which is attached hereto as Exhibit A. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Plan. 1. Variable Terms. This Option shall be controlled by and interpreted according to the following terms, subject to the provisions of the Plan in all instances: Name of Participant: ---------------------------------- Type of Stock Option: |_| Incentive Stock Option (ISO)(1) |_| Non-Incentive Stock Option Number of Shares subject to Option: ---------------------------------- Option Exercise Price per Share: ---------------------------------- Date of Option Grant: ---------------------------------- Expiration Date: |_| ____ years after Date of Option Grant |_| 10 years after Date of Option Grant Vesting Schedule: (Establishes the Participant's rights to exercise this Option with respect to the Number of Shares stated above.) |_| ___% on Date of Option Grant. |_| ___% on each of the first __(#) annual (_quarterly/__monthly) anniversary dates of the Participant's Continuous Service after the Date of Option Grant. __________________________ 1 If an ISO is awarded to a person owning more than 10% of the voting power of all classes of stock of the Company or of any Subsidiary, then the term of the Option cannot exceed 5 years and the exercise price must be at least 110% of the Fair Market Value (100% for any other employee who is receiving ISO awards). |_| The Participant may exercise this Option before vesting occurs, in accordance with Section ___ of the Plan. 2. Term of Option. The term of the Option will expire at 5:00 p.m. (E.D.T. or E.S.T., as applicable) on the Expiration Date. 3. Manner of Exercise. The Option shall be exercised in the manner set forth in the Plan. The amount of Shares for which the Option may be exercised is cumulative; that is, if the Participant fails to exercise the Option for all of the Shares vested under the Option during any period set forth above, then any Shares subject to the Option that are not exercised during such period may be exercised during any subsequent period, until the expiration or termination of the Option pursuant to Sections 2 and 5 of this Award Agreement and the terms of the Plan. Fractional Shares may not be purchased. 4. Premature Disposition of an ISO. If the Participant sells or otherwise disposes of Shares acquired upon the exercise of an ISO within 1 year from the date such Shares were acquired or 2 years from the Date of Option Grant, the Participant agrees to deliver a written report to the Company within 10 days following the sale or other disposition of such Shares detailing the net proceeds of such sale or disposition. 5. Termination of Continuous Service. If the Participant's Continuous Service with the Company is terminated for any reason, this Option shall terminate on the date on which the Participant ceases to have any right to exercise the Option pursuant to the terms and conditions set forth in Section 6 of the Plan. 6. Subject to Plan. This Option is subject to all of the terms and conditions of the Plan, and by executing this Award Agreement, the Participant agrees to be bound by all of the Plan's terms and conditions as if it had been set out verbatim in this Award Agreement. In addition, the Participant recognizes and agrees that all determinations, interpretations or other actions respecting the Plan may be made by a majority of the Board or of the Committee in their sole and absolute discretion, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including the Participant, his or her heirs, and representatives. 7. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award Agreement, the Participant may expressly designate a beneficiary (the "Beneficiary") to his or her interest in (including the right to exercise) the Option awarded hereby. The Participant shall designate the Beneficiary by completing and executing a designation of beneficiary agreement substantially in the form attached hereto as Exhibit B (the "Designation of Beneficiary") and delivering an executed copy of the Designation of Beneficiary to the Company. The Participant may, at any time, change or revoke such designation. A Beneficiary designation, or revocation of a prior Beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by the Participant and received by the Company. If the Participant does not designate a Beneficiary or the Beneficiary dies prior to the exercise of the Option, the Participant's interest in (including the right to exercise) the Option shall become part of the Participant's estate. 8. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award Agreement shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: (a) if to the Company, at 410 Park Avenue, 14th Floor, New York, NY 10022, to the attention of: Committee administering the Amended and Restated 2004 Long-Term Incentive Plan; (b) if to the Participant, at the address set forth below his or her signature on the signature page hereto. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award Agreement. Any such notice shall be deemed to be delivered, given, and received for all purposes as of the date such notice is received or properly mailed. 9. Binding Effect. Every covenant, term, and provision of this Award Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legatees, legal representatives, successors, transferees, and assigns. 10. Modifications. This Award Agreement may be modified as follows: (i) to accelerate the rate at which this Award Agreement may be exercised (including without limitation permitting the Award Agreement to be exercised in full without regard to its installment or vesting provisions or to whether the Award Agreement is at the time exercisable, to the extent it has not previously been exercised, (ii) to accelerate the vesting of the Award Agreement, (iii) to extend or renew the Award Agreement, or (iv) to accept the cancellation of the Award Agreement to the extent not previously exercised either for the granting of a new Award Agreement or for other consideration in substitution or replacement hereof. 11. Headings. Headings shall be ignored in interpreting this Award Agreement. 12. Severability. Every provision of this Award Agreement and of the Plan is intended to be severable. If any term hereof is illegal or invalid for any reason, such illegality or invalidity shall not affect the validity or legality of the remaining terms of this Award Agreement. 13. Governing Law. The laws of the State of New York shall govern the validity of this Award Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award Agreement will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 14. Counterparts. This Award Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. BY YOUR SIGNATURE BELOW, along with the signature of the Company's representative, you and the Company agree that the Option is awarded under and governed by the terms and conditions of this Award Agreement and the Plan. CAPITAL TRUST, INC. By: ___________________________________________ A duly authorized Director or Officer The undersigned Participant hereby accepts the terms of this Award Agreement and the Plan. By: ___________________________________________ Name of Participant: ______________________ Address:___________________________________ ___________________________________________ Exhibit A --------- CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B --------- Designation of Beneficiary Form In connection with the STOCK OPTION AWARD AGREEMENT (the "Award Agreement") entered into on _______________, 200_ between Capital Trust, Inc. (the "Company") and _______________, an individual residing at _______________ (the "Participant"), the Participant hereby designates the person specified below as the beneficiary of the Participant's interest in (including the right to exercise) a stock option to purchase shares of class A common stock of the Company awarded pursuant to the Award Agreement. This designation shall remain in effect until revoked in writing by the Participant. Name of Beneficiary: ___________________________________ Address: ___________________________________ ___________________________________ ___________________________________ Social Security No.: ___________________________________ The Participant understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award Agreement from the date this form is delivered to the Company until such date as this designation is revoked in writing by the Participant, including by delivery to the Company of a written designation of beneficiary executed by the Participant on a later date. Date: ____________________________ By: ____________________________ [Participant Signature] Sworn to before me this ____ day of ____________, 200_ ______________________________ Notary Public County of ___________________ State of ___________________ EX-10 8 ex10-11.txt EX. 10.11 - FM OF REST SHARE AWD AG 2004 PLAN Exhibit 10.11 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------- Restricted Share Award Agreement ------------------------------ Award No. ------- You (the "Participant") are hereby awarded Restricted Shares subject to the terms and conditions set forth in this Restricted Share Award Agreement ("Award"), and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), which is attached as Exhibit A. A summary of the Plan appears in its Prospectus, which is attached as Exhibit B. You should carefully review these documents, and consult with your personal financial advisor, in order to assure that you fully understand the terms, conditions, and financial implications of this Award. By executing this Award, you agree to be bound by all of the Plan's terms and conditions as if they had been set out verbatim in this Award. In addition, you recognize and agree that all determinations, interpretations, or other actions respecting the Plan and this Award will be made by the Board of Directors of Capital Trust, Inc. (the "Board") or the Committee that administers the Plan pursuant to Section 4 of the Plan, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including you, your heirs, and representatives. Capitalized terms are defined in the Plan or in this Award. 1. Specific Terms. Your Restricted Shares have the following terms: - ------------------------------------------------------------------- Name of Participant - ------------------------------------------------------------------- Date of Award - ------------------------------------------------------------------- Number of Shares Subject to Award - ------------------------------------------------------------------- Purchase Price per Share (if applicable) - ------------------------------------------------------------------- Vesting - ------------------------------------------------------------------- Lifetime Transfer - ------------------------------------------------------------------- 2. Issuance of Shares. All Shares subject to this Award will be issued as of the Date of Award, but the stock certificates evidencing the Shares will bear the following legend that shall remain in place and effective until all vesting restrictions lapse and new certificates are issued pursuant to Section 4 below: "The sale or other transfer of the Shares represented by this certificate, whether voluntary, involuntary, or by operation of law, is subject to certain restrictions on Restricted Share Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 2 transfer set forth in the Amended and Restated 2004 Long-Term Incentive Plan of Capital Trust, Inc., in the rules and administrative procedures adopted pursuant to such Plan, and in a related Award Agreement. A copy of the Plan, such rules and procedures and such Award Agreement may be obtained from the Secretary of Capital Trust, Inc." 3. Unvested Shares. You are reflected as the owner of record of the Shares subject to this Award on the Company's books and records. The Company will hold the stock certificate for safekeeping until the Shares subject to this Award become vested and nonforfeitable. You must deliver to the Company, as soon as practicable after the Date of Award, a stock power, endorsed in blank, with respect to the Shares subject to this Award. If you forfeit any Shares subject to this Award, the stock power will be used to return the certificates for the forfeited Shares to the Company's transfer agent for cancellation. As the owner of record of the Shares subject to this Award, you are entitled to all rights of a stockholder of the Company, including the right to vote the Shares and the right to payment of any cash dividends or other distributions (including those paid in stock) declared or paid following the Date of Award and to the extent paid in stock, such stock shall be subject to the same restrictions contained in Section 2, subject in each case to the treatment of the Award upon termination of employment before the particular record date for determining shareholders of record entitled to payment of the dividend or distribution. 4. Lapse of Vesting Restrictions. As vesting restrictions lapse and you are entitled to receive the Shares so vested, the Company shall cause new stock certificates for such Shares to be delivered to you, with such legends that the Company determines to be appropriate. New certificates shall not be delivered to you unless you have made arrangements satisfactory to the Committee to satisfy tax-withholding obligations. 5. Section 83(b) Election Notice. If you make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, with respect to the Shares underlying your Restricted Shares (a "Section 83(b) election"), you agree to provide a copy of such election to the Company within 10 days after filing that election with the Internal Revenue Service. Exhibit C contains a suggested form of Section 83(b) election. 6. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award, you may expressly designate a beneficiary (the "Beneficiary") to your interest, if any, in the Restricted Shares awarded hereby. You shall designate the Beneficiary by completing and executing a designation of beneficiary agreement substantially in the form attached hereto as Exhibit D (the "Designation of Beneficiary") and delivering an executed copy of the Designation of Beneficiary to the Company. You may, at any time, change or revoke such designation. A Beneficiary designation, or revocation of a prior Beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by you and received by the Company. If you do not designate a Beneficiary or the Beneficiary dies prior to having received all Shares due under the Award, such Shares shall be paid to your estate. 7. Deferral Election. You may irrevocably elect to defer the receipt of all or a percentage of the Shares that would otherwise be issued to you on the vesting of this Award. A copy of the form which you may use to make a deferral election may be obtained from the Company. Restricted Share Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 3 Notwithstanding the foregoing, Shares which have been subject to a Section 83(b) election are not eligible for deferral. 8. Transfer. This Award may not be sold, pledged, or otherwise transferred without the prior written consent of the Committee. 9. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: (a) if to the Company, at the address set forth on the signature page, to the attention of: Committee administering the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan; or (b) if to you, at the address set forth below your signature on the signature page. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award. Any such notice shall be deemed to be given as of the date such notice is personally delivered or properly mailed. 10. Binding Effect. Except as otherwise provided in this Award or in the Plan, every covenant, term, and provision of this Award shall be binding upon and inure to the benefit of the parties hereto and their respective beneficiaries, heirs, legatees, legal representatives, successors, transferees, and assigns. 11. Modifications. This Award may be modified or amended at any time by the Committee, provided that your consent must be obtained for any modification that adversely alters or impairs any rights or obligations under this Award, unless there is an express Plan provision permitting the Committee to act unilaterally to make the modification. 12. Headings. Headings shall be ignored in interpreting this Award. 13. Not a Contract of Employment. By executing this Award, you acknowledge and agree that (i) any person who is terminated before full vesting of an award, such as the one granted to you by this Award, could claim that he or she was terminated to preclude vesting; (ii) you promise never to make such a claim; (iii) nothing in this Award or the Plan confers on you any right to continue an employment, service or consulting relationship with the Company, nor shall it affect in any way your right or the Company's right to terminate your employment, service, or consulting relationship at any time, with or without Cause; and (iv) the Company would not have granted this Award to you but for these acknowledgements and agreements. You also acknowledge that your rights upon a termination of employment with respect to this Award will be determined in accordance with Section 8(b) of the Plan. 14. Severability. Subject to one exception, every provision of this Award and the Plan is intended to be severable, and if any provision of the Plan or this Award is held by a court of competent jurisdiction to be invalid and unenforceable, the remaining provisions shall continue to Restricted Share Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 4 be fully effective. The only exception is that this Award shall be unenforceable if any provision of the preceding section is illegal, invalid, or unenforceable. 15. Governing Law. The laws of the State of New York shall govern the validity of this Award, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 16. Income Taxes and Deferral. You are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Award (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes. To the extent your Award is not deferred and vested before January 1, 2005, the Administrator shall have the discretion to unilaterally modify your Award in a manner that (i) conforms with the requirements of Section 409A of the Code, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and your Award. 17. Counterparts. This Award may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute the same instrument. [SIGNATURE PAGE FOLLOWS] Restricted Share Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 5 BY YOUR SIGNATURE BELOW, along with the signature of the Company's representative, you and the Company agree that the Restricted Shares are awarded under and governed by the terms and conditions of this Award and the Plan. CAPITAL TRUST, INC. By: _____________________________________ A duly authorized Director or Officer Address: 410 Park Avenue 14th Floor New York, NY 10022 The undersigned hereby accepts the terms of this Award and the Plan. ____________________________________________ Address: ________________________________ ________________________________ CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit A --------- Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B --------- Prospectus CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit C --------- Section 83(b) Election Form Attached is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION 83(B) ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES COVERED BY THE ELECTION WERE TRANSFERRED TO YOU. In order to make the election, you must completely fill out the attached form and file one copy with the Internal Revenue Service office where you file your tax return. In addition, one copy of the statement also must be submitted with your income tax return for the taxable year in which you make this election. Finally, you also must submit a copy of the election form to the Company within 10 days after filing that election with the Internal Revenue Service. A Section 83(b) election normally cannot be revoked. CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------------------------------------- Election to Include Value of Restricted Shares in Gross Income in Year of Transfer Under Internal Revenue Code Section 83(b) ------------------------------------------------------------- Pursuant to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days after receiving the property described herein to be taxed immediately on its value specified in item 5 below. 1. My General Information: Name: __________________________________ Address: __________________________________ __________________________________ S.S.N. or T.I.N.: ____________________________ 2. Description of the property with respect to which I am making this election: ____________________ shares of ___________ stock of Capital Trust, Inc. (the "Restricted Shares"). 3. The Restricted Shares were transferred to me on ______________ ___, 20__. This election relates to the 20____ calendar taxable year. 4. The Restricted Shares are subject to the following restrictions: The Restricted Shares are forfeitable until they are earned in accordance with Section 8 of the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan ("Plan"), the Restricted Shares Award Agreement ("Award"), or other award agreement or Plan provisions. The Restricted Shares generally are not transferable until my interest becomes vested and nonforfeitable, pursuant to the Award and the Plan. 5. Fair market value: The fair market value at the time of transfer (determined without regard to any restrictions other than restrictions which by their terms never will lapse) of the Restricted Shares with respect to which I am making this election is $_____ per share. 6. Amount paid for Restricted Shares: The amount I paid for the Restricted Shares is $____ per share. 7. Furnishing statement to employer: A copy of this statement has been furnished to my employer, ___________________. If the transferor of the Restricted Shares is not my employer, that entity also has been furnished with a copy of this statement. 8. Award or Plan not affected: Nothing contained herein shall be held to change any of the terms or conditions of the Award or the Plan. Dated: ____________ __, 20__. ----------------------------- Taxpayer CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit D --------- Designation of Beneficiary Form In connection with the RESTRICTED SHARE AWARD AGREEMENT (the "Award") entered into on _____________ ___, 20__ between Capital Trust, Inc. (the "Company") and _______________, an individual residing at ___________________ (the "Recipient"), the Recipient hereby designates the person specified below as the beneficiary of the Recipient's interest in Restricted Shares (as defined in the Company's Amended and Restated 2004 Long-Term Incentive Plan) awarded pursuant to the Award. This designation shall remain in effect until revoked in writing by the Recipient. Name of Beneficiary: _________________________________ Address: _________________________________ _________________________________ _________________________________ Social Security No.: _________________________________ The Recipient understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award from the date this form is delivered to the Company until such date as this designation is revoked in writing by the Recipient, including by delivery to the Company of a written designation of beneficiary executed by the Recipient on a later date. Date: _________________________________ By: _________________________________ [Recipient Signature] Sworn to before me this ____ day of ____________, 20__ ______________________________ Notary Public County of ___________________ State of ___________________ EX-10 9 ex10-12.txt EX.10.12 - D&D ELEC FM RESTR SH AWD AG 2004 PLAN Exhibit 10.12 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Deferral and Distribution Election Form Attached is the form you may use if you wish to defer the receipt of all or a percentage of the Shares that would otherwise be issued to you from the vesting of your Award. You must submit a copy of the Deferral and Distribution Election Form executed by you to the Company as provided for in the form. An election to defer receipt of your Shares may not be revoked. You are advised to consult with your individual tax advisor with respect to the tax consequences related to your Award and any elections you may make to defer the receipt of Shares. CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN -------------------------------- Deferral and Distribution Election Form -------------------------------- AGREEMENT, made this __ day of ________, 20__, by and between me, as a participant in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), and Capital Trust, Inc. (the "Company"). This Agreement shall control the distribution of any of the Company's shares (the "Shares") that I become entitled to receive pursuant to my Restricted Share Award Agreement dated __________ ___, 20__ (the "Award"). We agree that any term that begins herein with initial capital letters shall have the special meaning defined in the Plan, unless the context clearly requires otherwise. 1. Deferral Election. Pursuant to Section 7 of the Award, I hereby irrevocably elect to defer the receipt of _____% of the Shares that would otherwise be issued to me at any time or from time to time pursuant to the Award. I recognize and agree that I must surrender any Restricted Shares that may have been issued to me, and that the Company will establish an Account for me under the Plan, and will credit that Account with Deferred Share Units pursuant to Section 9 of the Plan. 2. Nature of Distribution. I recognize that distributions from my Account will be made in the form of one Share for each Deferred Share Unit credited to my Account. 3. Timing of Distributions. I hereby elect to commence receiving distributions from my Account on the following date: |_| on the first date that is 6 months after termination of my Continuous Service. |_| on the January 1st that next follows the date that is ___ (not more than 10) years following the termination of my Continuous Service. |_| on _________ ___, ____ (which is not later than my 70th birthday and not earlier than 6 months after and not later than 10 years after the termination of my Continuous Service). |_| on the date of a Change in Control of the Company, to the extent allowable under applicable Treasury Regulations under Section 409A of the Code. 4. Manner of Distribution. I hereby elect to have my Account distributed in the following manner: |_| in a single lump sum. |_| in substantially equal annual installments over a period of ___ years (not to exceed 10 years following termination of my Continuous Service). 5. Form of Payment to Beneficiary. In the event of my death before collecting all of my Account, any remaining portion of my Account shall be distributed to my beneficiary or beneficiaries named below in the following manner-- |_| in a single lump sum to be distributed on the first date that is 6 months after my death. |_| in accordance with the payment schedule selected in paragraphs 3 and 4 hereof (with payments made as though I survived to collect all benefits, and as though I terminated service on the date of my death if payments had not already begun). 6. Designation of Beneficiary. In the event of my death before I have collected all of my Account, I hereby direct that my beneficiaries shall be as follows: a. Primary Beneficiary. I hereby designate the person(s) named below to be my primary beneficiary and to receive the balance of any unpaid portion of my Account. ======================================================================== Name of Social Security Mailing Address Percentage of Primary Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== b. Contingent Beneficiary. In the event that a primary beneficiary or beneficiaries named above are not living at the time of my death, I hereby designate the following person(s) to be my contingent beneficiary for purposes of the Plan: ======================================================================== Name of Social Security Mailing Address Percentage of Contingent Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== 7. Effect of Election. The elections made in paragraphs 1, 3, and 4 hereof shall be irrevocable. I recognize, however, that I may, by submitting an effective superseding election, at any time and from time to time prospectively change the beneficiary designation and the manner of payment to a Beneficiary. Such elections shall, however, become irrevocable upon my death. 8. Satisfaction of Award Commitments. The parties recognize and agree that the Company will have fully honored and discharged its obligations under this Agreement, the Award, and the Plan if the Company distributes my Account in accordance with the provisions hereof. CAPITAL TRUST, INC. PARTICIPANT By _____________________________________ ___________________________________ A duly authorized officer or director Date: __________________________________ Date: _____________________________ EX-10 10 ex10-13.txt EX. 10.13 - FM OF RESTR SH UNIT AWD AG 2004 PLAN Exhibit 10.13 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN ------------------------------- Restricted Share Unit Award Agreement ------------------------------ Award No. ---- You (the "Participant") are hereby awarded Restricted Share Units subject to the terms and conditions set forth in this Restricted Share Unit Award Agreement ("Award") and in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), which is attached as Exhibit A. A summary of the Plan appears in its Prospectus, which is attached as Exhibit B. You should carefully review these documents, and consult with your personal financial advisor, in order to assure that you fully understand the terms, conditions, and financial implications of this Award. By executing this Award, you agree to be bound by all of the Plan's terms and conditions as if they had been set out verbatim in this Award. In addition, you recognize and agree that all determinations, interpretations, or other actions respecting the Plan and this Award will be made by the Board of Directors of Capital Trust, Inc. (the "Board") or the Committee that administers the Plan pursuant to Section 4 of the Plan, and that such determinations, interpretations or other actions are (unless arbitrary and capricious) final, conclusive and binding upon all parties, including you, your heirs, and representatives. Capitalized terms are defined in the Plan or in this Award. 1. Specific Terms. Your Restricted Share Units have the following terms: - ------------------------------------------------------------------- Name of Participant - ------------------------------------------------------------------- Date of Award - ------------------------------------------------------------------- Number of Restricted Share Units Subject to Award - ------------------------------------------------------------------- Vesting - ------------------------------------------------------------------- Lifetime Transfer - ------------------------------------------------------------------- 2. Satisfaction of Vesting Restrictions. No Shares will be issued before you complete the requirements that are necessary for you to vest in the Shares underlying your Restricted Share Units. As soon as practicable after the date on which your Award vests in whole or in part, the Company will issue to you or your duly-authorized transferee, one Share for each vested Restricted Share Unit. The Company shall cause stock certificates for such Shares to be delivered to you, with such legends that the Company determines to be appropriate. Certificates shall not be delivered to you unless you have made arrangements satisfactory to the Committee to satisfy tax-withholding obligations. Fractional shares will not be issued, and cash will be paid in lieu thereof. 3. Dividends. When Shares are issued to you or your duly-authorized transferee pursuant to the vesting of the Shares underlying your Restricted Share Units, you or your duly- Restricted Share Unit Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-term Incentive Plan Page 2 authorized transferee shall also be entitled to receive, with respect to each Share issued, an amount equal to any cash dividends (plus simple interest at a rate of five percent per annum, or such other reasonable rate as the Committee may determine) and a number of Shares equal to any stock dividends, which were declared and paid to the holders of Shares between the Grant Date and the date such Share is issued. 4. Voting. With respect to the Shares to be issued pursuant to this Award, you may not exercise voting rights until you become the record owner of the Shares. 5. Section 83(b) Election Notice. If you provide the Company with prior written notice of your intention to make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, with respect to the Shares underlying your Restricted Share Units (a "Section 83(b) election"), the Committee may in its discretion convert your Restricted Share Units into Restricted Shares, on a one-for-one basis, in full satisfaction of your Restricted Share Unit Award. You agree to provide a copy of such election to the Company within 10 days after filing that election with the Internal Revenue Service. Exhibit C contains a suggested form of Section 83(b) election. Any Restricted Shares issued to you pursuant to this Section 5 shall bear such legends as the Company determines to be appropriate until all vesting restrictions lapse and certificates are issued to you pursuant to Section 2 of this Award. 6. Deferral Election. You may irrevocably elect to defer the receipt of all or a percentage of the Shares that would otherwise be issued to you on the vesting of this Award. A copy of the form which you may use to make a deferral election may be obtained from the Company. Notwithstanding the foregoing, Shares which have been subject to a Section 83(b) election are not eligible for deferral. 7. Designation of Beneficiary. Notwithstanding anything to the contrary contained herein or in the Plan, following the execution of this Award, you may expressly designate a beneficiary (the "Beneficiary") to your interest, if any, in the Restricted Share Units awarded hereby. You shall designate the Beneficiary by completing and executing a designation of beneficiary agreement substantially in the form attached hereto as Exhibit D (the "Designation of Beneficiary") and delivering an executed copy of the Designation of Beneficiary to the Company. You may, at any time, change or revoke such designation. A Beneficiary designation, or revocation of a prior Beneficiary designation, shall be effective only if it is made in writing on a form provided by the Company, signed by you and received by the Company. If you do not designate a Beneficiary or the Beneficiary dies prior to having received all Shares due under the Award, such Shares shall be paid to your estate. 8. Transfer. This Award may not be sold, pledged, or otherwise transferred without the prior written consent of the Committee. 9. Notices. Any notice, payment or communication required or permitted to be given by any provision of this Award shall be in writing and shall be delivered personally or sent by certified mail, return receipt requested, addressed as follows: 2 Restricted Share Unit Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-term Incentive Plan Page 3 (a) if to the Company, at the address set forth on the signature page, to the attention of: Committee administering the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan; or (b) if to you, at the address set forth below your signature on the signature page. Each party may, from time to time, by notice to the other party hereto, specify a new address for delivery of notices relating to this Award. Any such notice shall be deemed to be given as of the date such notice is personally delivered or properly mailed. 10. Binding Effect. Except as otherwise provided in this Award or in the Plan, every covenant, term, and provision of this Award shall be binding upon and inure to the benefit of the parties hereto and their respective beneficiaries, heirs, legatees, legal representatives, successors, transferees, and assigns. 11. Modifications. This Award may be modified or amended at any time by the Committee, provided that your consent must be obtained for any modification that adversely alters or impairs any rights or obligations under this Award, unless there is an express Plan provision permitting the Committee to act unilaterally to make the modification. 12. Headings. Headings shall be ignored in interpreting this Award. 13. Not a Contract of Employment. By executing this Award, you acknowledge and agree that (i) any person who is terminated before full vesting of an award, such as the one granted to you by this Award, could claim that he or she was terminated to preclude vesting; (ii) you promise never to make such a claim; (iii) nothing in this Award or the Plan confers on you any right to continue an employment, service or consulting relationship with the Company, nor shall it affect in any way your right or the Company's right to terminate your employment, service, or consulting relationship at any time, with or without Cause; and (iv) the Company would not have granted this Award to you but for these acknowledgements and agreements. You also acknowledge that your rights upon a termination of employment with respect to this Award will be determined in accordance with Section 8(b) of the Plan. 14. Severability. Subject to one exception, every provision of this Award and the Plan is intended to be severable, and if any provision of the Plan or this Award is held by a court of competent jurisdiction to be invalid and unenforceable, the remaining provisions shall continue to be fully effective. The only exception is that this Award shall be unenforceable if any provision of the preceding section is illegal, invalid, or unenforceable. 15. Governing Law. The laws of the State of New York shall govern the validity of this Award, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. Any suit with respect to the Award will be brought in the federal or state courts in the districts which include New York City, New York, and you agree and submit to the personal jurisdiction and venue thereof. 3 Restricted Share Unit Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-term Incentive Plan Page 4 16. Income Taxes and Deferral. You are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Award (including any taxes arising under Section 409A of the Code), and the Company shall not have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes. To the extent your Award is not deferred and vested before January 1, 2005, the Administrator shall have the discretion to unilaterally modify your Award in a manner that (i) conforms with the requirements of Section 409A of the Code, (ii) that voids any Participant election to the extent it would violate Section 409A of the Code, and (iii) for any distribution election that would violate Section 409A of the Code, to make distributions pursuant to the Award at the earliest to occur of a distribution event that is allowable under Section 409A of the Code or any distribution event that is both allowable under Section 409A of the Code and is elected by the Participant, subject to any second election to defer, provided that the Administrator permits second elections to defer in accordance with Section 409A(a)(4)(C) of the Code. The Administrator shall have the sole discretion to interpret the requirements of the Code, including Section 409A, for purposes of the Plan and your Award. 17. Counterparts. This Award may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute the same instrument. [SIGNATURE PAGE FOLLOWS] 4 Restricted Share Unit Award Agreement Capital Trust, Inc. Amended and Restated 2004 Long-term Incentive Plan Page 5 BY YOUR SIGNATURE BELOW, along with the signature of the Company's representative, you and the Company agree that the Restricted Share Units are awarded under and governed by the terms and conditions of this Award and the Plan. CAPITAL TRUST, INC. By: --------------------------------------- A duly authorized Director or Officer Address: 410 Park Avenue 14th Floor New York, NY 10022 The undersigned hereby accepts the terms of this Award and the Plan. ------------------------------------------- Address: ----------------------------- ----------------------------- 5 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit A --------- Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit B --------- Prospectus CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit C --------- Section 83(b) Election Form Attached is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION 83(B) ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES COVERED BY THE ELECTION WERE TRANSFERRED TO YOU. In order to make the election, you must completely fill out the attached form and file one copy with the Internal Revenue Service office where you file your tax return. In addition, one copy of the statement also must be submitted with your income tax return for the taxable year in which you make this election. Finally, you also must submit a copy of the election form to the Company within 10 days after filing that election with the Internal Revenue Service. A Section 83(b) election normally cannot be revoked. CAPITAL TRUST, INC. -------------------------------------------------------------- Election to Include Value of Restricted Shares in Gross Income in Year of Transfer Under Internal Revenue Code Section 83(b) --------------------------------------------------------------- Pursuant to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days after receiving the property described herein to be taxed immediately on its value specified in item 5 below. 1. My General Information: Name: __________________________________ Address: __________________________________ __________________________________ S.S.N. or T.I.N.: __________________________ 2. Description of the property with respect to which I am making this election: ____________________ shares of ___________ stock of Capital Trust, Inc. (the "Restricted Shares"). 3. The Restricted Shares were transferred to me on ______________ ___, 20__. This election relates to the 20____ calendar taxable year. 4. The Restricted Shares are subject to the following restrictions: The Restricted Shares are forfeitable until they are earned in accordance with Sections 1, 4, and 5 of the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan ("Plan"), Restricted Share Unit Award Agreement ("Award"), or other award agreement or Plan provisions. The Restricted Shares generally are not transferable until my interest becomes vested and nonforfeitable, pursuant to the Award and the Plan. 5. Fair market value: The fair market value at the time of transfer (determined without regard to any restrictions other then restrictions which by their terms never will lapse) of the Restricted Shares with respect to which I am making this election is $_____ per share. 6. Amount paid for Restricted Shares: The amount I paid for the Restricted Shares is $____ per share. 7. Furnishing statement to employer: A copy of this statement has been furnished to my employer, ___________________. If the transferor of the Restricted Shares is not my employer, that entity also has been furnished with a copy of this statement. 8. Award or Plan not affected: Nothing contained herein shall be held to change any of the terms or conditions of the Award or the Plan. Dated: ____________ __, 20__. ----------------------------- Taxpayer CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Exhibit D --------- Designation of Beneficiary Form In connection with the RESTRICTED SHARE UNIT AWARD AGREEMENT (the "Award") entered into on _____________ ___, 20__ between Capital Trust, Inc. (the "Company") and _______________, an individual residing at ___________________ (the "Recipient"), the Recipient hereby designates the person specified below as the beneficiary of the Recipient's interest in Restricted Share Units (as defined in the Company's Amended and Restated 2004 Long-Term Incentive Plan) awarded pursuant to the Award. This designation shall remain in effect until revoked in writing by the Recipient. Name of Beneficiary: _________________________________ Address: _________________________________ _________________________________ _________________________________ Social Security No.: _________________________________ The Recipient understands that this designation operates to entitle the above-named beneficiary to the rights conferred by the Award from the date this form is delivered to the Company until such date as this designation is revoked in writing by the Recipient, including by delivery to the Company of a written designation of beneficiary executed by the Recipient on a later date. Date: _________________________________ By: _________________________________ [Recipient Signature] Sworn to before me this ____ day of ____________, 20__ ______________________________ Notary Public County of ___________________ State of ___________________ EX-10 11 ex10-14.txt EX. 10.14 - D&D ELEC FM REST SH AWD AG 2004 PLAN Exhibit 10.14 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN Deferral and Distribution Election Form Attached is the form you may use if you wish to defer the receipt of all or a percentage of the Shares that would otherwise be issued to you from the vesting of your Award. You must submit a copy of the Deferral and Distribution Election Form executed by you to the Company as provided for in the form. An election to defer receipt of your Shares may not be revoked. You are advised to consult with your individual tax advisor with respect to the tax consequences related to your Award and any elections you may make to defer the receipt of Shares. CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN -------------------------------- Deferral and Distribution Election Form -------------------------------- AGREEMENT, made this __ day of ________, 20__, by and between me, as a participant in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), and Capital Trust, Inc. (the "Company"). This Agreement shall control the distribution of any of the Company's shares (the "Shares") that I become entitled to receive pursuant to my Restricted Share Unit Award Agreement dated __________ ___, 20__ (the "Award"). We agree that any term that begins herein with initial capital letters shall have the special meaning defined in the Plan, unless the context clearly requires otherwise. 1. Deferral Election. Pursuant to Section 6 of the Award, I hereby irrevocably elect to defer the receipt of _____% of the Shares that would otherwise be issued to me at any time or from time to time pursuant to the Award. I recognize and agree that the Company will establish an Account for me under the Plan, and will credit that Account with Deferred Share Units pursuant to Section 9 of the Plan. 2. Nature of Distribution. I recognize that distributions from my Account will be made in the form of one Share for each Deferred Share Unit credited to my Account. 3. Timing of Distributions. I hereby elect to commence receiving distributions from my Account on the following date: |_| on the date that is 6 months after termination of my Continuous Service. |_| on the January 1st that next follows the date that is ___ (not more than 10) years after the termination of my Continuous Service. |_| on _________ ___, ____ (which is not later than my 70th birthday and not earlier than 6 months after and not later than 10 years after the termination of my Continuous Service). |_| on the date of a Change in Control of the Company, to the extent allowable under applicable Treasury Regulations under Section 409A of the Code. 4. Manner of Distribution. I hereby elect to have my Account distributed in the following manner: |_| in a single lump sum. |_| in substantially equal annual installments over a period of ___ years (not to exceed 10 years following termination of my Continuous Service). 5. Form of Payment to Beneficiary. In the event of my death before collecting all of my Account, any remaining portion of my Account shall be distributed to my beneficiary or beneficiaries named below in the following manner-- |_| in a single lump sum to be distributed on the date that is 6 months following my death. |_| in accordance with the payment schedule selected in paragraphs 3 and 4 hereof (with payments made as though I survived to collect all benefits, and as though I terminated service on the date of my death if payments had not already begun). 6. Designation of Beneficiary. In the event of my death before I have collected all of my Account, I hereby direct that my beneficiaries shall be as follows: a. Primary Beneficiary. I hereby designate the person(s) named below to be my primary beneficiary and to receive the balance of any unpaid portion of my Account. ======================================================================== Name of Social Security Mailing Address Percentage of Primary Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== b. Contingent Beneficiary. In the event that a primary beneficiary or beneficiaries named above are not living at the time of my death, I hereby designate the following person(s) to be my contingent beneficiary for purposes of the Plan: ======================================================================== Name of Social Security Mailing Address Percentage of Contingent Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== 7. Effect of Election. The elections made in paragraphs 1, 3, and 4 hereof shall be irrevocable. I recognize, however, that I may, by submitting an effective superseding election, at any time and from time to time prospectively change the beneficiary designation and the manner of payment to a Beneficiary. Such elections shall, however, become irrevocable upon my death. 8. Satisfaction of Award Commitments. The parties recognize and agree that the Company will have fully honored and discharged its obligations under this Agreement, the Award, and the Plan if the Company distributes my Account in accordance with the provisions hereof. CAPITAL TRUST, INC. PARTICIPANT By _____________________________________ ___________________________________ A duly authorized officer or director Date: __________________________________ Date: _____________________________ EX-10 12 ex10-15.txt EX. 10.15 - DEF SH UNIT EL FMS 2004 PLAN. Exhibit 10.15 CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN DEFERRED SHARE UNIT PROGRAM ELECTION FORMS CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN DEFERRED SHARE UNIT PROGRAM ----------------------------- Deferral Election Form ----------------------------- AGREEMENT, made this ___ day of ___________, 20__, by and between me, as a participant in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan") and Capital Trust, Inc. (the "Company"). WHEREAS, the Company has approved a deferred share unit program pursuant to the Plan, and I am eligible to participate in the Plan on the terms set forth therein and in this Deferral Election Form and the attached Distribution Election Form (together, the "Program Documents"). NOW THEREFORE, it is mutually agreed as follows: 1. By the execution hereof, I hereby agree to participate in the Plan upon the terms and conditions set forth in the Program Documents, and, in accordance therewith, elect to defer the receipt of: ___% of my base salary, cash bonus or cash-based director fees, including annual retainer. ___% of my compensation in the form of _______________________. 2. This election will continue in force until either the termination of my Continuous Service with the Company, or until the Plan is terminated by appropriate corporate action, whichever shall first occur. CAPITAL TRUST, INC. PARTICIPANT By ______________________________________ ___________________________________ A duly authorized officer or director Date: ___________________________________ Date: _____________________________ CAPITAL TRUST, INC. AMENDED AND RESTATED 2004 LONG-TERM INCENTIVE PLAN DEFERRED SHARE UNIT PROGRAM ----------------------------- Distribution Election Form ------------------------------ AGREEMENT, made this ___ day of __________, 20__, by and between me, as a participant in the Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan (the "Plan"), and Capital Trust, Inc. (the "Company") with respect to distribution of my account ("Account") under the Plan. We agree that any term that begins herein with initial capital letters shall have the special meaning defined in the Plan, unless the context clearly requires otherwise. NOW THEREFORE, it is mutually agreed as follows: 1. Nature of Distribution. I recognize that distributions from my Account will be made in the form of one Share for each Deferred Share Unit credited to my Account. 2. Timing of Distributions. I hereby elect to commence receiving distributions from my Account on the following date: |_| on the date that is 6 months after termination of my Continuous Service. |_| on the January 1st that next follows the date that is ___ (not more than 10) years after the termination of my Continuous Service with the Company. |_| on _________ ___, ____ (which is not later than my 70th birthday and not earlier than 6 months and not later than 10 years after the termination of my Continuous Service). |_| on the date of a Change in Control of the Company, to the extent allowable under Treasury Regulations under Section 409A of the Code. 3. Manner of Distribution. I hereby elect to have my Account distributed in the following manner: |_| in a single lump sum. |_| in substantially equal annual installments over a period of ___ years (not to exceed 10 years following termination of my Continuous Service). 4. Form of Payment to Beneficiary. In the event of my death before collecting all of my Account, any remaining portion of my Account shall be distributed to my beneficiary or beneficiaries named below in the following manner-- |_| in a single lump sum to be distributed on the first date that is 6 months after my death. Deferred Share Unit Program - Distribution Election Form Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 2 |_| in accordance with the payment schedule selected in paragraphs 2 and 3 hereof (with payments made as though I survived to collect all benefits, and as though I terminated service on the date of my death if payments had not already begun). 5. Designation of Beneficiary. In the event of my death before I have collected all of my Account, I hereby direct that my beneficiaries shall be as follows: a. Primary Beneficiary. I hereby designate the person(s) named below to be my primary beneficiary and to receive the balance of any unpaid portion of my Account. ======================================================================== Name of Social Security Mailing Address Percentage of Primary Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== b. Contingent Beneficiary. In the event that a primary beneficiary or beneficiaries named above are not living at the time of my death, I hereby designate the following person(s) to be my contingent beneficiary for purposes of the Plan: ======================================================================== Name of Social Security Mailing Address Percentage of Contingent Beneficiary Number Death Benefit ------------------------------------------------------------------------ % ------------------------------------------------------------------------ % ======================================================================== 6. Effect of Election. The elections made in paragraphs 2, 3, and 4 hereof shall be irrevocable. I recognize, however, that I may, by submitting an effective superseding election, at any time and from time to time prospectively change the beneficiary designation and the manner of payment to a Beneficiary. Such elections shall, however, become irrevocable upon my death. 7. Satisfaction of Plan Commitments. The parties recognize and agree that the Company will have fully honored and discharged its obligations under this Agreement and the Plan if the Company distributes my Account in accordance with the provisions hereof. Deferred Share Unit Program - Distribution Election Form Capital Trust, Inc. Amended and Restated 2004 Long-Term Incentive Plan Page 3 CAPITAL TRUST, INC. PARTICIPANT By _____________________________________ __________________________________ A duly authorized officer or director Date: __________________________________ Date: ____________________________ EX-10 13 ex10-16.txt EX. 10.16 - DIREC RET DEF ELEC FM STOCK 97 PLAN Exhibit 10.16 Capital Trust, Inc. Second Amended and Restated 1997 Long-Term Incentive Stock Plan DIRECTOR RETAINER Deferral Election Form for Stock Units ------------- This deferral election ("Election") is made this __ day of _______, 200_, by and between Capital Trust, Inc., a Maryland corporation, and ______________ ("I", "me" or "Director"). Any term herein which begins in initial capital letters shall (unless defined herein) have the meaning defined in the Capital Trust, Inc. Second Amended and Restated 1997 Long-Term Incentive Stock Plan ("Plan"). WHEREAS, in recognition of my service as a Director, I am entitled to receive an annual retainer in Stock Units pursuant to the Plan; WHEREAS, I have the opportunity to defer compensation with respect to these Stock Units; and WHEREAS, I understand and agree that this Election shall only be effective with respect to Stock Units granted to me on or after the calendar year in which this election is made; provided, however, that if this Election is made within 30 days of my initial appointment as a Director, this Election shall be effective with respect to all Stock Units made subsequent to the date of this Election; NOW THEREFORE, it is mutually agreed as follows: I hereby elect to receive my Stock Units upon the occurrence of the following (please check one option): |_| At the earlier of my attaining age ____ or when no longer a director. |_| When no longer a director. |_| On the date of grant. CAPITAL TRUST, INC. DIRECTOR By:__________________________ __________________________ A duly authorized agent Name: Date: Date: EX-10 14 ex10-21.txt EX. 10.21.B - JOINDER AND AMDT JULY 20, 2004 Exhibit 10.21.b JOINDER AND AMENDMENT This JOINDER AND AMENDMENT (the "Joinder and Amendment") is executed and delivered as of July 20, 2004 (the "Joinder Date") by CT RE CDO 2004-1 SUB, LLC (the "Joinder Party"), a Delaware limited liability company, CAPITAL TRUST, Inc., a Maryland corporation ("CT"), and CT MEZZANINE PARTNERS I LLC, a Delaware limited liability company ("CT Mezz" together with CT, "Borrowers" and individually, as the context requires, as a "Borrower"), in favor of MORGAN STANLEY MORTGAGE CAPITAL INC., a New York corporation ("Lender"), and agreed to and accepted by DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation ("Custodian"), and MIDLAND LOAN SERVICES, INC., a Delaware corporation ("Servicer"). This Joinder and Amendment is executed and delivered with reference to the following facts: A. Borrowers and Lender have entered into that certain Amended and Restated Master Loan and Security Agreement for a Credit Facility dated as of June 27, 2003 ("MLSA"). B. Pursuant to the MLSA, Lender has agreed to lend to the Borrowers, the aggregate sum of up to One Hundred Fifty Million Dollars ($150,000,000) pursuant to a revolving credit arrangement, whether before, simultaneously with, or after the execution of this Joinder and Amendment (the "Loan"). C. The Joinder Party is directly owned and controlled by CT and the Joinder Party will obtain substantial benefits from Lender's making of the Loan. D. The Joinder Party desires to join in the Borrowers' obligations with respect to the Loan and to provide security for the Loan. E. On the Joinder Date, the Joinder Party has executed and delivered, among other things, to Lender the Fourth Amended and Restated Promissory Note dated as of June 8, 1998 (the "MLSA Note"), made by the Joinder Party and Borrowers in favor of Lender in the maximum principal amount of One Hundred Fifty Million Dollars ($150,000,000). NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Joinder Party hereby agrees, by executing this Joinder and Amendment, as follows: 1. Assumption of Liability. The Joinder Party hereby joins in, and assumes direct primary liability, and not liability as a guarantor or surety, for, all the obligations of Borrowers (whether now existing or established in the future) under the following documents (each, a "Loan Document" and collectively, the "Loan Documents"): (a) the MLSA; (b) the MLSA Note, (c) that certain Amended and Restated Custodial Agreement dated as of June 27, 2003 (the "Custodial Agreement"), among Borrowers, Custodian and Lender; and (d) that certain Amended and Restated Interim Servicing Agreement dated as of June 27, 2003 (the "Servicing Agreement"), among Borrowers, Lender and Servicer; and (e) any other documents, certificates and agreements executed by Borrower in connection with the foregoing documents listed as items (a)-(d). This Joinder and Amendment is made to facilitate the pledging by Joinder Party to Lender of that certain CMBS (as defined in the MLSA) described more particularly on Exhibit A annexed hereto (the "CDO Collateral"). By executing this Joinder and Amendment, the Joinder Party is assuming and agreeing to all liabilities and obligations whether now existing or hereafter arising under the Loan Documents, and all the terms, conditions, covenants and restrictions thereof. The Joinder Party shall be fully liable for all obligations of Borrowers under, and fully bound by, all the Loan Documents as if the Joinder Party had executed and delivered all the Loan Documents (including any future amendments or modifications thereof) directly in the Joinder Party's own name. 2. Obligation to Pay. The Joinder Party shall, in accordance with the Borrowers' obligations under the Loan Agreement, pay the principal amount of the Loan, including all present and future disbursements or advances made by Lender on account of the Loan, all interest accrued thereon, and all other sums payable under any Loan Documents. 3. Covenants, Consents, Acknowledgments, Etc. The Joinder Party: a. joins in all present and future consents, acknowledgments, obligations, agreements, undertakings, liabilities, covenants and confirmations contained in the Loan Documents, whether arising before or after the Joinder Date; b. shall be bound by all restrictions, limitations, and prohibitions that apply to Borrowers under any of the Loan Documents; and c. makes all of the representations and warranties contained in the Loan Documents for itself to the extent applicable and to the same extent required to be made by CT Mezz under the Loan Documents, as if the same were fully set forth herein. 4. Amendments to MLSA. The MLSA is amended as follows: (a) Solely with respect to the CDO Collateral, the definition of "Eurodollar Rate Spread" contained in Section 1.01 of the MLSA is amended to add at the end thereof the following sentence: "Notwithstanding the foregoing, for CDO Collateral only, Eurodollar Rate Spread means (A) as to each Advance Rate the applicable Eurodollar Rate Spread set forth below opposite such Advance Rate:
- ------------------------------------------------------------------------------------------- Eurodollar Rate Spread (expressed as percentage points per annum and as CDO Collateral Advance Rate basis points) - ------------------------------------------------------------------------------------------- - ----------------------------------------------------------------- ------------------------- Series F Note 60% 1.50% 150 bp - ----------------------------------------------------------------- ------------------------- Series G Note 50% 1.50% 150 bp - ----------------------------------------------------------------- ------------------------- Series H Note 40% 2.00% 200 bp - ----------------------------------------------------------------- -------------------------
and (B) notwithstanding anything set forth in clause (A) to the contrary, in the event the Termination Date shall be extended pursuant to the terms hereof, for the period from and after July 16, 2005 to, and including, the date the Loans are repaid in full, as to each Advance Rate the sum of (x) the applicable Eurodollar Rate Spread set forth opposite such Advance Rate for the applicable Collateral type in clause (A) above, plus (y) .25 percent, or 25 basis points, per annum. 2 (b) Section 7.15 is amended to include the word ", CMBS" in the penultimate sentence after the term "B Notes." 5. Amendments to Servicing Agreement. The Servicing Agreement is amended as follows: (a) The terms "Collection Account" and "MSMCI Account" shall both mean: "Eligible Accounts and shall be denominated "Midland Loan Services, Inc." in Trust for Capital Trust, Inc.," or "Midland Loan Services, Inc." in Trust for CT Mezzanine Partners I LLC," or "Midland Loan Services, Inc." in Trust for CT RE CDO 2004-1 SUB, LLC," as applicable, or in such other manner as the applicable Owner prescribes." (b) The term "Owner" or "Owners" as those terms are used in the Servicing Agreement shall be amended to include CT RE CDO 2004-1 SUB, LLC; and (c) Section 9.12 shall be amended to include CT RE CDO 2004-1 SUB, LLC after the term "CT." 6. Amendment to the Custodial Agreement. The Custodial Agreement shall be amended to include CT RE CDO 2004-1 SUB, LLC as "Borrower" and under the term "Borrowers" as those terms are used in the Custodial Agreement. 7. Signature of Loan Documents. This Joinder and Amendment is intended to be the equivalent of a signature page to the Loan Documents. The Joinder Party acknowledges that its obligations as a party to the Loan Documents are unconditional and are not subject to the execution of the Loan Documents by any other party. Lender is authorized to rely on this Joinder and Amendment as evidence that the Joinder Party has joined in all the Loan Documents and all obligations thereunder and are fully obligated thereunder. 8. Certain Actions by Lender. Lender shall have the right to (1) renew, modify, amend, waive, extend, or accelerate any obligations arising under the Loan Documents, (2) pursue some or all of its remedies against Borrowers or the Joinder Party, (3) add, release, or substitute any collateral given to Lender as secured for the Loan, or (4) release Borrowers or the Joinder Party from liability. Lender may take any of the foregoing actions without consent or confirmation by the Joinder Party, and no such action shall limit, restrict, waive, discharge, or otherwise affect the Joinder Party's liability under this Joinder and Amendment. If Lender and Borrowers agree to any modification or amendment of the Loan Documents, then the Joinder Party shall be bound by such agreement whether or not the Joinder Party consents and agrees thereto. 9. Incorporation by Reference. All the Loan Documents, as they now exist and as they may be amended or modified in the future (whether or not the Joinder Party is a party to such amendment), are incorporated by reference in this Joinder and Amendment as if set forth in full. 10. JURY TRIAL WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE JOINDER PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS JOINDER AND AMENDMENT OR THE LOAN DOCUMENTS. THIS WAIVER IS A MATERIAL INDUCEMENT TO LENDER TO MAKE THE LOAN. 11. Security. This Joinder and Amendment, and all obligations of the Joinder Party under the Loan Documents, are secured by all security documents delivered pursuant to the MLSA. 3 12. Governing Law. This Joinder and Amendment shall be governed by the laws of the State of New York. 13. Inducement. The Joinder Party acknowledges that this Joinder and Amendment is being executed and delivered to Lender to induce Lender to make the Loan to Borrowers, and but for this Joinder and Amendment, Lender would not be willing to make such Loan. 14. No Conditions. This Joinder and Amendment is unconditional. The Joinder Party's obligations under this Joinder and Amendment is not subject to the satisfaction of any conditions that have not yet been satisfied. 15. Joint and Several Liability. The obligations of the Joinder Party and Borrowers are joint and several. 16. Contribution. a. Right to Contribution. To provide for a just and equitable contribution among Borrowers and the Joinder Party, if any payment is made by Borrowers or the Joinder Party (such party, a "Funding Obligor") under the Loan Documents or this Joinder and Amendment in respect of the Loan, such Funding Obligor shall be entitled to a contribution from each other party for all payments, damages and expenses, incurred by such Funding Obligor under or in connection with the Loan, such contributions to be made in the manner and to the extent set forth below. Any amount payable as a contribution under the Loan Documents or this Joinder and Amendment shall be determined as of the date on which the related payment is made by a Funding Obligor. b. Calculation of Contributions. Borrowers and the Joinder Party shall be liable for contribution to each Funding Obligor in respect of all payments, damages and expenses incurred by such Funding Obligor hereunder or under the Loan, any other Loan Document or this Joinder and Amendment in an aggregate amount, subject to Section 16 c hereof, equal to (i) the ratio of (x) the then current aggregate Asset-Specific Loan Balance for the Eligible Collateral held by such non-Funding Obligor under the MLSA to (y) the then current aggregate Asset-Specific Loan Balance of all the Eligible Collateral under the MLSA multiplied by (ii) the aggregate amount of such payments, damages and expenses incurred by such Funding Obligor under or in connection with the Loan. The terms "Asset-Specific Loan Balance" and "Eligible Collateral" shall have the meanings ascribed to such terms in the MLSA, as applicable. c. Rights to Contribution Subordinated. This Section 16 shall not in any way affect, modify or impair (i) Lender's or Custodian's rights or remedies under the Loan Documents or (ii) the obligations of the Joinder Party hereunder or under the Loan Documents. Accordingly, Borrowers and the Joinder Party agree that all of their rights to receive contribution under this Section 16 (whether for payments, damages, expenses or otherwise) and all of its rights, if any, to be subrogated to any of the rights of Lender shall be subordinated in right of payments (in liquidation or otherwise) to the prior payment in full of all of the Loan (whether for principal, interest, premium or otherwise) and any amounts due to the Custodian under the Loan Documents. If any amount shall at any time be paid to a Borrowers or the Joinder Party on account of such rights of contribution or 4 subrogation, or in contravention of the provisions of this Section 16 c at any time, such amount shall be held in trust, segregated from the other assets of such Borrowers or the Joinder Party, as applicable, for the benefit of Lender and shall promptly be paid to Lender. d. Preservation of Rights. In the case of any payments, damages or expenses incurred by a Funding Obligor in respect of the Loan, this Joinder and Amendment shall not limit any right which any party may have against any other person whether or not a party hereto. e. Asset of Party to Which Contribution is Owing. Borrowers and the Joinder Party acknowledge that the right of contribution hereunder shall constitute an asset of the party to which such contribution is owing including, without limitation, for purposes of determining any limitation of liability contained in any guarantee calculated, directly or indirectly, by reference to the assets of such party. 17. Acknowledgement by Borrowers. Borrowers hereby agree to this Joinder and Amendment and all its terms and conditions. Borrowers shall perform and be bound by all obligations and covenants of the Joinder Party under this Joinder and Amendment. All such obligations and covenants shall also constitute obligations and covenants of Borrowers under the Loan Documents. Any breach or default by the Joinder Party under this Joinder and Amendment or any Loan Document shall constitute a breach or default by Borrowers under the Loan Documents. [SIGNATURES COMMENCE ON FOLLOWING PAGE.] 5 IN WITNESS WHEREOF, the Joinder Party and Borrowers have executed this Joinder and Amendment as of the Joinder Date. JOINDER PARTY: BORROWERS: CT RE CDO 2004-1 SUB, LLC CAPITAL TRUST, Inc. a Delaware limited liability company a Maryland Corporation By: /s/ Brian H. Oswald By: /s/ Brian H. Oswald ------------------- ------------------- Name: Brian H. Oswald Name: Brian H. Oswald Title: Chief Financial Officer Title: Chief Financial Officer CT MEZZANINE PARTNERS I LLC, a Delaware limited liability company By: /s/ Brian H. Oswald ------------------- Name: Brian H. Oswald Title: Chief Financial Officer LENDER: MORGAN STANLEY MORTGAGE CAPITAL INC., a New York corporation By: /s/ [signature illegible] ------------------------- Name: Title: 6 SERVICER: MIDLAND LOAN SERVICES, INC., a Delaware corporation By: /s/ Jan Sternin ----------------- Name: Jan Sternin Title: Senior Vice President 7 CUSTODIAN: Custodian executes this Joinder and Amendment in its capacity as custodian and for the limited purpose of recognizing Joinder Party as a party under the Custodial Agreement as more specifically provided in this Joinder and Amendment. DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation By: /s/ Wendy Estes ---------------- Name: Wendy Estes Title: Associate 8 EXHIBIT A CDO COLLATERAL
- ---------------------------------------------------------------------------------------------- Description CUSIP # Certificate # Rating Principal Amount - ---------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------- CAPITAL TRUST RE CDO $6,481,000 2004-1 LTD. Class F Floating Rate Note due July 2039 ("Series F Note") - ---------------------------------------------------------------------------------------------- CAPITAL TRUST RE CDO $16,204,000 2004-1 LTD. Class G Floating Rate Note due July 2039 ("Series G Note") - ---------------------------------------------------------------------------------------------- CAPITAL TRUST RE CDO $12,963,000 2004-1 LTD. Class H Floating Rate Note due July 2039 ("Series H Note") - ---------------------------------------------------------------------------------------------
9 EX-10 15 ex10-22d.txt EX. 10.22.D - 3RD AMDT MASTER REP AG 11-14-04 Exhibit 10.22.d THIRD AMENDMENT TO MASTER REPURCHASE AGREEMENT THIRD AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of November 15, 2004 (this "Amendment"), to that certain Master Repurchase Agreement (the "Original Agreement"), dated as of May 28, 2003, as amended by that certain First Amendment to Master Repurchase Agreement, dated as of August 26, 2003 (the "First Amendment"), as further amended by that certain Second Amendment to Master Repurchase Agreement, dated as of June 1, 2004 (the "Second Amendment"; and together with the First Amendment and the Original Agreement, the "Repurchase Agreement"), by and among Goldman Sachs Mortgage Company, as a buyer and as Administrative Agent ("GSMC"), Commerzbank AG, New York Branch, as a buyer ("Commerzbank"), and Capital Trust, Inc., as seller ("Seller"). Capitalized terms used but not defined herein shall have the meanings set forth in the Repurchase Agreement. RECITAL ------- WHEREAS, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed to amend the Repurchase Agreement as set forth herein. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Amendments. The Repurchase Agreement is hereby amended as follows: (a) Section 3(e)(2) of Annex I to the Repurchase Agreement is hereby deleted in its entirety and replaced with the following: "Seller shall have a Fixed Charge Ratio of greater than 1.2:1 and a Debt to Equity Ratio of less than 5:1 for the fiscal quarter most recently ended;" (b) Section 14(a)(xi) of Annex I to the Repurchase Agreement is hereby deleted in its entirety and replaced with the following: "Seller fails to maintain a Fixed Charge Ratio of greater than 1.2:1 and a Debt to Equity Ratio of less than 5:1 as of the end of any fiscal quarter;" 2. Continuing Effect. Except as expressly amended by this Amendment, the Repurchase Agreement and the other Transaction Documents remain in full force and effect in accordance with their respective terms, and are hereby in all respects ratified and confirmed. 3. References to Repurchase Agreement. All references to the Repurchase Agreement in any Transaction Document or in any other document executed or delivered in connection therewith shall, from and after the execution and delivery of this Amendment, be deemed a reference to the Repurchase Agreement as amended hereby, unless the context expressly requires otherwise. 4. Governing Law. This Amendment shall be governed by and construed and interpreted in accordance with the laws of the State of New York. 5. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. [SIGNATURES FOLLOW ON NEXT PAGE] 2 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered in their names as of the date first above written. GOLDMAN SACHS MORTGAGE COMPANY, as a Buyer By: Goldman Sachs Real Estate Funding Corp. By: /s/ Mark Buono -------------- Name: Mark Buono Title: Vice President GOLDMAN SACHS MORTGAGE COMPANY, as Administrative Agent By: Goldman Sachs Real Estate Funding Corp. By: /s/ Mark Buono -------------- Name: Mark Buono Title: Vice President COMMERZBANK AG, NEW YORK BRANCH, as a Buyer By: /s/ Anthony J. Tuffy -------------------- Name: Anthony J. Tuffy Title: Senior Vice President By: /s/ Steve Rosamilia ------------------- Name: Steve Rosamilia Title: Vice President 3 CAPITAL TRUST, INC., as Seller By: /s/ Brian H. Oswald -------------------- Name: Brian H. Oswald Title: Chief Financial Officer 4 EX-10 16 ex10-22e.txt EX. 10.22.E - 4TH AMDT MASTER REP AG 2-28-05 Exhibit 10.22.e FOURTH AMENDMENT TO MASTER REPURCHASE AGREEMENT FOURTH AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of February 28, 2005 (this "Amendment"), to the Master Repurchase Agreement (the "Original Agreement"), dated as of May 28, 2003, as amended by the First Amendment to Master Repurchase Agreement, dated as of August 28, 2003 (the "First Amendment"), as amended by the Second Amendment to Master Repurchase Agreement dated as of June 1, 2004 (the "Second Amendment"), as amended by the Third Amendment to Master Repurchase Agreement dated as of November 15, 2004 (the "Third Amendment", and together with the First Amendment and the Original Agreement, the "Repurchase Agreement"), by and between Goldman Sachs Mortgage Company, as a buyer and as Administrative Agent ("GSMC"), Commerzbank AG, New York Branch, as a buyer ("Commerzbank") and Capital Trust, Inc., as seller ("Seller"). Capitalized terms used but not defined herein shall have the meanings set forth in the Repurchase Agreement. RECITAL ------- WHEREAS, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed to extend the Facility Termination Date under the Repurchase Agreement and to amend the Transaction Documents as set forth herein. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. The definition of "Change of Control" in Section 2(c) of Annex I to the Repurchase Agreement is hereby deleted in its entirety and replaced with the following: "'Change of Control' shall mean either of the following events have occurred: (i) a majority of the members of the board of directors of Seller changes during any twelve (12) month period after the date hereof; or (ii) a merger, consolidation or other transaction in which a Person which is not an Affiliate acquires in excess of 50% of the voting common equity of Seller." 2. Continuing Effect. Except as expressly amended by this Amendment, the Repurchase Agreement and the other Transaction Documents remain in full force and effect in accordance with their respective terms, and are hereby in all respects ratified and confirmed. 3. References to Repurchase Agreement. All references to the Repurchase Agreement in any Transaction Document or in any other document executed or delivered in connection therewith shall, from and after the execution and delivery of this Amendment, be deemed a reference to the Repurchase Agreement as amended hereby, unless the context expressly requires otherwise. 4. Governing Law. This Amendment shall be governed by and construed and interpreted in accordance with the laws of the State of New York. 5. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered in their names as of the date first above written. GOLDMAN SACHS MORTGAGE COMPANY, as a Buyer By: Goldman Sachs Real Estate Funding Corp. By: /s/ Leo Huang ------------- Name: Leo Huang Title: Authorized Signatory GOLDMAN SACHS MORTGAGE COMPANY, as Administrative Agent By: Goldman Sachs Real Estate Funding Corp. By: /s/ Leo Huang ------------- Name: Leo Huang Title: Authorized Signatory COMMERZBANK AG, NEW YORK BRANCH, as a Buyer By: /s/ Steve Rosamilia ---------------------------- Name: Steve Rosamilia Title: Vice President By: /s/ David Goldman ---------------------------- Name: David Goldman Title: Vice President [Signatures continue on next page.] CAPITAL TRUST, INC., as Seller By: /s/ Brian H. Oswald ------------------- Name: Brian H. Oswald Title: Chief Financial Officer EX-10 17 ex10-24a.txt EX. 10.24.A - MASTER REP AG 2-19-02 Exhibit 10.24.a - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PSA THE BOND MARKET TRADE ASSOCIATION MASTER REPURCHASE AGREEMENT September 1996 Version - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Dated as of February 19, 2002 ------------ Between: LIQUID FUNDING, LTD. - ------------------- and CT LF FUNDING CORP. - -------------------------------------------- 1. Applicability. From time to time the parties hereto may enter into transactions in which one party ("Seller") agrees to transfer to the other ("Buyer") securities or other assets ("Securities") against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller. Each such transaction shall be referred to herein as a "Transaction" and, unless otherwise agreed in writing, shall be governed by this Agreement, including any supplemental terms or conditions contained in Annex I hereto and in any other annexes identified herein or therein as applicable hereunder. 2. Definitions. (a) "Act of Insolvency", with respect to any party, (i) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency, or similar law, or such party seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for such party or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election, (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment or election, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect, or (C) is not dismissed within 15 days, (iii) the making by such party of a general assignment for the benefit of creditors, or (iv) the admission in writing by such party of such party's inability to pay such party's debts as they become due; (b) "Additional Purchased Securities", Securities provided by Seller to Buyer pursuant to Paragraph 4(a) hereof; (c) "Buyer's Margin Amount", with respect to any Transaction as of any date, the amount obtained by application of the Buyer's Margin Percentage to the Repurchase Price for such Transaction as of such date; (d) "Buyer's Margin Percentage", with respect to any Transaction as of any date, a percentage (which may be equal to the Seller's Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction; (e) "Confirmation", the meaning specified in Paragraph 3(b) hereof; (f) "Income", with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon; (g) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof; (h) "Margin Excess", the meaning specified in Paragraph 4(b) hereof; - -------------------------------------------------------------------------------- 1 (i) "Margin Notice Deadline", the time agreed to by the parties in the relevant Confirmation, Annex I hereto or otherwise as the deadline for giving notice requiring same-day satisfaction of margin maintenance obligations as provided in Paragraph 4 hereof (or, in the absence of any such agreement, the deadline for such purposes established in accordance with market practice); (j) "Market Value", with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued income to the extent not included therein (other than any income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities); (k) "Price Differential", with respect to any Transaction as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360-day-per-year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction); (l) "Pricing Rate", the per annum percentage rate for determination of the Price Differential; (m) "Prime Rate", the prime rate of U.S. commercial banks as published in The Wall Street Journal (or, if more than one such rate is published, the average of such rates); (n) "Purchase Date", the date on which Purchased Securities are transferred by Seller to Buyer; (o) "Purchase Price", (i) on the Purchase Date, the price at which Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter, except where Buyer and Seller agree otherwise, such price increased by the amount of any cash transferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to reduce Seller's obligations under clause (ii) of Paragraph 5 hereof; (p) "Purchased Securities", the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term "Purchased Securities" with respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant to Paragraph 4(a) and shall exclude Securities returned pursuant to Paragraph 4(b) hereof; (q) "Repurchase Date", the date on which Seller is to repurchase the Purchased Securities from Buyer, including any date determined by application of the provisions of Paragraph 3(c) or 11 hereof; (r) "Repurchase Price", the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination; (s) "Seller's Margin Amount", with respect to any Transaction as of any date, the amount obtained by application of the Seller's Margin Percentage to the Repurchase Price for such Transaction as of such date; (t) "Seller's Margin Percentage", with respect to any Transaction as of any date, a percentage (which may be equal to the Buyer's Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction. 3. Initiation; Confirmation; Termination. (a) An agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Seller. On the Purchase Date for the Transaction, the Purchased Securities shall be transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller. (b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as shall be agreed, shall promptly deliver to the other party a written confirmation of each Transaction (a "Confirmation"). The Confirmation shall describe the Purchased Securities (including CUSIP number, if any), identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction, and (v) any additional terms or conditions of the Transaction not inconsistent with this Agreement. The Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates, unless with respect to the Confirmation specific objection is made promptly after receipt thereof. In the event of any conflict between the terms of such Confirmation and this Agreement, this Agreement shall prevail. - -------------------------------------------------------------------------------- 2 (c) In the case of Transactions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary in accordance with market practice, by telephone or otherwise on or prior to the business day on which such termination will be effective. On the date specified in such demand, or on the date fixed for termination in the case of Transactions having a fixed term, termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase Price to an account of Buyer. 4. Margin Maintenance. (a) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Buyer is less than the aggregate Buyer's Margin Amount for all such Transactions (a "Margin Deficit"), then Buyer may by notice to Seller require Seller in such Transactions, at Seller's option, to transfer to Buyer cash or additional Securities reasonably acceptable to Buyer ("Additional Purchased Securities"), so that the cash and aggregate Market Value of the Purchased Securities, including any such Additional Purchased Securities, will thereupon equal or exceed such aggregate Buyer's Margin Amount (decreased by the amount of any Margin Deficit as of such date arising from any Transactions in which such Buyer is acting as Seller). (b) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for all such Transactions at such time (a "Margin Excess"), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer's option, to transfer cash or Purchased Securities to Seller, so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or any Purchased Securities so transferred, will thereupon not exceed such aggregate Seller's Margin Amount (increased by the amount of any Margin Excess as of such date arising from any Transactions in which such Seller is acting as Buyer). (c) If any notice is given by Buyer or Seller under subparagraph (a) or (b) of this Paragraph at or before the Margin Notice Deadline on any business day, the party receiving such notice shall transfer cash or Additional Purchased Securities as provided in such subparagraph no later than the close of business in the relevant market on such day. If any such notice is given after the Margin Notice Deadline, the party receiving such notice shall transfer such cash or Securities no later than the close of business in the relevant market on the next business day following such notice. (d) Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall be agreed upon by Buyer and Seller. (e) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer or Seller (or both) under subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess, as the case may be, exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions). (f) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as the case may be, may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without regard to any other Transaction outstanding under this Agreement). 5. Income Payments. Seller shall be entitled to receive an amount equal to all Income paid or distributed on or in respect of the Securities that is not otherwise received by Seller, to the full extent it would be so entitled if the Securities had not been sold to Buyer. Buyer shall, as the parties may agree with respect to any Transaction (or, in the absence of any such agreement, as Buyer shall reasonably determine in its discretion), on the date such Income is paid or distributed either (i) transfer to or credit to the account of Seller such Income with respect to any Purchased Securities subject to such Transaction or (ii) with respect to Income paid in cash, apply the Income payment or payments to reduce the amount, if any, to be transferred to Buyer by Seller upon termination of such Transaction. Buyer shall not be obligated to take any action pursuant to the preceding sentence (A) to the extent that such action would result in the creation of a Margin Deficit, unless prior thereto or simultaneously therewith Seller transfers to Buyer cash or Additional Purchased Securities sufficient to eliminate such Margin Deficit, or (B) if an Event of Default with respect to Seller has occurred and is then continuing at the time such Income is paid or distributed. 6. Security Interest. Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged to Buyer as security for the performance by - -------------------------------------------------------------------------------- 3 Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of the Purchased Securities with respect to all Transactions hereunder and all Income thereon and other proceeds thereof. 7. Payment and Transfer. Unless otherwise mutually agreed, all transfers of funds hereunder shall be in immediately available funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for transfer or shall be accompanied by duly executed instruments of transfer or assignment in blank and such other documentation as the party receiving possession may reasonably request, (ii) shall be transferred on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method mutually acceptable to Seller and Buyer. 8. Segregation of Purchased Securities. To the extent required by applicable law, all Purchased Securities in the possession of Seller shall be segregated from other securities in its possession and shall be identified as subject to this Agreement. Segregation may be accomplished by appropriate identification on the books and records of the holder, including a financial or securities intermediary or a clearing corporation. All of Seller's interest in the Purchased Securities shall pass to Buyer on the Purchase Date and, unless otherwise agreed by Buyer and Seller, nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Securities or otherwise selling, transferring, pledging or hypothecating the Purchased Securities, but no such transaction shall relieve Buyer of its obligations to transfer Purchased Securities to Seller pursuant to Paragraphs 3, 4 or 11 hereof, or of Buyer's obligation to credit or pay income to, or apply income to the obligations of, Seller pursuant to Paragraph 5 hereof. - -------------------------------------------------------------------------------- Required Disclosure for Transactions in Which the Seller Retains Custody of the Purchased Securities Seller is not permitted to substitute other securities for those subject to this Agreement and therefore must keep Buyer's securities segregated at all times, unless in this Agreement Buyer grants Seller the right to substitute other securities. If Buyer grants the right to substitute, this means that Buyer's securities will likely be commingled with Seller's own securities during the trading day. Buyer is advised that, during any trading day that Buyer's securities are commingled with Seller's securities, they [will]* [may]** be subject to liens granted by Seller to [its clearing bank]* [third parties]** and may be used by Seller for deliveries on other securities transactions. Whenever the securities are commingled, Seller's ability to resegregate substitute securities for Buyer will be subject to Seller's ability to satisfy [the clearing]* [any]** lien or to obtain substitute securities. - -------------------------------------------------------------------------------- * Language to be used under 17 C.F.R. Section 403.4(e) if Seller is a government securities broker or dealer other than a financial institution. ** Language to be used under 17 C.F.R. Section 403.5(d) if Seller is a financial institution. 9. Substitution. (a) Seller may, subject to agreement with and acceptance by Buyer, substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities. (b) In Transactions in which the Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to and accepted in this Agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other Securities shall have a Market Value at least equal to the Market Value of the Purchased Securities for which they are substituted. 10. Representations. Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing, in the form of an annex hereto or otherwise, in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected. On the Purchase Date for any Transaction Buyer and Seller shall each be deemed to repeat all the foregoing representations made by it. - -------------------------------------------------------------------------------- 4 11. Events of Default. In the event that (i) Seller fails to transfer or Buyer fails to purchase Purchased Securities upon the applicable Repurchase Date, (ii) Seller or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (iii) Seller or Buyer fails to comply with Paragraph 4 hereof, (iv) Buyer fails, after one business day's notice, to comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with respect to Seller or Buyer, (vi) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated, or (vii) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its obligations hereunder (each an "Event of Default"): (a) The nondefaulting party may, at its option (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), declare an Event of Default to have occurred hereunder and, upon the exercise or deemed exercise of such option, the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (except that, in the event that the Purchase Date for any Transaction has not yet occurred as of the date of such exercise or deemed exercise, such Transaction shall be deemed immediately cancelled. The nondefaulting party shall (except upon the occurrence of an Act of Insolvency) give notice to the defaulting party of the exercise of such option as promptly as practicable. (b) In all Transactions in which the defaulting party is acting as Seller, if the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, (i) the defaulting party's obligations in such Transactions to repurchase all Purchased Securities, at the Repurchase Price therefore on the Repurchase Date determined in accordance with subparagraph (a) of this Paragraph, shall thereupon become immediately due and payable, (ii) all Income paid after such exercise or deemed exercise shall be retained by the nondefaulting party and applied to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder, and (iii) the defaulting party shall immediately deliver to the nondefaulting party any Purchased Securities subject to such Transactions then in the defaulting party's possession or control. (c) In all Transactions in which the defaulting party is acting as Buyer, upon tender by the nondefaulting party of payment of the aggregate Repurchase Prices for all such Transactions, all right, title and interest in and entitlement to all Purchased Securities subject to such Transactions shall be deemed transferred to the nondefaulting party, and the defaulting party shall deliver all such Purchased Securities to the nondefaulting party. (d) If the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this paragraph, the nondefaulting party, without prior notice to the defaulting party, may: (i) as to Transactions in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market (or otherwise in a commercially reasonably manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, any or all Purchased Securities subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to give the defaulting party credit for such Purchased Securities in an amount equal to the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder; and (ii)as to Transactions in which the defaulting party is acting as Buyer, (A) immediately purchase, in a recognized market (or otherwise in a commercially reasonable manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, securities ("Replacement Securities") of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation form such a source. Unless otherwise provided in Annex I, the parties acknowledge and agree that (1) the Securities subject to any Transaction hereunder are instruments traded in a recognized market, (2) in the absence of a generally recognized source for prices or bid or offer quotations for any Security, the nondefaulting party may establish the source therefor in its sole discretion and (3) all prices, bids and offers shall be determined together with accrued income (except to the extent contrary to market practice with respect to the relevant Securities). (e) As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the nondefaulting party for any excess of the price paid (or deemed paid) by the nondefaulting party for Replacement Securities over the Repurchase Price for the Purchased Securities replaced thereby and for any amounts payable by the defaulting party under Paragraph 5 hereof or otherwise hereunder. - -------------------------------------------------------------------------------- 5 (f) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of the option referred to in subparagraph (a) of this Paragraph. (g) The defaulting party shall be liable to the nondefaulting party for (i) the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a result of an Event of Default, (ii) damages in an amount equal to the cost (including all fees, expenses and commissions) of entering into replacement transactions and entering into or terminating hedge transactions in connection with or as a result of an Event of Default, and (iii) any other loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default in respect of a Transaction. (h) To the extent permitted by applicable law, the defaulting party shall be liable to the nondefaulting party for interest on any amounts owing by the defaulting party hereunder, from the date the defaulting party becomes liable for such amounts hereunder until such amounts are (i) paid in full by the defaulting party or (ii) satisfied in full by the exercise of the nondefaulting party's rights hereunder. Interest on any sum payable by the defaulting party to the nondefaulting party under this Paragraph 11(h) shall be at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. (i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. 12. Single Agreement Buyer and Seller acknowledge that, and have entered hereinto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. 13. Notices and Other Communications. Any and all notices, statements, demands or other communications hereunder may be given by a party to the other by mail, facsimile, telegraph, messenger or otherwise to the address specified in Annex II hereto, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and request hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence. 14. Entire Agreement; Severability. This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. 15. Non-assignability; Termination. (a) The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party, and any such assignment without the prior written consent of the other party shall be null and void. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may be terminated by either party upon giving written notice to the other, except that this Agreement shall, notwithstanding such notice, remain applicable to any Transactions then outstanding. (b) Subparagraph (a) of this Paragraph 15 shall not preclude a party from assigning, charging or otherwise dealing with all or any part of its interest in any sum payable to it under Paragraph 11 hereof. - -------------------------------------------------------------------------------- 6 16. Governing Law. This Agreement shall be governed by the laws of the State of New York without giving effect to the conflict of law principles thereof. 17. No Waivers, Etc. No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure here-from shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the foregoing, the failure to give a notice pursuant to subparagraphs 4(a) or 4(b) hereof will not constitute a waiver of any right to do so at a later date. 18. Use of Employee Plan Assets. (a) If assets of an employee benefit plan subject to any provision of the Employee Retirement Income Security Act of 1974 ("ERISA") are intended to be used by either party hereto (the "Plan Party") in a Transaction, the Plan Party shall so notify the other party prior to the Transaction. The Plan Party shall represent in writing to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be required so to proceed. (b) Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition. (c) By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller's latest such financial statements, there has been no material adverse change in Seller's financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party. 19. Intent. (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (b) It is understood that either party's right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. (c) The parties agree and acknowledge that if a party hereto is an "insured depository institution," as such term is defined the Federal Deposit Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a "qualified financial contract," as that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (d) It is understood that this Agreement constitutes a "netting contract" as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a "covered contractual payment entitlement" or "covered contractual payment obligation", respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a "financial institution" as that term is defined in FDICIA). 20. Disclosure Relating to Certain Federal Protections. The parties acknowledge that they have been advised that: (a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission ("SEC") under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other party with respect to any Transaction hereunder; - -------------------------------------------------------------------------------- 7 (b) in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and (c) In the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable. LIQUID FUNDING, LTD. CT LF FUNDING CORP. ----------------------------- PARTY A PARTY B BY: /s/ DEBORAH POOLE BY: /s/ EDWARD L. SHUGRUE, III --------------------------------- ------------------------------- NAME: Deborah Poole NAME: Edward L. Shugrue, III ------------------------------- ------------------------------- TITLE: Director TITLE: Vice President ------------------------------ ------------------------------- DATE: 27 February 2002 DATE: 2/28/02 ------------------------------ ------------------------------- - -------------------------------------------------------------------------------- 8 Annex I Supplemental Terms and Conditions This Annex I forms a part of the Master Repurchase Agreement dated as of February 19, 2002 (the "Agreement") between LIQUID FUNDING, LTD. ("Buyer") and CT LF FUNDING CORP. ("Seller"). Capitalized terms used but not defined in this Annex I shall have the meanings ascribed to them in the Agreement. 1. Other Applicable Annexes. Please select any/all of the optional Annexes below to form a part of the Agreement. The Annexes which are initialed will apply hereunder.
Initials -------- (a) Annex III (International Transactions) ________ (b) Annex IV (Party Acting as Agent) ________ (c) Annex V (Margin for Forward Transactions) ________ (d) Annex VI (Buy/Sell Back Transactions) ________ (e) Annex VII (Transactions Involving Registered Investment Companies) ________
2. "Margin Notice Deadline" means 10:00 a.m. (New York time). 3. Margin calls may be made orally and need not be confirmed in writing. 4. Definitions. The following definition shall be added to Paragraph 2: (u) "Transaction", with respect to this Master Repurchase Agreement, means all transactions under this Master Repurchase Agreement and does not include transactions under any other master repurchase agreement or any other agreement. 5. Notwithstanding the definition of Purchase Price in Paragraph 2 of the Agreement and the provisions of Paragraph 4 of the Agreement, the parties agree (i) that the Purchase Price will not be increased or decreased by the amount of any cash transferred by one party to the other pursuant to Paragraph 4(a)(i) of the Agreement and (ii) that transfer of such cash shall be treated as if it constituted a transfer of Securities (with a Market Value equal to the U.S. dollar amount of such cash) pursuant to Paragraph 4(a)(i) (including for purposes of the definition of "Additional Purchased Securities"). 6. The following 2 paragraphs shall be added to Paragraph 9 of the Agreement: (c) in the case of any Transaction for which the Repurchase Date is other than the business day immediately following the Purchase Date and with respect to which Seller does not have any existing right to substitute substantially the same Securities for the Purchased Securities, Seller shall have the right, subject to the proviso to this sentence, upon notice to Buyer, which notice shall be given at or prior to 10 a.m. (New York time) on such business day, to substitute substantially the same Securities for any Purchased Securities; provided, however, that Buyer may elect, by the close of business on the business day notice is received, or by the close of the next business day if notice is given after 10 a.m. (New York time) on such day, not to accept such substitution. In the event such substitution is accepted by Buyer, such substitution shall be made by Seller's transfer to Buyer of such other Securities and Buyer's transfer to Seller of such Purchased Securities, and after such substitution, the substituted Securities shall be deemed to be Purchased Securities. In the event Buyer elects not to accept such substitution, Buyer shall offer Seller the right to terminate the Transaction. (d) In the event Seller exercises its right to substitute or terminate under sub-paragraph (c), Seller shall be obligated to pay to Buyer, by the close of the business day of such substitution or termination, as the case may be, an amount equal to (A) Buyer's actual cost (including all reasonable out-of-pocket fees, expenses and commissions) of (i) entering into replacement transactions; (ii) entering into or terminating hedge transactions; and/or (iii) terminating transactions or substituting securities in like transactions with third parties in connection with or as a result of such substitution or termination, and (B) to the extent Buyer determines not to enter into replacement transactions, the loss incurred by Buyer directly arising or resulting from such substitution or termination. The foregoing amounts shall be solely determined and calculated by Buyer in good faith. 7. Mandatory Early Repurchase Date (a) Notwithstanding any provision of the Master Repurchase Agreement, and subject to no condition precedent, the tenth (10th) Business Day following the date on which an "Enforcement Event" (as defined below) occurs shall automatically and irrevocably become the Repurchase Date in respect of all Transactions hereunder (the "Mandatory Early Repurchase Date"), whether or not the Enforcement Event is then continuing. In the event of the occurrence of an Enforcement Event, in lieu of the delivery of the Repurchase Price by Seller on the Mandatory Early Repurchase Date, Seller shall be obliged to pay to Buyer an amount equal to the Repurchase Price as of the Mandatory Early Repurchase Date minus the value (positive or negative) of any agreement entered into by Buyer for the purpose of hedging its interest rate exposure resulting from its entry into each Transaction hereunder (the "Hedge Value"). Buyer shall promptly notify Seller of the occurrence of an Enforcement Event and of the resulting Mandatory Early Repurchase Date, which notice shall state that on the Mandatory Early Repurchase Date all Transactions will be terminated in their entirety and the amount of the Repurchase Price and Hedge Value as of the Mandatory Early Repurchase Date. Further, Buyer shall promptly notify Seller upon the downgrading of any of Buyer's debt ratings. (b) "Enforcement Event" will have the meaning specified in the Offering Circular dated November 9, 2001 for Buyer's Global Medium Term Note Program. A copy of the relevant excerpt is attached hereto as Exhibit A. (c) "Security Trustee" means The Chase Manhattan Bank, or such other person as may then be acting as security trustee for certain of Buyer's creditors. 8. Miscellaneous. (a) Non-Petition. Seller hereby agrees (which agreement shall, pursuant to the terms of this Master Repurchase Agreement, be binding upon its successors and assigns) that it shall not institute against, or join any other person in instituting against, Buyer any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding, or other proceeding under any Bermuda or United States federal or state bankruptcy or similar law, for one year and a day after the latest maturing commercial paper note, medium term note or other rated indebtedness issued by Buyer is paid. The provisions of this Paragraph 8(b) shall survive the termination of this Master Repurchase Agreement. (b) Acknowledgement of Security. Pursuant to that certain Collateral Trust and Security Agreement dated as of November 9, 2001 among Buyer, The Chase Manhattan Bank, as trustee (the "Security Trustee") and Bear Stearns Securities Corp., as securities intermediary, Buyer has granted to the Security Trustee a first priority security interest in all of Buyer's right, title and interest in and to this Master Repurchase Agreement and each Transaction hereunder. Seller acknowledges such security interest and understands that the Security Trustee has the right to enforce the rights of Buyer hereunder, including the right of Buyer to give notices to Seller, to declare a Termination Date on behalf of Buyer hereunder, to determine Market Value and to calculate the Repurchase Price and Hedge Value as of the Mandatory Early Repurchase Date, that the Security Trustee is an express third party beneficiary of this Master Repurchase Agreement and in no event will the Security Trustee incur any obligations or liabilities hereunder. (c) No Recourse. No recourse shall be had against any incorporator, shareholder, officer, director or employee of Buyer or Seller with respect to any of the covenants, agreements, representations or warranties of the other party hereto contained in this Master Repurchase Agreement. (e) Pricing Information. Seller agrees to make available to Buyer any password in the possession of Seller which Buyer may reasonably require to enable Buyer to determine the Market Value of any Purchased Security (including the cashflows due thereon). LIQUID FUNDING, LTD. CT LF FUNDING CORP. BY: /s/ DEBORAH POOLE BY: /s/ EDWARD L. SHUGRUE, III --------------------------------- ------------------------------- TITLE: Director TITLE: Vice President ------------------------------ ------------------------------- DATE: 27 February 2002 DATE: 2/28/02 ------------------------------ ------------------------------- Exhibit A Excerpt from Offering Circular (a complete copy of the Offering Circular will be provided upon request) The occurrence of any of the following events shall constitute an "Enforcement Event": (i) the occurrence of an "Event of Default" with respect to the Notes of any Series (subject to any applicable cure period); (ii) a failure of the Issuer to make a payment with respect to Commercial Paper which shall not have been cured within one (1) Business Day; (iii) the declaration of an "Early Termination Date" as a result of the occurrence of an "Event of Default" under any Hedging Transaction where the Issuer is the defaulting party; (iv) the occurrence of an "Event of Default" under any Liquidity Facility (subject to any applicable cure period); (v) any Note shall be rated below "A" or "A2" (as the case may be) by any Rating Agency which has been engaged by the Issuer to provide a rating on such Note; (vi) the occurrence of a Capital Adequacy Failure; (vii) the failure of the Interest Rate Neutrality Test to be satisfied for five (5) consecutive Business Days; or (viii) the failure of the Liquidity Sufficiency Test to be satisfied for five (5) consecutive Business Days. ANNEX I-A This Annex I-A forms a part of the Master Repurchase Agreement dated as of February 19, 2002 (the "Repurchase Agreement") between LIQUID FUNDING, LTD. ("Buyer") and CT LF FUNDING CORP. (the "Seller"). This Annex I-A shall apply to Transactions in which Liquid Funding, Ltd. is the Buyer of certain subordinated commercial mortgage-backed securities ("CMBS") issued by securitization trusts (each a "Trust") with respect to pools of commercial mortgage loans, which pools qualify under sections 860A through 860G of the Internal Revenue Code as real estate mortgage investment conduits ("REMIC"), from Seller in accordance with the terms described below (each, a "CMBS Transaction"). For the avoidance of doubt, all CMBS Transactions between Seller and Buyer will be subject to the Repurchase Agreement, Annex I, this Annex I-A (including the attached Terms Annex issued hereunder), Annex II and each confirmation under the Repurchase Agreement (collectively, the "Agreement") and each purchased CMBS shall constitute a Purchased Security under this Agreement. If there is any inconsistency between the Repurchase Agreement, a confirmation under the Repurchase Agreement, Annex I and this Annex I-A, this Annex I-A (including the Terms Annex issued hereunder) shall control. Each CMBS Transaction shall constitute a sale by Seller to Buyer of the related CMBS. Capitalized terms used but not defined in this Annex I-A shall have the meanings ascribed to them in the Repurchase Agreement or Annex I, as applicable. 1. Definitions. "Amount of Transactions" shall mean the aggregate of all Purchase Prices paid for all Purchased Securities hereunder and not repaid to the Buyer. "Business Day" shall mean each day on which commercial banks in New York City and the New York Stock Exchange are open for business. "Buyer's Margin Ratio" shall mean, with respect to each Purchased Security, the Buyer's Margin Ratio determined in accordance with the attached Terms Annex. "Margin Deficit Amount" shall mean, when referring to CMBS Transactions under the Agreement, the amount, if any, by which the aggregate of the Repurchase Prices for all Purchased Securities exceeds the aggregate of the products of (a) the applicable Buyer's Margin Ratio and (b) the Market Value of each Purchased Security. "Margin Excess Amount" shall mean, when referring to CMBS Transactions under the Agreement, the amount, if any, by which the aggregate of the Repurchase Prices for all Purchased Securities is less than the aggregate of the products of (a) the applicable Buyer's Margin Ratio and (b) the Market Value of each Purchased Security. "Market Value" shall mean with respect to all Purchased Securities, the market value determined by Buyer daily in its sole discretion acting in good faith. "Maximum Amount" shall have the meaning set forth in the Terms Annex. "Purchased Security" shall mean all Securities transferred by Seller to Buyer in a Transaction under the Agreement that have not been repurchased or liquidated pursuant to this Agreement. The term "Purchased Security" with respect to any Transaction also shall include CMBS delivered pursuant to Paragraph 4(a) of the Repurchase Agreement. "Terms Annex" means the Terms Annex attached hereto setting out certain additional terms applicable to Transactions hereunder. 2. (a) Buyer and Seller may enter into certain CMBS Transactions, subject to the terms of the Agreement. Each CMBS Transaction shall be subject to the approval of Buyer in its sole discretion. Each CMBS Transaction shall constitute a Transaction under the Repurchase Agreement. The transfer of each Purchased Security by Seller to Buyer under the Agreement shall constitute a separate Transaction and be subject to the terms and conditions set forth in the Agreement. The Purchase Price, Buyer's Margin Ratio and Pricing Rate for each Transaction shall be determined in accordance with the Terms Annex. The aggregate amount of CMBS Transactions outstanding at any time with respect to the Agreement shall not exceed the Maximum Amount. (b) Each offer by Seller to sell Securities to Buyer in a CMBS Transaction (i) shall disclose any confidentiality agreement or other agreement that might prevent Seller from disclosing or limit Seller's ability to disclose information with respect to the Security subject to such offer to Buyer and (ii) shall include a copy of any and all such agreements. Seller shall use commercially reasonable efforts to add Buyer, any entity designated by Buyer and any transferee of an interest in such Security from any of the foregoing as permitted recipients of any information which Seller receives or has the right to receive in respect of any Purchased Security. Prior to the Purchase Date, Seller shall provide Buyer with any form of confidentiality agreement that is required to be used in connection with providing Buyer with such information. 3. All Purchased Securities with respect to CMBS Transactions shall be repurchased by Seller on the Termination Date set forth in the Terms Annex, notwithstanding that a Confirmation may state a Repurchase Date other than such Termination Date; provided, however, if Buyer, in its sole discretion, enters into new CMBS Transactions with respect to the Terms Annex (including, without limitation, "rolling" any outstanding CMBS Transactions) after such date, the Agreement shall continue to control such CMBS Transactions. 4. On the Termination Date set forth in the Terms Annex, all Repurchase Prices and other amounts owed by Seller with respect to all CMBS Transactions will be due and payable and Seller shall pay all such amounts to Buyer. 5. Intentionally Omitted. -2- 6. Paragraphs 4(a) and 4(b) of the Repurchase Agreement are deleted and the following substituted therefor: "(a) Notwithstanding anything in the Agreement to the contrary, if on any day there is a Margin Deficit Amount, Buyer may by notice to Seller require Seller to (i) transfer to Buyer sufficient cash or additional securities acceptable to Buyer in its sole discretion, which cash or additional securities shall constitute Additional Purchased Securities within the meaning of Paragraph 2(b) of the Repurchase Agreement, and/or (at Seller's election) (ii) pay such amount of the Purchase Price so that, after such transfer(s) and/or payment of Purchase Price, there is no Margin Deficit Amount, provided that any such payment of the Purchase Price shall be considered an early termination of a CMBS Transaction and be subject to the payment of an Exit Fee by the Seller to the Buyer as provided in the Terms Annex. If Seller is required to transfer Additional Purchased Securities, Seller shall make such transfer by the close of the Federal Reserve wire for money transactions on the date notice is given if such notice is given before 10:00 a.m. (New York time) or, if such notice is given after 10:00 a.m. (New York time), by the close of the Federal Reserve wire for money transactions on the next Business Day. (b) Notwithstanding anything in the Agreement to the contrary, if on any day there is a Margin Excess Amount, Seller may by notice to Buyer require Buyer, at Seller's option, to transfer cash or other Purchased Securities to Seller, so that, after such transfer(s), there is no Margin Excess Amount." 7. Price Differential shall be paid periodically in the manner set out in the Terms Annex. 8. Buyer and Seller shall give notice to the other party of any change in the rating of a Purchased Security within two (2) Business Days after Buyer or Seller, as applicable, becomes aware of such change. 9. (a) Seller shall deliver to Buyer all of the Securities proposed to be purchased hereunder, and, if necessary, a complete set of all transfer documents in form sufficient to allow transfer and registration of such Purchased Security to Buyer no later than the proposed Purchase Date for the relevant Security. Seller shall deliver to Buyer the related Prospectus or Private Placement Memorandum and such other documentation as Buyer shall request no later than two (2) Business Days prior to the proposed Purchase Date for the relevant Security. (b) If an issuer (in the case of physical Purchased Securities) and/or Depository Trust Company (in the case of book entry Purchased Securities) fails or refuses to transfer or register the Purchased Securities into the name of Buyer, (i) Buyer shall have the right to cancel any CMBS Transaction with respect to such Purchased Securities and (ii) Seller agrees to pay to Buyer within five Business Days of notice (which date shall constitute a Repurchase Date) any Purchase Price paid by Buyer plus any accrued Price Differential -3- plus any actual out-of pocket costs, losses, damages or fees incurred in connection with any hedge entered into or unwound by Buyer as a result of such cancellation. 10. Seller shall provide to Buyer (a) any reports or other written information that Seller provides to its shareholders relating to the Purchased Securities within two (2) Business Days of delivery thereof by Seller and (b) any material written information received by Seller from the trustee or the master servicer for any issuer of Purchased Securities, including, without limitation, watch lists and borrower or periodic summary property financial reports but excluding (i) any periodic bond remittance reports that are otherwise available to Buyer directly from the applicable trustee and (ii) any loan files corresponding to loans that have been transferred from the applicable master servicer to the applicable special servicers, within two (2) Business Days of receipt thereof by Seller (Seller shall make items (b)(i) and (ii) available to Buyer upon Buyer's request). Seller shall notify Buyer of any material information relating to any mortgage loans underlying any Purchased Securities and any material correspondence that Seller receives with respect to any such underlying mortgage loans, including without limitation information that could materially affect the performance or Market Value of any Purchased Security. Seller shall make such notification within three (3) Business Days of Seller's receipt of such information (except in the case of information respecting the timing and amount of receipt of loan payments, Seller shall make such notification no earlier than permitted under the issuing trust's governing documentation). Seller's asset management and credit surveillance staff shall be made reasonably available to Buyer to respond to periodic inquiries from Buyer regarding the status of the Purchased Securities and the status of assets underlying the Purchased Securities. 11. Paragraph 11 of the Repurchase Agreement is amended to delete the word "or" before (vii) and to add the following after "obligations hereunder" and prior to "(each an "Event of Default")": "(viii) Seller fails to make any payment of Price Differential within one Business Days after such payment becomes due, (ix) Seller fails to comply with any other obligation to Buyer and such failure continues for a period of thirty days after notice thereof is given to Seller by Buyer, (x) Seller fails to comply with Paragraph 10 of Annex I-A and such failure continues for a period of ten days after notice thereof is given to Seller by Buyer, or (xi) Seller (1) defaults under a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of obligations under, or an early termination of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default continues for at least three Business Days if there is no applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or in part, a Specified Transaction (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); where "Specified Transaction" means (a) any transaction (including an agreement with respect thereto) now existing or hereafter entered into between Seller and any financial institution which is a rate swap transaction, basis swap, -4- forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions), (b) all other financial transactions and agreements entered into between Seller and any financial institution, including, without limitation, futures, stock lending agreements, repurchase agreements and reverse repurchase agreements, loans of any kind, purchases and sales of equity and debt securities of any kind, including mortgages, whether or not on margin, and (c) any combination of these transactions." Upon the occurrence of any Event of Default under the Agreement, the defaulting party shall give immediate notice thereof to the nondefaulting party. 12. Buyer's sole recourse under this Agreement shall be to Purchased Securities, all Purchased Securities under all Transactions under the Repurchase Agreement, any and all of Seller's right, title and interest in this Agreement, the CMBS Transactions under this Agreement, all Transactions under the Repurchase Agreement, all payments and performance due under this Agreement and the Repurchase Agreement and all other property held by or for Seller at or by the Buyer or any agent thereof, and Buyer shall have no recourse to other assets or revenues of Seller or any of its affiliates or any legal representatives, successors or assigns of any of the foregoing, except that the foregoing does not apply to damages sustained by Buyer if Seller or any affiliate of Seller has committed fraud, was grossly negligent, willfully impaired Buyer's ability to exercise any rights or remedies under this Agreement, acted in bad faith or failed to provide Buyer with any material information, in each case with respect to this Agreement or any Purchased Security; provided, however, that Seller shall have no liability for consequential, incidental, special, exemplary, punitive or similar damages. Notwithstanding the proviso at the end of the preceding sentence, Seller shall be liable for any actual costs, losses, damages and fees incurred in connection with any hedge entered into or unwound by Buyer after an Event of Default by Seller. The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement; (b) affect the validity or enforceability of, or any guaranty made in connection with, this Agreement; (c) impair the rights of Buyer to obtain the appointment of a receiver; (d) constitute a prohibition against Buyer seeking a judgment against Seller in order to commence any action or proceeding in order for Buyer to exercise its remedies against the Purchased Security, cash or property described in the first sentence of this paragraph or any payments or performance due under this Agreement; or (e) constitute a waiver of the right of Buyer to enforce the liability and obligation of Seller, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation by Buyer (including attorneys' fees and costs reasonably incurred) not incurred under this Agreement. This Section 12 shall be omitted upon the execution of a guaranty in favor of Buyer substantially in the form attached hereto as Exhibit A, provided that the Guarantor (as -5- defined in Exhibit A) is acceptable to Buyer in its absolute discretion. In the event that Seller has received a counterparty rating of B- by Standard & Poor's Investors Service, B3 by Moody's Investors Service or B- by Fitch Inc., then Buyer and Seller may enter into a new repurchase transaction (the "Subsequent Repurchase Agreement") concerning CMBS Transactions and such Subsequent Repurchase Agreement shall be in substantially the same form as this Agreement; provided, however, that (1) such Subsequent Repurchase Agreement shall provide full recourse against the Seller and all of Seller's assets for any of Seller's obligations under the Subsequent Repurchase Agreement and (2) the Relevant Spread (set forth in such Subsequent Repurchase Agreement) for each Ratings Category shall be reduced by 0.25%. 13. Seller's obligations under the Agreement consist of a single obligation, notwithstanding that the CMBS Transactions are margined on a Transaction-by-Transaction basis. Upon an Event of Default, all Purchased Securities, all cash and other property held pursuant to the Repurchase Agreement (including but not limited to all principal and interest payments received by Buyer as the owner of the Purchased Securities under all Transactions under the Repurchase Agreement), and all payments and performance due under the Repurchase Agreement may be utilized by Buyer to satisfy Seller's obligations under the Agreement. 14. Notwithstanding anything to the contrary in the Agreement, Buyer shall not be deemed to have waived any right which it may have or be deemed to have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount due and owing under the provisions of the Agreement. 15. If the Amount of Transactions exceed the Maximum Amount at any time, Seller shall repurchase sufficient Purchased Securities to reduce the Amount of Transactions to not greater than the Maximum Amount not later than the first Business Day after notice from the Buyer (which date shall constitute a Repurchase Date with respect to the Purchased Securities to be repurchased hereunder and for the purpose of Section 11(ii) of the Repurchase Agreement). 16. At all times the pool of mortgage loans relating to the Purchased Securities shall be qualified as a REMIC. If at any time any pool of mortgage loans relating to a Purchased Security is not qualified as a REMIC, then the Market Value of such Purchased Security shall be deemed to be zero. 17. To the extent Seller enters into any derivative transaction which it intends to designate as a hedge to its exposure under any Transaction for purposes of Financial Accounting Standards Board Statement 133 ("FAS 133"), Buyer agrees, if requested by Seller, to use reasonable efforts to consider any structural change to a Transaction proposed by Seller which may enable Seller to comply with the requirements of FAS 133 to designate such derivative as a hedge to such Transaction, provided that Buyer may in its absolute discretion determine not to enter into any such Transaction and Seller agrees that Buyer is not providing Seller with any advice with regard to FAS 133, Seller is acting independently in making any decisions to enter into any Transaction hereunder and Seller -6- shall hold harmless and indemnify Buyer with respect to any action or omission of Buyer pursuant to this Section 17. 18. Each party to the Agreement shall bear its own costs and expenses in connection with the negotiation and documentation of the Agreement; provided, however, that Seller shall pay the actual legal fees and expenses of outside counsel to Buyer in connection with the Agreement up to a maximum of $50,000. 19. Buyer shall provide Seller with a written confirmation for each Transaction within five business days of the Purchase Date. 20. The Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions between the parties hereto, whether verbal or written, with respect to such subject matter. LIQUID FUNDING, LTD. CT LF FUNDING CORP. BY: /s/ DEBORAH POOLE BY: /s/ EDWARD L. SHUGRUE, III ---------------------------- ------------------------------- Name: DEBORAH POOLE Name: Edward L. Shugrue, III ---------------------- ------------------------- Title: Director Title: Vice President --------------------- ------------------------ -7- Annex II Names and Addresses for Communications Between Parties TO LIQUID FUNDING, LTD.: Cedar House 41 Cedar Avenue Hamilton HM 12 Bermuda With a copy to: BEAR STEARNS BANK PLC, Investment Manager Block 8, Harcourt Centre Charlotte Way Dublin 2, Ireland Tel (353-1) 402-6358 Fax (353-1) 402-6308 TO CT LF FUNDING CORP.: 410 Park Avenue, 14th Floor New York, New York 10022 Attention: Edward L. Shugrue, III Tel (212) 628-6910 Fax (212) 655-0044 and 410 Park Avenue, 14th Floor New York, New York 10022 Attention: Geoffrey G. Jervis Tel (212) 655-0247 Fax (212) 655-0044 With a copy to: Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022 Tel (212) 318-6260 Fax (212) 318-6876 Attention: John A Cahill, Esq. EX-10 18 ex10-24b.txt EX. 10-24.B - TERMS ANNEX 3-1-05 Exhibit 10.24.b TERMS ANNEX This TERMS ANNEX, dated as of March 1, 2005, forms a part of the Master Repurchase Agreement, dated as of February 19, 2002 (the "Repurchase Agreement") between LIQUID FUNDING, LTD. (the "Buyer") and CT LF FUNDING CORP. (the "Seller"). This Terms Annex shall apply to Transactions in which Liquid Funding, Ltd. is the Buyer of certain subordinated commercial mortgage-backed securities ("CMBS") issued by securitization trusts (each a "Trust") with respect to pools of commercial mortgage loans, which pools qualify under sections 860A through 860G of the Internal Revenue Code as real estate mortgage investment conduits ("REMIC"), from Seller in accordance with the terms described below (each, a "CMBS Transaction"). For the avoidance of doubt, all CMBS Transactions between Seller and Buyer will be subject to the Repurchase Agreement, Annex I, Annex II, Annex I-A, and this Terms Annex (collectively, the "Agreement") and each purchased CMBS shall constitute a Purchased Security under this Agreement. Each CMBS Transaction shall constitute a sale by Seller to Buyer of the related CMBS. Capitalized terms used but not defined in this Terms Annex shall have the meanings ascribed to them in the Repurchase Agreement, Annex I or Annex I-A, as applicable. 1. Initial Purchased Securities and Purchase Date (a) The initial Purchased Securities subject to CMBS Transactions hereunder shall be those securities listed on Exhibit A hereto (the "Exhibit A Securities"), which Buyer shall purchase from Seller on March 1, 2005 (with respect to such Exhibit A Securities, the "Purchase Date"). The transfer of each Purchased Security by Seller to Buyer under the Agreement shall constitute a separate Transaction and shall be subject to the terms and conditions set forth in the Agreement. (b) Buyer hereby acknowledges and agrees that the Exhibit A Securities qualify as eligible Purchased Securities for CMBS Transactions hereunder. (c) The Purchase Price and Buyer's Margin Ratio specified on Exhibit A hereto for each Exhibit A Security shall remain in effect for the term of the applicable Transaction if Seller does not alter or dispose of any of such Exhibit A Securities; provided, however, that Seller may elect to terminate those Transactions with respect to the Purchased Securities identified on Exhibit A hereto as Purchased Securities No. 6, 8 and 9 prior to the Termination Date in accordance with Section 7 hereof, and such an early termination of a Transaction with respect to Purchased Security No. 6, 8 or 9 shall not affect the Purchase Price and Buyer's Margin Ratio for the remaining Exhibit A Securities subject to Transactions hereunder. 2. Determination of Pricing Rate and Payment of Price Differential (a) The Pricing Rate for each Transaction will be LIBOR plus the Relevant Spread and will be reset on each Reset Date. (b) All accrued Price Differential incurred in connection with each Transaction through the last day of the previous calendar month will be due and payable to Buyer on the Reset Date following the applicable month end. 3. Determination of Purchase Price, Margin Ratio, Margin Excess Amount and Margin Deficit Amount (a) The Purchase Price shall be determined separately for all Purchased Securities within a Ratings Category based on the Purchase Price set forth in the Applicable Table which corresponds to the Ratings Category for such Purchased Securities. (b) The Buyer's Margin Ratio shall be determined separately for each Ratings Category based on the "Buyer's Margin Ratio" set forth in the Applicable Table corresponding to such Ratings Category. (c) If there is no Applicable Table, either because the Purchased Securities have been issued by fewer than five Trusts or because the Diversity Percentage exceeds a) 15% during any time period in which the Purchased Securities have been issued by eight or more Trusts or b) 25% during any time period in which the Purchased Securities have been issued by at least five Trusts but less than eight Trusts , then the Purchase Price and Buyer's Margin Ratio will be determined by Buyer in its sole discretion. (d) Margin Excess Amounts and Margin Deficit Amounts shall each be determined separately for each Ratings Category and then aggregated. If on a Reset Date there is determined to be a Margin Excess Amount with respect to a CMBS Transaction, then Seller may at its option, in lieu of sending notice to Buyer pursuant to Paragraph 4(b) of the Repurchase Agreement, instead elect to reprice such CMBS Transaction pursuant to Section 6 hereof. 4. Change in Ratings Category of Purchased Securities (a) If the rating on a particular Purchased Security is upgraded and such upgrade results in a change in the Ratings Category of such Purchased Security, then, at Seller's request, the resulting change in the Purchase Price and the Buyer's Margin Ratio of such Purchased Security shall be effected on the following Reset Date. (b) If the rating on a particular Purchased Security is downgraded and such downgrade results in a change in the Ratings Category of such Purchased Security, then the resulting change in the Purchase Price and the Buyer's Margin -2- Ratio of such Purchased Security shall be effected automatically on the first business day after the date on which Buyer becomes aware of such downgrade. (c) If the rating on a particular Purchased Security is upgraded or downgraded and such upgrade or downgrade results in a change in the Ratings Category of such Purchased Security, then the resulting change in the Pricing Rate of such Purchased Security shall be effected automatically on the first Reset Date after the date of such upgrade or downgrade. 5. Change of Applicable Tables If a change in the number of Trusts included in the Purchased Securities or an increase or decrease of the Diversity Percentage rating causes a different Applicable Table to apply, then the resulting change in the Purchase Price and the Buyer's Margin Ratio of the applicable Purchased Securities shall be effected automatically on the first business day after the date on which Buyer becomes aware of such change. 6. Repricing If the Purchase Price of a Purchased Security is to be changed pursuant to the terms hereof, then as of the date on which such Purchase Price is to be changed (each, a "Repricing Date"), (i) the Repurchase Date with respect to the applicable Purchased Security will be accelerated automatically to the Repricing Date, (ii) the Repurchase Price and any other amounts owed by Seller with respect to such Transaction (excluding accrued Price Differential not yet due) shall be due and payable, (iii) Buyer shall be obligated to purchase such Purchased Security as a new Transaction at the new Purchase Price, and (iv) the amounts owing pursuant to subparagraphs (ii) and (iii) of this Section 6 shall be offset and any net amount shall be due and payable by Buyer or Seller, as applicable. 7. Early Termination of Transactions Seller may elect to terminate any Transaction and repurchase Purchased Securities from Buyer on five Business Days' notice. If Seller terminates any Transaction pursuant to the preceding sentence, including, without limitation, those Transactions referred to in Section 1(c) hereof, then Seller shall pay a termination fee (the "Exit Fee") on such early termination date. The Exit Fee shall be calculated as follows: the sum of (a) the product of (i) the Repurchase Price, multiplied by (ii) 0%, multiplied by (iii) an amount equal to the number of days remaining until the Repurchase Date divided by 365; plus (b) any costs, losses, damages or fees incurred in connection with any hedge entered into or unwound by Buyer in contemplation of such termination. The Seller shall pay the Exit Fee with respect to all Purchased Securities transferred to Seller on any such Repurchase Date that precedes the Termination -3- Date with respect to such Purchased Securities. The acceleration of such Repurchase Date for any reason shall not excuse Seller from paying the Exit Fee, except if such acceleration results from (i) an Event of Default where the Buyer is the defaulting party or (ii) the occurrence of an Enforcement Event. No Exit Fee shall be paid for (i) a repricing pursuant to Section 6 of this Terms Annex, or (ii) a substitution of securities as permitted under the Agreement, provided that the Exit Fee shall be payable to Buyer upon any termination resulting from Buyer's election to not accept a substitution of securities. Notwithstanding anything to the contrary in this Section 7, if the rating on a particular Purchased Security is upgraded (the "Upgraded Security"), then Seller may within 90 days of such upgrade, repurchase such Upgraded Security without paying an Exit Fee, provided that Seller substitutes such Upgraded Security with one or more Purchased Securities which (i) have an aggregate Market Value equal to or in excess of the Market Value of the Upgraded Security at the time of such substitution and (ii) have the same rating that the Upgraded Security had immediately prior to its upgrade. 8. Control (a) Seller acknowledges that Buyer will not enter into a Transaction with respect to a Purchased Security in a Ratings Category lower than Ba3/BB-/BB- unless Seller has Affirmative Control with respect to such Purchased Security. Seller shall deliver to Buyer no later than the Purchase Date for the relevant Purchased Security such documentation as Buyer may reasonably request to effect or confirm Buyer's right to exercise Affirmative Control with respect to such Purchased Security. Notwithstanding anything to the contrary herein, for so long as no Event of Default has occurred and is continuing with respect to Seller under the Agreement and any other agreement between Seller and Buyer, Buyer grants Seller a license to exercise Affirmative Control with respect to the Purchased Securities and pursuant to such license Seller shall have the sole and exclusive right to exercise Affirmative Control. Immediately upon notice by the Buyer to Seller of the occurrence of an Event of Default with respect to Seller, the foregoing license shall terminate automatically, and all rights of Affirmative Control shall automatically re-vest in Buyer until such time, if any, as such Event of Default is waived by Buyer in its sole discretion by written notice to Seller. Buyer and Seller shall enter into such agreements, give such notices and obtain such acknowledgements as may be necessary or desirable for Seller to have the right to exercise Affirmative Control prior to the occurrence of any Event of Default and for Buyer to have the right to exercise Affirmative Control upon the occurrence of such Event of Default on a Trust by Trust basis. This Paragraph 8(a) shall survive any transfer by Buyer of an interest in (including by way of pledge, sale, hypothecation, repurchase agreement or other means) the Purchased Securities and shall be binding on any transferee of the Purchased Securities and Buyer shall notify any purchaser of the Purchased Securities of this provision to the extent such transferee would otherwise have such rights. Seller shall indemnify and hold Buyer harmless from and against any and all losses, damages, -4- liabilities, obligations, penalties, judgments and awards arising from or related to claims, and to pay, on demand, all direct and indirect costs, liabilities and damages incurred by Buyer (including, without limitation, costs of collection, reasonable third-party attorneys' fees, court costs and other expenses arising from or related to the foregoing, but excluding any actual or alleged diminution in the Market Value of any of the Purchased Securities, and any consequential or punitive damages) in connection with any action or failure to take action by Seller with respect to the foregoing license of Affirmative Control ("Control Costs"). In each case, whether or not demand has been made therefor, Buyer may, in its sole discretion, treat the Control Costs as a Margin Deficit. This indemnity shall survive the termination of this Agreement. (b) If Seller does not provide Buyer with Affirmative Control with respect to any Transaction relating to a Purchased Security in a Ratings Category lower than Ba3/BB-/BB-, then (i) Buyer shall have the right to cancel such Transaction and (ii) Seller agrees to pay to Buyer within five Business Days of notice (which date shall constitute a Repurchase Date) any Purchase Price paid by Buyer plus any accrued Price Differential plus any costs, losses, damages or fees incurred in connection with any hedge entered into or unwound by Buyer as a result of such cancellation. (c) Seller may not exercise its right to terminate any Transaction and repurchase Purchased Securities pursuant to Section 7 of this Terms Annex with respect to Purchased Securities that are required by Seller for it to exercise Affirmative Control with respect to a Trust unless Seller also so accelerates with respect to all Purchased Securities issued by such Trust. 9. Certain Definitions "Affirmative Control" shall mean, with respect to any Purchased Security, the ability to exercise the rights of the Controlling Class (by whatever name denominated in the documents governing the applicable Trust) with respect to the Trust which issued such Purchased Securities or otherwise to direct, approve or consent to or vote on specified actions to be taken with respect to the underlying commercial mortgage loans or the applicable Trusts, or, if such Trust does not provide for a Controlling Class, to appoint, retain or remove the Trust's special servicer, such ability to be exercisable without interruption, regardless of any change in the Controlling Class or future reductions in the principal balance of the securities issued by the Trust. "Applicable Table" shall mean (i) on the date of this Terms Annex and until but not including such date as the portfolio of Purchased Securities under this Terms Annex ceases to be identical to that listed on Exhibit A hereto (except for changes to the portfolio of Purchased Securities listed on Exhibit A hereto due to the early termination of a Transaction as described in Section 1(c) hereof), the -5- table in Exhibit A hereto; and (ii) thereafter shall mean "Table II" during any time period in which the Purchased Securities have been issued by more than eight Trusts and the Diversity Percentage does not exceed 15% or, if Table II is not applicable, then "Table I" during any time period in which the Purchased Securities have been issued by five or more Trusts and the Diversity Percentage does not exceed 25%. "Contiguous Affirmative Control" shall mean, with respect to any Purchased Securities, the ability of the holder of Related Purchased Securities to exercise Affirmative Control, without interruption, regardless of any change in the Controlling Class or future reductions in the principal balance of the Related Purchased Securities, unless and until (i) only one Related Purchased Security remains outstanding and (ii) such Related Purchased Security no longer qualifies as the Controlling Class. "Controlling Class" shall mean, with respect to each Trust, the class of certificates issued by it that vests the holders in the aggregate of such certificates with the right to appoint, retain or remove the transaction's special servicer (and to otherwise exercise the rights of the controlling class, however denominated in the issuing Trust's governing documentation). "Diversity Percentage" shall mean (a) the Repurchase Price of all Purchased Security issued by the single Trust whose Purchased Securities have the highest aggregate Repurchase Price divided by (b) the Repurchase Price of all Purchased Securities. "LIBOR" shall mean the rate for deposits in U.S. Dollars for a period of one month (or such other period as mutually agreed upon by the Buyer and Seller) as such rate appears on Telerate Page 3750 as of 11:00 a.m., London Time, on the day that is two "London Business Day" (meaning a day on which commercial banks are open for business in London) preceding a given Reset Date. If such rate does not appear on the Telerate Page 3750, the rate for that Reset Date shall be determined by reference to "USD-LIBOR-Reference Banks." "USD-LIBOR-Reference Banks" means, for purposes of this definition, the rates at which deposits in U.S. Dollars are offered by four reference banks selected by Buyer at approximately 11:00 a.m., London time, on the day that is two London Business Days preceding a given Reset Date to prime banks in the London interbank market for a period equal to one month commencing on that Reset Date and in a representative amount. Buyer shall request the principal London office of each of the reference banks to provide a quotation of its LIBOR rate. If at least two such quotations are received, the rate for the Reset Date will be the arithmetic mean of such quotations. If fewer than two quotations are received, the rate for that Reset Date will be the arithmetic mean of the rates quoted by major banks in New York City (selected by Buyer), at approximately 11:00 a.m. New York City time on that Reset Date, for loans in U.S. Dollars to leading European banks for a period of one month commencing on that Reset Date and in a representative amount. -6- "Maximum Amount" shall equal $200,000,000. "Ratings Category" means the following groupings of ratings, each of which shall be a separate Ratings Category: (i) BBB-/Baa3/BBB- or above (ii) Ba1/BB+/BB+ (iii) Ba2/BB/BB (iv) Ba3/BB-/BB- (v) B1/B+/B+ (vi) B2/B/B (vii) B3/B-/B- (viii) Below B3/B-/B- or Not Rated The foregoing ratings are as published by Moody's Investors Service, Inc., Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. or Fitch Ratings (in that order) on Purchased Securities. If more than one rating agency rates the Purchased Securities, the lowest of the ratings shall set the Ratings Category. If either (i) no rating agency rates the Purchased Securities or (ii) any rating agency withdraws its rating of the Purchased Securities for reasons specified by such rating agency that relate to the credit or structure of such Purchased Securities, the Ratings Category "Not Rated" shall apply unless otherwise agreed upon by Buyer in its sole discretion. "Relevant Spread" means, to the extent that the LIBOR maturity is one month, for each Purchased Security the applicable amount set forth below corresponding to the Ratings Category for such Purchased Security as of the Purchase Date and on each subsequent Reset Date: Ratings ------- Category -------- BBB-/Baa3/BBB- 0.50% or above Ba1/BB+/BB+ 0.85% Ba2/BB/BB 0.85% Ba3/BB-/BB- 0.85% B1/B+/B+ 1.25% B2/B/B 1.25% B3/B-/B- 1.25% Below B3/B-/B- or Not Rated 1.70% -7- If the Buyer and Seller agree to use a LIBOR maturity other than one month, the Buyer and Seller shall use such other Relevant Spreads as are mutually agreed upon by the Buyer and Seller. "Related Purchased Securities" shall mean any CMBS issued by the issuing trust that issued the Purchased Securities. "Reset Date" shall mean the date on which LIBOR is reset with respect to a Transaction, which date shall be the first (1st) day (or, if such day is not a Business Day, the next following Business Day unless that day falls in the next calendar month, in which case that date will be the first preceding day that is a Business Day) of each calendar month or on such other date as Buyer may specify in the Confirmation in connection with such Transaction. "Termination Date" shall mean March 1, 2006. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Terms Annex as of this 1st day of March, 2005. LIQUID FUNDING, LTD. CT LF FUNDING CORP. By:/s/ Niamh Walsh By: /s/ Brian H. Oswald --------------- ------------------- Name: Niamh Walsh Name: Brian H. Oswald ----------- --------------- Title: Joint Chief Executive Officer Title: Chief Financial Officer ----------------------------- ----------------------- -8- Table I ------- (5 to 7 Trusts) (Maximum Diversity Percentage: 25%) - -------------------------------------------------------------------------------- Ratings Category Purchase Price Buyer's Margin Ratio - -------------------------------------------------------------------------------- BBB/Baa2/BBB or above 80% 82% - -------------------------------------------------------------------------------- BBB-/Baa3/BBB- 77.5% 79.5% - -------------------------------------------------------------------------------- Ba1/BB+/BB+ or above 55% 65% - -------------------------------------------------------------------------------- Ba2/BB/BB 50% 60% - -------------------------------------------------------------------------------- Ba3/BB-/BB- 50% 60% - -------------------------------------------------------------------------------- B1/B+/B+ 35% 45% - -------------------------------------------------------------------------------- B2/B/B 35% 45% - -------------------------------------------------------------------------------- B3/B-/B- 35% 45% - -------------------------------------------------------------------------------- Below B2/B-/B- or Not Rated 20% 30% - -------------------------------------------------------------------------------- Table II -------- (8 or More Trusts) (Maximum Diversity Percentage: 15%) - -------------------------------------------------------------------------------- Ratings Category Purchase Price Buyer's Margin Ratio - -------------------------------------------------------------------------------- BBB/Baa2/BBB or above 85% 87% - -------------------------------------------------------------------------------- BBB-/Baa3/BBB- 82.5% 84.5% - -------------------------------------------------------------------------------- Ba1/BB+/BB+ 67% 72% - -------------------------------------------------------------------------------- Ba2/BB/BB 67% 72% - -------------------------------------------------------------------------------- Ba3/BB-/BB- 67% 72% - -------------------------------------------------------------------------------- B1/B+/B+ 40% 50% - -------------------------------------------------------------------------------- B2/B/B 40% 50% - -------------------------------------------------------------------------------- B3/B-/B- 40% 50% - -------------------------------------------------------------------------------- Below B3/B-/B- or Not Rated 25% 35% - -------------------------------------------------------------------------------- -9- EX-10 19 ex10-25.txt EX. 10.25 - MASTER REP AG 3-4-05 Exhibit 10.25 ================================================================================ MASTER REPURCHASE AGREEMENT DATED AS OF MARCH 4, 2005 AMONG CAPITAL TRUST, INC., AS SELLER AND BANK OF AMERICA, N.A., AS BUYER AND BANC OF AMERICA SECURITIES LLC, AS BUYER ================================================================================ TABLE OF CONTENTS Page ---- 1. DEFINITIONS............................................................1 2. INITIATION; CONFIRMATION; TERMINATION; FEES...........................15 3. MARGIN MAINTENANCE....................................................22 4. INCOME PAYMENTS AND PRINCIPAL PAYMENTS................................22 5. SECURITY INTEREST.....................................................24 6. PAYMENT, TRANSFER AND CUSTODY.........................................26 7. SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED SECURITIES............................................................33 8. REPRESENTATIONS.......................................................33 9. NEGATIVE COVENANTS OF SELLER..........................................37 10. AFFIRMATIVE COVENANTS OF SELLER.......................................38 11. EVENTS OF DEFAULT; REMEDIES...........................................41 12. RECORDING OF COMMUNICATIONS...........................................46 13. SINGLE AGREEMENT......................................................46 14. NOTICES AND OTHER COMMUNICATIONS......................................47 15. ENTIRE AGREEMENT; SEVERABILITY........................................47 16. NON-ASSIGNABILITY.....................................................47 17. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................48 18. GOVERNING LAW.........................................................49 -i- 19. NO WAIVERS, ETC.......................................................49 20. USE OF EMPLOYEE PLAN ASSETS...........................................49 21. INTENT................................................................50 22. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS....................50 23. NO RELIANCE...........................................................51 24. INDEMNITY.............................................................51 25. DUE DILIGENCE.........................................................52 26. SERVICING.............................................................53 27. MISCELLANEOUS.........................................................53 -ii- EXHIBITS EXHIBIT I-A Form of Confirmation EXHIBIT I-B Form of UCC Financing Statement EXHIBIT I-C Form of UCC Financing Statement Amendment EXHIBIT II Authorized Representatives of Seller EXHIBIT III Monthly Servicer Report EXHIBIT IV Form of Custodial Delivery EXHIBIT V Form of Power of Attorney EXHIBIT VI Representations and Warranties Regarding Individual Purchased Loans EXHIBIT VII Purchased Loan Information EXHIBIT VIII Advance Procedure EXHIBIT IX Form of Re-Direction Letter EXHIBIT X Form of Servicer Notice and Agreement EXHIBIT XI Form of Bailee Agreement EXHIBIT XII Form of Request for Transaction EXHIBIT XIII Form of Notice of Prepayment -iii- MASTER REPURCHASE AGREEMENT MASTER REPURCHASE AGREEMENT dated as of March 4, 2005 (as amended, restated, supplemented or otherwise modified and in effect from time to time, this "Agreement"), between CAPITAL TRUST, INC., as seller, BANC OF AMERICA SECURITIES LLC, as buyer and BANK OF AMERICA, N.A., as buyer. From time to time Seller (defined below) and Buyers (defined below) may enter into transactions, subject to the terms and conditions hereof, pursuant to which Seller agrees to sell to Buyers and Buyers agree to purchase from Seller certain Eligible Assets (defined below) against payment by Buyers of a purchase price, with a simultaneous agreement by Buyers to sell to Seller and Seller to repurchase from Buyers such Eligible Assets at a date certain, as specified in the related Confirmation (defined below), against payment by Seller of a repurchase price determined in accordance herewith. NOW THEREFORE, the parties hereto hereby agree as follows: 1. DEFINITIONS The following capitalized terms shall have the respective meanings set forth below. "Acceptable Appraisal" shall mean, with respect to a Purchased Loan or a loan which Seller proposes to become a Purchased Loan, an appraisal acceptable to Buyers. "Accepted Servicing Practices" shall mean with respect to any Purchased Loan, those mortgage servicing practices of prudent mortgage loan servicers which service mortgage or other commercial loans of the same type as such Purchased Loan in the jurisdiction where the related Mortgaged Property is located. "Act of Insolvency" shall mean with respect to any party, (i) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency or similar law, or such party seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for such party or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election, (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment or election, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect, or (C) is not dismissed within fifteen (15) days, (iii) the making by such party of a general assignment for the benefit of creditors, or (iv) the admission in writing by such party of such party's inability to pay such party's debts as they become due. "Adjusted Total Indebtedness" shall mean Indebtedness less liabilities of Seller consisting of (i) Indebtedness in respect of which Seller has sold a participation interest to a third party ("participated debt"), to the extent that the participated debt is not reduced on the balance sheet of Seller under applicable accounting principles by the amount of such participation interest, (ii) Indebtedness issued in connection with a securitization transaction that is (A) non-recourse to Seller (other than for breaches of representations and warranties) and (B) carried as a liability on the balance sheet of Seller under applicable accounting principles by reason of Seller owning a junior security issued in connection with such securitization transaction, and (iii) Indebtedness of a fund that is managed by Seller where (A) Seller owns less than 50% of the equity of such fund, (B) such Indebtedness is non-recourse to Seller and (C) such Indebtedness is carried as a liability on the balance sheet of Seller under applicable accounting principles. "Affiliate" shall mean, when used with respect to any specified Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person. Control shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise and "controlling" and "controlled" shall have meanings correlative thereto; provided that, any Person which owns directly or indirectly 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or 10% or more of the partnership or other ownership interests of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person. "Agreement" shall have the meaning specified in the introductory paragraph of this Agreement. "Alternative Rate" shall have the meaning specified in Section 2.9 of this Agreement. "Alternative Rate Transaction" shall mean, with respect to any Pricing Rate Period, any Transaction with respect to which the Pricing Rate for such Pricing Rate Period is determined with reference to the Alternative Rate. "Applicable Spread" shall mean, with respect to a Transaction, (i) so long as no Event of Default shall have occurred and be continuing, the incremental per annum rate (expressed as a number of "basis points", each basis point being equivalent to 1/100 of 1%) specified in the Letter Agreement as being the "Applicable Spread", and (ii) after the occurrence and during the continuance of an Event of Default, the applicable incremental per annum rate described in clause (i) of this definition, plus 300 basis points (3.0%). "Approved Assignee" shall mean any Person satisfying the minimum capital, net worth and/or similar measures of financial wherewithal required to qualify as a permitted transferee of the Purchased Assets pursuant to the terms of the Purchased Loan Documents, the Securitization Documents and applicable securities laws. "Asset Margin Deficit" shall have the meaning provided in Section 3.1. -2- "Assignment of Leases" shall mean with respect to any Purchased Loan that is a Mortgage Loan, any assignment of leases, rents and profits or equivalent instrument, whether contained in the related Mortgage or executed separately, assigning to the holder or holders of such Mortgage all of the related Mortgagor's interest in the leases, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of the related Mortgaged Property as security for repayment of such Purchased Loan. "Assignment of Mortgage" shall mean, with respect to any Mortgage, an assignment of the mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related property is located to reflect the assignment and pledge of the Mortgage. "B-Notes" shall mean (a) junior notes in commercial mortgage loans having an "A/B" structure, (b) junior or senior or pari-passu participations in performing commercial mortgage loans, or (c) participations in instruments of a type referred to in the preceding clause. "Bailee" shall mean Paul, Hastings, Janofsky & Walker LLP or such other third party as Buyer may approve from time to time. "Bailee Agreement" shall mean the Bailee Agreement among Seller, Buyer and Bailee substantially in the form of Exhibit XI hereto. "Bailee's Trust Receipt" shall mean a trust receipt in the form of Attachment 2 to the Bailee Agreement to be provided by Bailee to Buyers pursuant to the Bailee Agreement. "Business Day" shall mean a day other than (i) a Saturday or Sunday, or (ii) a day in which the New York Stock Exchange or banks in the State of New York are authorized or obligated by law or executive order to be closed. When used with respect to a Reset Date, a "Business Day" shall mean a day on which banks in London, England are closed for interbank or foreign exchange transactions. "Buyers" shall refer collectively to Banc of America Securities LLC and Bank of America, N.A., and any of their respective successors. "Capital Lease" shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person or entity as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person or entity. "Cash Management Account" shall mean a segregated interest bearing account, in the name of Buyers, established at the Depository. "CDO Closing Date" shall mean the effective date of the CDO transaction of Capital Trust RE CDO 2005-1, Ltd., a [Cayman Islands Exempted Company]. "Change of Control" shall mean the occurrence of (i) a change of a majority of the members of the board of directors of Seller within any twelve (12) month period without prior consent from Buyers; or (ii) a merger, consolidation or other transaction in which a Person who is not an Affiliate and has not been previously approved by Buyers, acquires in excess of -3- 50% of the voting common equity of Seller (a "Merger"). Notwithstanding the foregoing, in the event that clause (i) or (ii) is the result of a Merger with a Person that, in the good faith sole discretion of Buyers, has an equal or superior credit profile to Seller, it shall not constitute a "Change of Control". "Closing Date" shall mean March 4, 2005. "CMBS" shall mean performing commercial mortgage-backed securities that (A) either (1) have a rating of at least "B+" from Standard and Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated securities, in each case which are acceptable to Buyers in their sole discretion and (B) are denominated in United States Dollars. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. "Collateral" has the meaning given to that term in Section 5.2 of this Agreement. "Collection Period" shall mean, with respect to each Remittance Date, the period beginning on but excluding the Cut-off Date relating to the immediately preceding Remittance Date and continuing to and including the Cut-off Date relating to such Remittance Date. "Confirmation" shall have the meaning specified in Section 2.1 of this Agreement. "Credit Approval Memo" shall mean the collateral summary prepared in accordance with the normal credit review procedures of Seller for submission to each Rating Agency with respect to each Eligible Asset for contribution to the CDO under the CDO transaction, substantially in the form provided to Buyers prior to the Closing Date or in such other form as shall be acceptable to Buyers. "Custodial Agreement" shall mean the Custodial Agreement, dated as of the date hereof, by and among the Custodian, Seller and Buyers. "Custodial Delivery" shall mean the form executed by Seller in order to deliver the Purchased Loan Schedule and the Purchased Loan File to Buyers or their designee (including the Custodian) pursuant to Section 6, a form of which is attached hereto as Exhibit IV. "Custodian" shall mean Deutsche Bank Trust Company Americas or any successor Custodian comparably rated and qualified and appointed by Buyers with the prior written consent of Seller (which consent shall not be unreasonably withheld or delayed). "Cut-off Date" shall mean the second Business Day preceding each Remittance Date. "Default" shall mean any event which, with the giving of notice, the passage of time, or both, would constitute an Event of Default. -4- "Defaulted Asset" shall mean any Eligible Asset as to which there has occurred (a) a default as to the payment of principal and/or interest and such default is continuing with respect to such Eligible Asset beyond any notice requirement or grace period, (b) a default with respect to such Eligible Asset that Buyers believe or have reason to believe will likely result in a default as to the payment of principal and/or interest on an Eligible Asset, or (c) a default as to the payment of principal and/or interest on another obligation of the same issuer that is senior or pari passu in right of payment to such Eligible Asset, and such default is continuing with respect to such obligation (without regard to any notice requirement or grace period) (but, in each case, only so long as such default has not been cured or waived). "Depository" shall mean PNC Bank, N.A. or any successor Depository comparably rated and qualified and appointed by Buyers with the prior written consent of Seller (which consent shall not be unreasonably withheld or delayed). "Diligence Materials" shall mean the Credit Approval Memo and any Supplemental Diligence Materials. "Draft Appraisal" shall mean a draft appraisal which is acceptable to Buyers. "Early Repurchase Date" shall have the meaning specified in Section 2.4 of this Agreement. "EBITDA" shall mean net income (or loss) (prior to any impact from minority interests and before deduction of preferred dividends on preferred stock, if any) determined in accordance with GAAP, plus the following (but only to the extent actually included in the determination of such net income (loss): (i) income tax expense; (ii) extraordinary or non-recurring or unrealized gains and losses; (iii) depreciation and amortization expense; and (iv) interest expense. "Eligible Assets" shall mean, collectively, the Eligible Securities and the Eligible Loans. "Eligible B Notes" shall mean B-Notes secured by liens on properties described in the definition of "Eligible Loans", in each case which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI attached hereto (except as otherwise agreed by Buyers), are otherwise acceptable to Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such participation interest or junior note are derived or securing indirectly such participation interest or junior note (including for purposes of this calculation, such participation interest or junior note and any loan senior to such participation interest or junior note and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible First Lien Loans" shall mean performing loans, or senior participations therein, secured by first liens in properties described in the definition of "Eligible Loans" which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI attached hereto (except as otherwise agreed by Buyers), are otherwise acceptable to Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property -5- securing such loan (including for purposes of this calculation, such loan and any loan secured by a first lien on the related Mortgaged Property and excluding any more junior loan) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible Loans" shall mean any of the following types of performing loans, which are otherwise acceptable to Buyers in their sole discretion and are secured directly or indirectly by or the payments on which are derived from a property that may include, but not be limited to, multifamily, retail, office, industrial, warehouse, condominium, or hospitality property (or any other property type acceptable to Buyers in the exercise of their good faith business judgment) that is located in the United States of America: (i) Eligible Mezzanine Loans; (ii) Eligible First Lien Loans; and (iii) Eligible B Notes. "Eligible Mezzanine Loans" shall mean performing loans or participations therein evidenced by mezzanine notes and secured by pledges of ownership interests in entities that directly or indirectly own properties described in the definition of "Eligible Loans" (or participation interests in such performing mezzanine loans), which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI attached hereto (except as otherwise agreed by Buyers), are otherwise acceptable to Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such mezzanine loan are derived (including for purposes of this calculation, such mezzanine loan and any loan senior to such mezzanine loan and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater than 1.05X. "Eligible Securities" shall mean (i) CMBS which are acceptable to Buyers in their sole discretion and (ii) any real estate investment trust debt securities or collateralized debt obligation securities which are not described in clause (i) but which a Buyer elects to purchase in its sole discretion. "Environmental Report" shall have the meaning specified in paragraph 12 of Exhibit VI. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and, as of the relevant date, any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor. "ERISA Affiliate" means any corporation or trade or business that is a member of any group of organizations (i) described in Section 414(b) or (c) of the Code of which Seller is a member and (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(l1) of the Code and the lien created under Section 302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of which Seller is a member. -6- "Event of Default" shall have the meaning specified in Section 11 of this Agreement. "Federal Funds Rate" shall mean, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day, (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10 a.m. (New York time) on such day or such transactions received by the Buyer from three Federal funds brokers of recognized standing selected by the Buyer in its sole discretion. "Filings" shall have the meaning specified in Section 5.3 of this Agreement. "Fixed Charge Ratio" shall mean the ratio of EBITDA to Fixed Charges. "Fixed Charges" shall mean the sum of (i) interest expense, (ii) preferred dividends required to be paid, (iii) capital lease obligations required to be paid, and (iv) payments due under any ground lease. "GAAP" shall mean with respect to the financial statements or other financial information of any Person, generally accepted accounting principles in the United States which are in effect from time to time. "Governmental Authority" shall mean any national or federal government, any state, regional, local or other political subdivision thereof with jurisdiction and any Person with jurisdiction exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Hedging Agreements" shall mean, with respect to any or all of the Purchased Assets, any futures options contract or any interest rate swap, cap or collar agreement or similar derivative instruments providing for protection against fluctuations in interest rates or the exchange of nominal interest obligations, either generally or under specific contingencies, entered into by Seller; provided, that any hedging shall be mutually agreed upon by Seller and Buyers; provided further, that should Seller and Buyers agree to hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty provided that Bank of America, N.A. provides commercially reasonable market terms. "Income" shall mean with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon. "Indebtedness" shall mean all liabilities disclosed on the publicly-filed financial statements of Seller, including, without limitation: (a) obligations created, issued or incurred by Seller for borrowed money; (b) obligations of Seller to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within 90 days of the date the respective goods are delivered or the respective services are rendered; (c) indebtedness of others secured by a Lien on the property of -7- Seller, whether or not the respective indebtedness so secured has been assumed by Seller; (d) obligations of Seller in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such person; (e) Capital Leases of Seller; and (f) indebtedness of others guaranteed by Seller. "Indemnified Amounts" and "Indemnified Parties" shall have the meaning specified in Section 24 of this Agreement. "Letter Agreement" shall mean that certain Letter Agreement, dated March 4, 2005, by and among Seller and Buyers. "LIBOR" shall mean the rate per annum calculated as set forth below: (i) On each Reset Date, LIBOR for the next Pricing Rate Period, unless otherwise requested in accordance with paragraph (ii) below, will be with respect to each day during such Pricing Rate Period the rate per annum for deposits in United States dollars for a one-month period which appears on Telerate Page 3750 (or any successor page) as of 11:00 a.m., London time, on such date; (ii) On any Reset Date on which no such rate appears on Telerate Page 3750 as described above, LIBOR for the next Pricing Rate Period will be determined on the basis of the rate per annum at which deposits in United States dollars are offered by London Branch of Bank of America, N.A. at approximately 11:00 a.m., London time, on such date to prime banks in the London interbank market for a one-month period. All percentages resulting from any calculations or determinations referred to in this definition will be rounded upwards, if necessary, to the nearest multiple of 1/100th of 1% and all U.S. dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent or more being rounding upwards). "LIBO Rate" shall mean, with respect to any Pricing Rate Period pertaining to a Transaction, a rate per annum determined for such Pricing Rate Period in accordance with the following formula (rounded upward to the nearest 1/100th of 1%): LIBOR ----------------------- 1 - Reserve Requirement "LIBOR Transaction" shall mean, with respect to any Pricing Rate Period, any Transaction with respect to which the Pricing Rate for such Pricing Rate Period is determined with reference to the LIBO Rate. "Lien" shall mean any mortgage, lien, encumbrance, charge or other security interest, whether arising under contract, by operation of law, judicial process or otherwise. "Market Value" shall mean, with respect to any Purchased Asset as of any date, the lesser of (x) the market value for such Purchased Asset on the Purchase Date for such Purchased Asset and on the date of determination, as determined by Buyers in their sole discretion exercised in good faith (including the positive or negative value of any Hedging -8- Agreements pledged with such Purchased Asset, determined by Buyers on the basis of the economic terms thereof as set forth in the related hedge documentation provided by Seller) and (y) the purchase price paid by Seller for such Eligible Asset, if applicable. The Market Value of all Purchased Assets shall be determined by Buyers on each Business Day during the term of the Agreement. Without limiting the foregoing, the Market Value may be determined to be zero for any Purchased Asset. "Maximum Facility Amount" shall mean (a) prior to the CDO Closing Date, $150,000,000, and (b) thereafter, $75,000,000. "Mezzanine Borrower" shall mean the borrower under a Mezzanine Note. "Mezzanine Note" shall mean a note or other evidence of indebtedness of the owner or owners of all equity or ownership interests in an underlying real property owner secured by a pledge of such ownership interests. "Monthly Servicer Report" shall mean a monthly report of the Servicer in the form of Exhibit III. "Mortgage" shall mean a mortgage, deed of trust, deed to secure debt or other instrument, creating a valid and enforceable lien on or an ownership interest in an estate in fee simple or leasehold estate in real property and the improvements thereon, securing a mortgage note or similar evidence of indebtedness. "Mortgage Note" shall mean a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property" shall mean the real property securing repayment of the debt evidenced by a Mortgage Note. "Mortgagor" shall mean the obligor on a Mortgage Note and the grantor of the related Mortgage. "Multiemployer Plan" shall mean a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been, or were required to have been, made by Seller or any ERISA Affiliate and which is covered by Title IV of ERISA. "New Asset" shall mean an Eligible Loan or Eligible Security that Seller proposes to be included as a Purchased Asset. "Originated Loan" shall mean any Eligible Loan whose Purchased Loan Documents were prepared by Seller or an Affiliate controlled by Seller. "Permitted Purchased Loan Modification" shall mean any modification of a Purchased Loan, other than a modification which (1) amends or modifies the interest rate, principal amount, maturity date or any other financial or economic term (including, but not limited to, the amortization schedule) of a Purchased Loan, (2) extends any payment date for the payment of such principal or interest, (3) amends, modifies or waives any cash management or -9- reserve account requirements of a Purchased Loan, (4) releases or subordinates any portion of the collateral securing such Purchased Loan, (5) waives any foreclosure rights with respect to any portion of the collateral securing such Purchased Loan, (6) releases or modifies any guarantee or (7) modifies the terms of any provisions applicable to casualty or condemnation proceeds. "Person" shall mean an individual, corporation, limited liability company, business trust, partnership, joint tenant or tenant-in-common, trust, unincorporated organization, or other entity, or a federal, state or local government or any agency or political subdivision thereof. "Plan" means an employee benefit or other plan established or maintained by Seller or any ERISA Affiliate during the five year period ended prior to the date of this Agreement or to which Seller or any ERISA Affiliate makes, is obligated to make or has, within the five year period ended prior to the date of this Agreement, been required to make contributions and that is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code, other than a Multiemployer Plan. "Pre-Existing Loan" shall mean any Eligible Loan that is not an Originated Loan. "Price Differential" shall mean, with respect to any Transaction as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Repurchase Price for such Transaction on a 360-day-per-year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyers with respect to such Transaction). "Pricing Rate" shall mean, for any Pricing Rate Period, an annual rate equal to the LIBO Rate for such Pricing Rate Period plus the relevant Applicable Spread, subject to adjustment and/or conversion as provided in Sections 2.9 and 2.10. "Pricing Rate Period" shall mean, (a) in the case of the first Pricing Rate Period with respect to any Transaction, the period commencing on and including the Purchase Date for such Transaction and ending on and excluding the following Reset Date, and (b) in the case of any subsequent Pricing Rate Period, the period commencing on and including such Reset Date and ending on and excluding the following Reset Date; provided, however, that in no event shall any Pricing Rate Period end subsequent to the Termination Date. "Principal Payment" shall mean, with respect to any Purchased Assets, any payment or prepayment of principal received by the Depository in respect thereof. "Purchase Date" shall mean the date on which Purchased Assets are to be sold by Seller to Buyers hereunder. "Purchase Percentage" shall mean, with respect to any Transaction as of any day, the "Purchase Percentage" specified in the Letter Agreement. -10- "Purchase Price" shall mean, with respect to any Purchased Assets, (i) initially the price at which such Purchased Assets are transferred by Seller to Buyers on the applicable Purchase Date and (ii) thereafter, such price increased by the amount of any cash transferred by Buyers to Seller pursuant to Section 3 hereof or decreased by any amounts received under Section 4 hereof. The Purchase Price as of any Purchase Date for any Purchased Assets shall be an amount (expressed in United States Dollars) equal to the product obtained by multiplying (A) the Market Value of such Purchased Assets by (B) the Purchase Percentage. "Purchased Assets" shall mean, collectively, the Purchased Securities and the Purchased Loans. "Purchased Loan Documents" shall mean, with respect to a Purchased Loan, the documents comprising the Purchased Loan File for such Purchased Loan. "Purchased Loan Information" shall mean, with respect to each Purchased Loan, the information set forth in Exhibit VII attached hereto. "Purchased Loan File" shall mean the documents specified as the "Purchased Loan File" in Section 6.5 together with any additional documents and information required to be delivered to Buyers or their designee (including the Custodian) pursuant to this Agreement. "Purchased Loan Schedule" shall mean a schedule of Purchased Loans attached to each Trust Receipt and Custodial Delivery containing information substantially similar to the Purchased Loan Information. "Purchased Loans" shall mean (i) with respect to any Transaction, the Eligible Loans sold by Seller to Buyers in such Transaction until such Eligible Loans are repurchased pursuant to this Agreement and (ii) with respect to the Transactions in general, all Eligible Loans sold by Seller to Buyers and any additional collateral delivered by Seller to Buyers pursuant to Section 3 of this Agreement until such Eligible Loans are repurchased pursuant to this Agreement. "Purchased Securities" shall mean, (i) with respect to any Transaction, the Eligible Securities sold by Seller to Buyers in such Transaction until such Eligible Securities are repurchased pursuant to this Agreement, and (ii) with respect to the Transactions in general, all Eligible Securities sold by Seller to Buyers and any additional collateral delivered by Seller to Buyers pursuant to Section 3 of this Agreement until such Eligible Securities are repurchased pursuant to this Agreement. Whenever Purchased Securities are rated by more than one Rating Agency and a split rating applies to such Purchased Securities (i.e., one Rating Agency rates such Purchased Securities at a lower rating level than the other of such Rating Agencies), then for all purposes of this Agreement where a rating is to be selected, the lower of the ratings shall apply. "Qualifying Assignee" shall mean a Person that provides commercial mortgage warehouse facilities acceptable to Buyer, provided that prior to the occurrence of an Event of Default, none of the following entities shall constitute a "Qualifying Assignee": (i) iStar Financial and its Affiliates; -11- (ii) Anthracite Carbon Fund, together with any successor funds, to the extent such funds are in the same business as their predecessor fund and its Affiliates; (iii) DB Realty Mezzanine Investment Fund I LLC and DB Realty Mezzanine Investment Fund II LLC, together with any successor funds, to the extent such funds are in the same business as their predecessor fund; (iv) Brascan and its Affiliates; (v) Guggenheim Structured Real Estate Operating Company, LLC and its Affiliates; (vi) SL Green/Gramercy Capital and their Affiliates; (vii) Arbor Commercial Mortgage LLC and its Affiliates; (viii) CW Capital and its Affiliates; (ix) Fortress/Draw Bridge and its Affiliates; (x) NorthStar Realty Finance Corporation and its Affiliates; (xi) JE Roberts and its Affiliates; and (xii) Whitehall and its Affiliates. "Rating Agency" shall mean either of Fitch Inc. or Standard & Poor's. "Relevant System" shall mean (a) The Depository Trust Company in New York, New York, or (b) such other clearing organization or book-entry system as is designated in writing by Buyers. "REMIC" shall mean a real estate mortgage investment conduit, within the meaning of Section 860D(a) of the Code. "Remittance Date" shall mean the twenty-first (21st) calendar day of each month, or the next succeeding Business Day, if such calendar day shall not be a Business Day. "Repurchase Date" shall mean, with respect to each Purchased Asset, the date that is the earlier of (i) the 364th day (including the Purchase Date) since such Purchased Asset was sold to Buyers by Seller and (ii) the Termination Date. "Repurchase Price" shall mean, with respect to any Purchased Assets as of any date, the price at which such Purchased Assets are to be transferred from Buyers to Seller upon termination of the related Transaction in whole or in part; such price will be determined in each case as the sum of the Purchase Price of such Purchased Assets and the Price Differential with respect to such Purchased Assets as of the date of such determination, minus all Income and cash actually received by Buyers in respect of such Transaction pursuant to Sections 3, 4.2, 4.3, 4.4, and 4.5 of this Agreement. -12- "Requirement of Law" shall mean any law, treaty, rule, regulation, code, directive, policy, order or requirement or determination of an arbitrator or a court or other Governmental Authority whether now or hereafter enacted or in effect. "Reserve Requirement" shall mean, with respect to any Pricing Rate Period, the aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect during such Pricing Rate Period (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System or other governmental authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of such Board of Governors) maintained by Buyers. "Reset Date" shall mean two Business Days prior to the twenty-first (21st) calendar day of each month, provided that if such day is not a Business Day, the "Reset Date" shall be the first Business Day prior to the twenty-first (21st) calendar day of such month. "Securitization Documents" shall mean, with respect to any Eligible Securities, any pooling and servicing agreements, special servicing agreements or other agreements governing the issuance and administration of such Eligible Securities and any offering document used in the distribution and sale of such Eligible Securities (including, without limitation, the preliminary and final private placement memorandum, prospectus and/or offering memorandum). "Seller" shall mean Capital Trust, Inc., a corporation organized under the laws of the State of Maryland. "Servicer" shall mean Midland Loan Services, Inc. or any other servicer engaged by Seller in respect of the Purchased Loans, which other servicer (a) has a servicer rating of not less than "CPS2/CSS2" from Fitch, Inc. and not less than "Above Average" from Standard & Poor's, or (b) shall have been approved by Buyers in their sole discretion exercised in good faith. "Servicer Notice and Agreement" shall have the meaning specified in Section 26.5 of this Agreement. "Servicing Agreement" has the meaning specified in Section 26.2 of this Agreement. "Servicing Records" has the meaning specified in Section 26.2 of this Agreement. "Specified Data" shall mean each certificate, document or financial or similar statement furnished to Buyers by or on behalf of Seller that provides information (other than summary information based upon documents available to Buyers) relating to Seller or the Purchased Assets (i) as required by the terms of the Agreement (e.g., financial statements of Seller) or (ii) in response to a specific request from Buyers for such information as contemplated by the Agreement. -13- "Standard & Poor's" shall mean Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. "Stressed DSCR" shall mean, with respect to each Eligible Asset, the stressed debt service coverage ratio as calculated in accordance with Fitch Inc.'s then current criteria. "Stressed LTV" shall mean, with respect to each Eligible Asset, the stressed loan-to-value ratio as calculated in accordance with Standard & Poor's criteria. "Subsidiary" shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. "Supplemental Diligence Materials" shall mean, with respect to any New Assets, any source documentation or supporting information concerning the New Assets that Buyers shall reasonably request. "Survey" shall mean a survey of a Mortgaged Property in form and content satisfactory to Buyers and the company issuing the Title Policy for such Mortgaged Property. "Table Funded Purchased Loan" shall mean a Purchased Loan which is sold to Buyers simultaneously with the origination or acquisition thereof, which origination or acquisition is financed in part with the Purchase Price, and which may be, pursuant to Seller's request, paid directly to Seller for disbursement in connection with such origination or acquisition. A Purchased Loan shall cease to be a Table Funded Purchased Loan after the Custodian has delivered a Trust Receipt to Buyers certifying their receipt of the Purchased Loan File therefor. "Table Funded Trust Receipt" shall have the meaning given to such term in the Custodial Agreement. "Tangible Net Worth" shall mean, with respect to Seller, as of any date of determination, the amounts which would be included under equity on a consolidated balance sheet of Seller and its Subsidiaries at such date in accordance with GAAP, less the consolidated net book value of all assets of Seller and its Subsidiaries (to the extent reflected as an asset in the balance sheet of Seller or any Subsidiary at such date) which will be treated as intangibles under GAAP; provided, that residual securities issued by Seller or its Subsidiaries shall not be treated as intangibles for purposes of this definition. "Telerate Page 3750" shall mean the display page currently so designated on the Dow Jones Service (or such other page as may replace that page on that service for the purpose of displaying comparable rates or prices). "Termination Date" shall mean March 4, 2010. -14- "Title Policy" shall have the meaning specified in paragraph 8 of the first paragraph of Exhibit VI. "Total Indebtedness" shall mean, for any period, the aggregate Indebtedness of Seller during such period. "Transaction" shall mean any transaction Buyers and Seller may enter into from time to time pursuant to which Seller agrees to transfer to Buyers Purchased Assets against the transfer of funds by Buyers, with a simultaneous agreement by Buyers to transfer to Seller such Purchased Assets at a date certain or on demand against the transfer of funds by Seller. "Transaction Conditions Precedent" shall have the meaning specified in Section 2.1 of this Agreement. "Transaction Documents" shall mean, collectively, this Agreement, any applicable Schedules or Exhibits to the Agreement, the Custodial Agreement and all Confirmations executed pursuant to this Agreement in connection with specific Transactions. "Trustee" shall mean, with respect to any Eligible Securities, the trustee under the Securitization Documents applicable to such Eligible Securities. "Trust Receipt" shall mean a trust receipt issued by Custodian to Buyers confirming the Custodian's possession of certain Purchased Loan Files which are the property of and held by Custodian for the benefit of Buyers (or any other holder of such trust receipt). "UCC" shall have the meaning specified in Section 5.3 of this Agreement. "Underwriting Guidelines" shall mean the underwriting guidelines of Seller as in effect on the date of this Agreement. "Underwriting Issues" shall mean, with respect to any New Asset, all material information that has come to Seller's attention that, based on the making of reasonable inquiries and the exercise of reasonable care and diligence under the circumstances, would be considered a materially "negative" factor (either separately or in the aggregate with other information) including but not limited to, to the extent of Seller's knowledge, whether any of the Purchased Assets were rejected for inclusion in, or repurchased from, any securitization transaction, warehouse loan facility or a repurchase transaction due to the breach of a representation and warranty), or a material defect in loan documentation or closing deliveries (such as any absence of any material Purchased Loan Document(s)), to a reasonable institutional mortgage buyer in determining whether to originate or acquire the New Asset in question. "Unused Fee" shall have the meaning specified in Section 2.6 of this Agreement. 2. INITIATION; CONFIRMATION; TERMINATION; FEES 2.1 (a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the "Transaction Conditions Precedent" specified below) Buyers shall from time to time enter into Transactions with Seller on any Business Day from and -15- including the date of this Agreement to but excluding the Termination Date and pursuant to any such Transaction, Seller shall be entitled to sell, repurchase and re-sell any assets in accordance with this Agreement; provided, however, that the aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Assets as of the date of determination) for all Transactions shall not exceed the Maximum Facility Amount. An agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below. Seller shall give Buyers written notice of each proposed Transaction and Buyers shall inform Seller of their determination with respect to any assets proposed to be sold to Buyers by Seller solely in accordance with Exhibit VIII attached hereto. Buyers shall have the right to review all Eligible Loans and Eligible Securities proposed to be sold to Buyers in any Transaction and to conduct its own due diligence investigation of such Eligible Loans and Eligible Securities as Buyers determine. Buyers shall be entitled to make a determination, in their sole discretion, that they shall not purchase any or all of the assets proposed to be sold to Buyers by Seller. (b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyers), Buyers shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto pertaining to such Transaction (a "Confirmation"). (c) Each Confirmation shall describe the Purchased Asset(s) which shall be the subject of a Transaction and, in this connection, shall set forth: (A) the name of the borrower or issuer with respect to each related Purchased Asset, (B) a description (including the date) of the loan agreement or other document, agreement or instrument pursuant to which each related Purchased Asset is made or governed, (C) the aggregate outstanding principal amount of each related Purchased Asset, (D) the name of the Buyer that will purchase each related Purchased Asset and the name of the Seller, and (E) all additional information required by Exhibit I attached hereto. (d) On the Purchase Date for each Transaction which shall be not less than three (3) Business Days (unless otherwise agreed by Buyers) following the approval of an Eligible Loan or an Eligible Security by Buyers in accordance with Exhibit VIII hereto and delivery by Seller of a Request for Transaction in the form of Exhibit XII hereto, each Purchased Asset subject to such Transaction shall be transferred to the applicable Buyer or its agent against the transfer of the Purchase Price to an account of Seller. (e) On the Purchase Date for a Transaction, Seller shall countersign and deliver to Buyers a counterpart of the related Confirmation. Each Confirmation shall be deemed incorporated herein by reference with the same effect as if set forth herein at length. -16- (f) With respect to any Transaction, the Pricing Rate shall be determined initially on the Purchase Date applicable to such Transaction, and shall be reset on each Reset Date for the related Pricing Rate Period. Buyers or their agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Reset Date for the related Pricing Rate Period and notify Seller and Custodian of such rate for such period on the Reset Date. For purposes of this Section 2.1, the "Transaction Conditions Precedent" shall be deemed to have been satisfied with respect to any proposed Transaction if: (A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction; (B) the representations and warranties made by Seller in each of the Transaction Documents with respect to each Eligible Asset to be transferred on any Purchase Date shall be true and correct in all material respects as of the Purchase Date for such Transaction; (C) Buyers shall have received, reviewed and approved the applicable Credit Approval Memo and, if requested, Supplemental Diligence Materials; (D) Buyers' counsel shall have completed in full any legal review requested by Buyers; (E) Buyers shall have (A) determined, in accordance with the applicable provisions of Section 2.1 of this Agreement, that the assets proposed to be sold to Buyers by Seller in such Transaction are Eligible Securities and/or Eligible Loans, (B) determined that the assets proposed to be sold to Buyers by Seller in such Transaction (i) do not have Stressed LTV greater than 95% and (ii) Stressed DSCR is equal to or greater than 1.05X, (C) completed all legal due diligence in respect of such Eligible Securities and/or Eligible Loans and (D) obtained internal credit approval for the inclusion of such Eligible Securities and/or Eligible Loans as Purchased Assets in a Transaction; (F) Buyers shall have received a Bailee's Trust Receipt or a Trust Receipt from Custodian, as applicable, for the relevant Eligible Asset, in form and substance acceptable to Buyers; and (G) the Purchase Price of any individual asset proposed to be sold to Buyers by Seller in such Transaction shall not be less than $1,000,000 nor greater than $27,200,000. 2.2 Seller may enter into a Transaction hereunder and sell a Purchased Asset to Buyers for less than the Maximum Purchase Price that Seller would be permitted to receive hereunder. Thereafter, so long as no Default or Event of Default shall have occurred and be continuing, Seller may obtain from Buyers the balance of any Purchase Price then available in respect of a Purchased Asset (after giving effect to any decrease in Market Value of such Purchased Asset). In addition, so long as no Default or Event of Default shall have occurred and be continuing, and subject to the terms and conditions of this Agreement, including Section 2.11 of this Agreement, Seller may repay the Repurchase Price in whole or in part and obtain a re-advance of Repurchase Price in respect of a Purchased Asset. In connection with any -17- prepayment of Repurchase Price on a date other than a Remittance Date, Seller shall deliver to Buyers a Notice of Prepayment in the form of Exhibit XIII. 2.3 Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller no more than two (2) Business Days after the date such Confirmation is received by Seller. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyers no more than two (2) Business Days after such Confirmation is received by Seller. 2.4 No Transaction shall be terminable on demand by Buyers, other than (1) upon the occurrence and during the continuance of an Event of Default by Seller, (2) to the extent an Eligible Asset becomes a Defaulted Asset, and/or (3) a failure by Seller to correct all exceptions noted on the Bailee's Trust Receipt or the Trust Receipt from Custodian, as applicable, as determined in Buyers' sole discretion within five (5) Business Days. Seller shall be entitled to terminate a Transaction in whole or in part on demand and repurchase all or a portion of the Purchased Assets subject to a Transaction on any Business Day prior to the Repurchase Date (an "Early Repurchase Date"); provided, however, that: (a) Seller repurchases on such Early Repurchase Date, all or the portion of the Purchased Assets subject to such Transaction which Seller has elected to repurchase; (b) other than with respect to the payoff of an underlying Mortgage Note, Mezzanine Note, B-Note, or another Purchased Asset, Seller notifies Buyers in writing of its intent to terminate such Transaction and repurchase such Purchased Assets no later than five (5) Business Days prior to such Early Repurchase Date; and (c) on such Early Repurchase Date, Seller pays to Buyers an amount equal to the sum of the Repurchase Price for such Transaction (or, in the case of a termination of a Transaction in part an amount acceptable to Buyers in their sole discretion, but not more than such Repurchase Price), and any other amounts payable under this Agreement (including, without limitation, Section 2.12 of this Agreement) with respect to such Transaction against transfer to Seller or its agent of such Purchased Assets. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Assets to be repurchased on such Early Repurchase Date. 2.5 On the Repurchase Date for a Transaction, termination of such Transaction will be effected by transfer to Seller or its agent of the applicable Purchased Assets and any Income in respect thereof received by Buyers (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 4 of this Agreement) against the simultaneous transfer of the applicable Repurchase Price to an account of Buyers. 2.6 Seller shall comply with the provisions of the Letter Agreement, on or prior to the Closing Date. In addition, Seller shall pay Buyers an unused fee (an "Unused Fee") in an amount equal to ten (10) basis points (0.10%) per annum on the unused Maximum Facility -18- Amount, which Unused Fee shall be payable quarterly in arrears during the term of this Agreement on the first Remittance Date occurring after receipt by Seller of the applicable invoice therefor; provided that the Unused Fee shall be assessed against the following percentages of the unused Maximum Facility Amount for the following periods:
------------------------------------------------------------------------------------ Period Percentage of Unused Facility Amount Against Which Unused Fee is Assessed ------------------------------------------------------------------------------------ Closing Date ("CD") to and 0% including 90 days thereafter ------------------------------------------------------------------------------------ 91 days after CD to and including 33% 180 days after CD ------------------------------------------------------------------------------------ 181 days after CD to and including 66% 270 days after CD ------------------------------------------------------------------------------------ Thereafter 100% ------------------------------------------------------------------------------------
2.7 Seller shall also reimburse Buyers for all reasonable fees, costs, disbursements and expenses of legal counsel associated with the preparation, negotiation and consummation of this Agreement and related documentation, provided, that the onset of such fees, costs, disbursements and for which Seller shall be liable shall not exceed $75,000. Subject to the prior sentence and to the extent not previously covered in this Section 2.7, Seller shall reimburse Buyers for all costs and expenses incurred by Buyers for establishing and maintaining the facility created by this Agreement, including all out-of-pocket expenses for due diligence, travel and fees and disbursements of its counsel; provided, that the onset of due diligence fees and expenses related to or otherwise connected with each Eligible Asset for which Seller shall be liable shall be $7,500. 2.8 No more than once in each calendar quarter, Seller may by notice to Buyers reduce the Maximum Facility Amount to an amount not less than the aggregate amount of all then-open Transactions. Once reduced, the Maximum Facility Amount may not be increased. 2.9 If prior to the first day of any Pricing Rate Period with respect to any Transaction, (i) Buyers shall have determined (which determination shall be conclusive and binding upon Seller) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii) the LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyers (as determined and certified by Buyers) of making or maintaining Transactions during such Pricing Rate Period, Buyers shall give facsimile or telephonic notice thereof to Seller as soon as practicable thereafter. If such notice is given, the Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until such notice has been withdrawn by Buyers, shall be a per annum rate (the "Alternative Rate") equal to a rate determined based on an index approximating -19- the behavior of LIBOR as reasonably determined by Buyers (which may be the Federal Funds Rate). 2.10 Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyers to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyers hereunder to enter into new Transactions and to continue Transactions as such shall forthwith be canceled, and (b) the Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of the then current Pricing Rate Period or within such earlier period as may be required by law. If any such conversion of a Transaction occurs on a day which is not the last day of the then current Pricing Rate Period with respect to such Transaction, Seller shall pay to Buyers such amounts, if any, as may be required pursuant to Section 2.9 of this Agreement. 2.11 Upon demand by Buyers, Seller shall indemnify Buyers and hold Buyers harmless from any actually-incurred net loss or expense (not to include any lost profit or opportunity) (including, without limitation, attorneys' fees and disbursements of external counsel) which Buyers may sustain or incur as a consequence of (i) default by Seller in selling Eligible Securities or Eligible Loans after Seller has notified Buyers of a Purchase Note in a Request for Transaction for a period of more than three Business Days and Buyers have agreed to purchase such Eligible Securities or Eligible Loans in accordance with the provisions of this Agreement (including also, but not limited to, a default by Seller in selling Eligible Securities and Eligible Loans on the Purchase Date as set forth in an irrevocable notice in accordance with Section 2.1 hereto), (ii) any payment of the Repurchase Price on any day other than a Remittance Date or (iii) default by Seller in terminating any Transaction more than three Business Days after Seller has given a notice in accordance with Section 2.4 of a termination of a Transaction (in each case of (i)-(iii) above, including, without limitation, any such loss or expense in the nature of allocable breakage cost attributable thereto arising from the reemployment of funds obtained by Buyers to maintain Transactions hereunder or from fees payable to terminate the deposits from which such funds were obtained). As a condition to Seller's liability under this paragraph, Buyers shall promptly deliver to Seller a certificate as to such costs, losses, damages and expenses, setting forth the calculations therefor and including any available supporting documentation, which certificate shall be conclusive and binding on Seller in the absence of manifest error. 2.12 If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyers with any directive from any central bank or other Governmental Authority having jurisdiction over Buyers made subsequent to the date hereof: (a) shall subject Buyers to any tax of any kind whatsoever with respect to the Transaction Documents, any Purchased Asset or any Transaction, or change the basis of taxation of payments to Buyers in respect thereof (except for changes in the rate of tax on Buyers' overall net income); (b) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or -20- for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyers which is not otherwise included in the determination of the LIBO Rate hereunder; or (c) shall impose on Buyers any other condition; and the result of any of the foregoing is to increase the cost to Buyers, by an amount which Buyers deem to be material, of entering into, continuing or maintaining Transactions or to reduce any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Buyers, within ten (10) Business Days after written submission, any additional amounts necessary to compensate Buyers for such increased cost or reduced amount receivable. If Buyers become entitled to claim any additional amounts pursuant to this Section 2.12, they shall promptly notify Seller of the event by reason of which they have become so entitled. As a condition to Seller's liability under this paragraph, Buyers shall promptly deliver to Seller a certificate as to the calculation of any additional amounts payable pursuant to this subsection and including any available supporting documentation, which certificate shall be conclusive and binding upon Seller in the absence of manifest error. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Assets. 2.13 If either Buyer shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Buyer or any corporation controlling such Buyer with any directive regarding capital adequacy from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Buyer's or such corporation's capital as a consequence of its obligations hereunder to a level below that which such Buyer or such corporation could have achieved but for such adoption, change or compliance by an amount which is deemed by such Buyer to be material, then from time to time, within ten (10) Business Days after written submission by such Buyer to Seller of a written request therefore, Seller shall pay to such Buyer such additional amount or amounts as will compensate such Buyer for such reduction. As a condition to Seller's liability under this paragraph, such Buyer shall promptly deliver to Seller a certificate as to the calculation of any additional amounts payable pursuant to this subsection and including any available supporting documentation, which certificate shall be conclusive and binding upon Seller in the absence of manifest error. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Assets. 2.14 Without prejudice to any other rights which Seller may have under this Agreement, upon any tender by Seller of payment of the aggregate Repurchase Price for all Purchased Assets and all other amounts due and payable to Buyers under this Agreement, all of Buyers' right, title and interest in such Purchased Assets shall be deemed transferred to Seller, and Buyers shall deliver, or cause the delivery of, such Purchased Assets to Seller. 2.15 On any Repurchase Date, termination of the applicable Transactions will be effected by transfer to Seller or its agent of the Purchased Assets and any Income in respect thereof received by Buyers (and not previously credited or transferred to, or applied to the -21- obligations of, Seller pursuant to Section 4 of this Agreement) against the simultaneous transfer of the Repurchase Price to an account of Buyers. 3. MARGIN MAINTENANCE 3.1 If at any time, the Market Value of any Purchased Asset shall be less than the Purchase Price less any unpaid Price Differential for such Purchased Asset (an "Asset Margin Deficit"), Seller shall transfer cash to Buyers so that the sum obtained by adding the Market Value of such Purchased Asset plus such cash shall equal or exceed the Purchase Price less any unpaid Price Differential for such Purchased Asset as of the same date; provided that, so long as no Default or Event of Default has occurred and is continuing, to the extent that the Market Value of one or more other Purchased Assets (the "Other Assets") shall exceed the aggregate Purchase Price for the Purchased Asset in respect of which an Asset Margin Deficit exists, then the amount of such Asset Margin Deficit shall be satisfied in part or in whole by the Purchase Price for the Other Assets being deemed to increase to an amount not to exceed the Market Value of the Other Assets (and Seller shall remain liable to provide Buyers with any additional cash that may be required so that, after giving effect to such increase in the Purchase Price for such Other Assets and the provision of any additional cash, no Asset Margin Deficit shall exist). Buyers shall provide Seller with a reconciliation statement setting forth any such adjustment to the Purchase Price of the Other Assets. Seller's failure to cure any Asset Margin Deficit as required by the preceding sentence shall constitute an Event of Default under the Transaction Documents and shall entitle Buyers to exercise their remedies under Section 11 of the Agreement (including, without limitation, the liquidation remedy provided for in Section 11.2(e) of this Agreement). 3.2 If any Asset Margin Deficit exists on any Business Day, Seller shall transfer the cash required to be transferred pursuant to Section 3.1 by no later than the close of business in the relevant market on the next Business Day following such notice. Notice required pursuant to Section 3.1 of this Agreement may be given by any means of facsimile transmission and shall be delivered in accordance with the terms of this Agreement. The failure of either Buyer on any one or more occasions, to exercise its rights under this Section 3 shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of such Buyer to do so at a later date. Seller agrees that any failure or delay by a Buyer to exercise its rights under this Section 3 shall not limit such Buyer's rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller. 3.3 Any cash transferred to Buyers pursuant to Section 3.1 of this Agreement on account of an Asset Margin Deficit with respect to any Purchased Asset shall be applied to reduce the Repurchase Price for such Purchased Asset under the relevant Transaction. 4. INCOME PAYMENTS AND PRINCIPAL PAYMENTS 4.1 The Cash Management Account shall be established at the Depository concurrently with the execution and delivery of this Agreement by Seller and Buyers. Buyers shall have sole dominion and control over the Cash Management Account. Seller shall cause all Income in respect of the Purchased Assets and any payments in respect of associated Hedging Agreements to be deposited directly into the Cash Management Account. Buyers shall instruct -22- the Depository to maintain all amounts in the Cash Management Account in an interest bearing account and, so long as no Event of Default shall have occurred and be continuing, to pay all investment income earned thereon to Seller. All such Income and investment income shall be remitted by the Depository in accordance with the applicable provisions of Sections 4.2, 4.3, 4.4 and 4.5 of this Agreement. 4.2 With respect to Purchased Loans, Seller shall deliver to each Mortgagor, issuer of a participation, borrower under a Purchased Loan or other applicable party making payments on a Purchased Loan an irrevocable direction letter in the form attached as Exhibit IX to this Agreement instructing the Mortgagor, issuer of a participation, borrower other applicable party to pay all Income under the related Purchased Loan to the Cash Management Account and shall provide to Buyers proof of such delivery. If a Mortgagor, issuer of a participation, borrower or other applicable party forwards any Income with respect to a Purchased Loan to Seller rather than directly to the Cash Management Account, Seller shall (i) deliver an additional irrevocable direction letter to the applicable Mortgagor, issuer of a participation, borrower or other party and make other commercially reasonable efforts to cause such Mortgagor, issuer of a participation, borrower or other applicable party to forward such amounts directly to the Cash Management Account and (ii) within one Business Day deposit in the Cash Management Account any such amounts and pending such delivery, hold such amounts in trust for Buyers. 4.3 Subject to Section 4.4 and 4.5, all Income and all scheduled Principal Payments received by the Depository in respect of the Purchased Assets and the associated Hedging Agreements during each Collection Period shall be applied by the Depository on the related Remittance Date as follows: (a) first, to remit payments then due under the Hedging Agreements, if any; (b) second, to remit to Buyers an amount equal to the Price Differential which has accrued and is outstanding as of such Remittance Date; (c) third, to remit to Buyers the Allocated Portion of scheduled Principal Payments, if any (for purposes of this Section 4.3(c) and Section 4.4, "Allocated Portion" shall mean the product of (i) the amount of such principal repayment and (ii) the Purchase Percentage; provided that (A) the Allocated Portion shall not exceed the amount of unpaid Repurchase Price payable by Seller to Buyers for such Purchased Asset and (B) following the payment of the Allocated Portion, no Asset Margin Deficit exists); and (d) fourth, so long as no Event of Default shall have occurred and be continuing to remit to Seller the remainder, if any. 4.4 Subject to Section 4.5, any unscheduled Principal Payment received by the Depository in respect of any of the Purchased Assets during each Collection Period shall be applied by the Depository on the next Business Day following the Business Day upon which Buyers receive notice of such unscheduled Principal Payment from Servicer to the Repurchase Price of the Purchased Assets in respect of which such Principal Payment has been received, in the following order of priority: -23- (a) first, to remit the Allocated Portion of such unscheduled Principal Payment to Buyers; and (b) second, to remit to Seller the remainder of such unscheduled Principal Payment. 4.5 If an Event of Default shall have occurred and be continuing, all Income in the Cash Management Account in respect of the Purchased Assets and the associated Hedging Transactions shall be applied on the Business Day next following the Business Day on which such funds are deposited in the Cash Management Account as follows: (i) first, to Buyers, all costs and all other amounts payable by Seller and outstanding hereunder and under the other Transaction Documents; (ii) second, to Buyers, an amount equal to the Price Differential which has accrued and is outstanding in respect of the Transactions as of such Business Day; (iii) third, to Buyers, an amount equal to the aggregate Repurchase Price of the Purchased Assets, until the aggregate Repurchase Price for all of the Purchased Assets has been reduced to zero; (iv) fourth, to any other amounts owing by Seller hereunder; and (v) fifth, the remainder to Seller or as a court of competent jurisdiction may otherwise direct. 5. SECURITY INTEREST 5.1 Buyers and Seller intend that all Transactions hereunder be sales to Buyers of the Purchased Assets and not loans from Buyers to Seller secured by the Purchased Assets. However, in the event any such Transaction to which a Buyer is a party is deemed to be a loan, Seller hereby pledges all of its right, title, and interest in, to and under and grants a first priority lien on, and security interest in, all of the following property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located to such Buyer to secure such loan the payment and performance of all other amounts or obligations owing to such Buyer pursuant to this Agreement and the related documents described herein: (a) the Purchased Securities purchased by such Buyer pursuant to this Agreement (and identified in Confirmations) and all "securities accounts" created in connection therewith (as defined in Section 8-501(a) of the UCC) to which any or all of such Purchased Securities are credited; (b) the Purchased Loans purchased by such Buyer pursuant to this Agreement (and identified in Confirmations), Servicing Agreements in connection with this Agreement, Servicing Records in connection with this Agreement, insurance relating to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; -24- (c) all "general intangibles", "accounts" and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (d) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing. 5.2 In addition, irrespective of whether any Transaction is deemed to be a loan, Seller hereby pledges all of its right, title, and interest in, to and under and grants a first priority lien on, and security interest in, all of the following property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, together with any and all collateral granted to Buyers pursuant to Section 5.1 above, the "Collateral") to Buyers to secure the payment and performance of all other amounts or obligations owing to Buyers pursuant to this Agreement and the related documents described herein: (a) the Cash Management Account created in connection with this Agreement and all monies from time to time on deposit in such Cash Management Account; (b) the Hedging Agreements, if any; (c) all "general intangibles", "accounts" and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (d) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing. 5.3 Buyers' security interest in the Collateral subject to any Transaction shall terminate only upon termination of Seller's obligations with respect to such Transaction under this Agreement and the documents delivered in connection herewith and therewith or upon repurchase by Seller of any such Collateral. For purposes of the grant of the security interest pursuant to this Section 5, this Agreement shall be deemed to constitute a security agreement under the New York Uniform Commercial Code (the "UCC"). Buyers shall have all of the rights and may exercise all of the remedies of a secured creditor under the UCC and the other laws of the State of New York and Seller shall have all of the rights and may exercise all of the remedies of a debtor under the UCC and the other laws of the State of New York. In furtherance of the foregoing, (i) Buyers shall cause to be filed as a protective filing with respect to the Purchased Assets and as a UCC filing with respect to the security interests granted in Sections 5.1 and 5.2 (i) two separate UCC financing statements, each in the form of Exhibit I-B attached hereto and each naming Seller as debtor and a Buyer as secured party (to be filed in the filing office indicated therein), (ii) amendments to each such UCC financing statement in the form of Exhibit I-C attached hereto, in each case having attached to such UCC financing statement or such UCC -25- financing statement amendment a description of the related Purchased Assets which identifies the related Purchased Assets by setting forth (a) the name of the borrower or issuer with respect to each related Purchased Asset and (b) the loan agreement (including the date) or other document, agreement or instrument pursuant to which each related Purchased Asset was made or is governed and (iii) such other UCC filings, in such locations as may be necessary to perfect and maintain perfection and priority of the outright transfer and the security interest granted hereby and, in each case, continuation statements and any amendments thereto (collectively, the "Filings"), and shall forward copies of such Filings to Seller upon completion thereof, and (b) Seller shall from time to time, at its own expense, deliver and cause to be duly filed all such further filings, instruments and documents and take all such further actions as may be necessary or desirable or as may be requested by Buyer with respect to the perfection and priority of the outright transfer of the Purchased Assets and the security interests granted hereunder (including marking its records and files to evidence the interests granted to Buyers hereunder). 6. PAYMENT, TRANSFER AND CUSTODY 6.1 Subject to the terms and conditions of this Agreement, on the Purchase Date for each Transaction, ownership of the Purchased Assets shall be transferred to Buyers or their designee (including the Custodian) against the simultaneous transfer of the Purchase Price to an account of Seller specified in the Confirmation relating to such Transaction. 6.2 On or prior to the applicable Purchase Date, Seller shall deliver the related Purchased Securities re-registered in the name of Buyers or other designee of Buyers or duly endorsed in blank if the Purchased Securities are in certificated form in accordance with the Custodial Agreement (or, subject to the approval of Buyers, together with documentation sufficient to permit the re-registration of the Purchased Securities by Buyers in the name of Buyers or other designee of Buyers) and Buyers or their other designee shall have all rights of conversions, exchange, subscription and any other rights, privileges and options pertaining to such Purchased Securities as the owner thereof, and in connection therewith, the right to deposit and deliver any and all of such Purchased Securities with any committee, depositary transfer, agent, register or other designated agency upon such terms and conditions as Buyers may determine. The Purchased Securities shall be held by Buyers or their designee, as exclusive bailee and agent for Buyers, either directly or through the facilities of a Relevant System, as "securities intermediary" (as defined in Section 8-102(a)(14) of the UCC and 31 C.F.R. Section 357.2) and credited to the "securities account" (as defined in Section 8-501(a) of the UCC) of Buyers. Buyers, as "entitlement holder" (as defined in Section 8-102(a)(7) of the UCC) with respect to such Purchased Securities, shall be entitled to receive all cash dividends and distributions paid in respect thereof (which, if any, shall be either paid to Seller or applied to reduce the Repurchase Price). Any such dividends or distributions with respect to such Purchased Securities received by Seller shall be promptly remitted to the Cash Management Account. 6.3 With respect to the Purchased Securities that shall be delivered or held in uncertificated form and the ownership of which is registered on books maintained by the issuer thereof or its transfer agent, Seller shall cause the registration of such security or other item of investment property in the name of Buyers or their designee and at the request of Buyers, shall take such other and further steps, and shall execute and deliver such documents or instruments -26- necessary in the opinion of Buyers, to effect a legally valid transfer to Buyers hereunder. With respect to such Purchased Securities that shall be delivered or held in definitive, certificated form, Seller shall deliver to Buyers or their designee (which shall be the Custodian initially) the original of the relevant certificate endorsed in blank, together with documentation sufficient to permit the re-registration of the Purchased Securities by Buyers in the name of Buyers or other designee of Buyers. Unless otherwise instructed by Buyers, any delivery of a security or other item of investment property in definitive, certificated form shall be made to the Custodian. With respect to such Purchased Securities that shall be delivered through a Relevant System in book entry form and credited to or otherwise held in a securities account, Seller shall take such actions necessary to provide instruction to the relevant financial institution or other entity, which instruction shall be sufficient if complied with to register the transfer of such Purchased Securities from Seller to Buyers or their designee. In connection with any account to which such Purchased Securities are credited or otherwise held, Seller shall execute and deliver such other and further documents or instruments necessary, in the opinion of Buyers, to effect a legally valid transfer to Buyers hereunder. Any account to which such Purchased Securities are credited or otherwise held shall be designated in accordance with the Custodial Agreement or such variation thereon as Buyers may direct. Any delivery of such Purchased Security in accordance with this paragraph, or any other method acceptable to Buyers, shall be sufficient to cause Buyers to be the "entitlement holder" (as defined in Section 8-102(a)(7) of the UCC) with respect to such Purchased Securities and, if the Transaction is recharacterized as a secured financing, to have a perfected first priority security interest therein. No Purchased Securities, whether certificated or uncertificated, shall remain in the possession of Seller or any of its agents or in any securities account in the name of Seller or any of its agents. 6.4 As a condition to Buyers' purchase of any Purchased Securities, (a) Seller shall deliver to Buyers on or prior to the Purchase Date with respect to such Purchased Securities: (A) copies of the executed Securitization Documents governing such Purchased Securities, and the offering documents related to such Purchased Securities, each certified by Seller as a true, correct and complete copy of the original document delivered to Seller, and any ancillary documents required to be delivered to holders of the Purchased Securities under such Securitization Documents; (B) one or more officer's certificates with respect to the completeness of the documents delivered as may be reasonably requested by Buyers, (C) an instruction letter from Seller to the Trustee under such Securitization Documents, instructing the Trustee to remit all sums required to be remitted to the holder of such Purchased Securities under such Securitization Documents to the Depository or as otherwise directed in a written notice signed by Seller and Buyers, (D) copies of all distribution statements, if any, delivered to Seller pursuant to such Securitization Documents during the three-month period immediately preceding such Purchase Date, -27- (E) a copy of the trade ticket or other transaction confirmation pursuant to which Seller acquired such Purchased Securities, (F) any other documents or instruments necessary in the opinion of Buyers to consummate the sale of such Purchased Securities to Buyers or, if such Transaction is recharacterized as a secured financing, to create and perfect in favor of Buyers a valid perfected first priority security interest in such Purchased Securities; and (b) Seller shall have taken the requisite steps with respect to delivery and/or registration of such Purchased Securities as described more fully in Section 6.3 of this Agreement. 6.5 On or before each Purchase Date with respect to each Purchased Loan, Seller shall deliver or cause to be delivered to Buyers or their designee the Custodial Delivery in the form attached hereto as Exhibit IV. On or before each Purchase Date, with respect to each Table Funded Purchased Loan, Seller shall cause the Bailee to deliver to the Custodian by facsimile the related Mortgage Note, the Bailee Agreement and the Bailee Trust Receipt issued thereunder. In connection with each sale, transfer, conveyance and assignment of a Purchased Loan, on or prior to each Purchase Date with respect to such Purchased Loan (other than a Table Funded Purchased Loan) or by not later than 12:00 p.m. (New York time) on the third Business Day following the applicable Purchase Date with respect to each Table Funded Purchased Loan, Seller shall deliver or cause to be delivered and released to the Custodian the following documents (collectively, the "Purchased Loan File"), pertaining to each of the Purchased Loans identified in the Custodial Delivery delivered therewith: (a) With respect to each Purchased Loan which is an Eligible First Lien Loan: (A) The original Mortgage Note bearing all intervening endorsements, endorsed "Pay to the order of _________ without recourse" and signed in the name of the last endorsee (the "Last Endorsee") by an authorized Person (in the event that the Mortgage Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: "[Last Endorsee], formerly known as [previous name]"). (B) The original of any loan agreement, guarantee, indemnity or cash management agreement executed in connection with the Mortgage Note (if any). (C) The original Mortgage with evidence of recording thereon, or a copy thereof together with an officer's certificate of Seller certifying that such represents a true and correct copy of the original and that such original has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located. (D) The originals of all assumption, modification, consolidation or extension agreements with evidence of recording thereon, or copies thereof together with an officer's certificate of Seller certifying that such represent true and correct copies of -28- the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located. (E) The original Assignment of Mortgage in blank for each Purchased Loan, in form and substance acceptable for recording and signed in the name of the Last Endorsee (in the event that the Purchased Loan was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Purchased Loan was acquired or originated while doing business under another name, the signature must be in the following form: "[Last Endorsee], formerly known as [previous name]"). (F) The originals of all intervening assignments of mortgage with evidence of recording thereon, or copies thereof together with an officer's certificate of Seller certifying that such represent true and correct copies of the originals and that such originals have each been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located. (G) The original attorney's opinion of title and abstract of title or the original mortgagee title insurance policy, or if the original mortgagee title insurance policy has not been issued, the irrevocable marked commitment to issue the same. (H) The original of any security agreement, chattel mortgage or equivalent document executed in connection with the Purchased Loan. (I) The original assignment of leases and rents, if any, with evidence of recording thereon, or a copy thereof together with an officer's certificate of Seller, certifying that such copy represents a true and correct copy of the original that has been submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located. (J) The originals of all intervening assignments of assignment of leases and rents, if any, or copies thereof, with evidence of recording thereon. (K) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof certified by Seller to have been sent for filing, and UCC assignments executed by Seller in blank, which UCC assignments shall be in form and substance acceptable for filing. (L) An environmental indemnity agreement (if any). (M) An omnibus assignment in blank (if any). (N) A disbursement letter from the Mortgagor to the original mortgagee (if any). (O) Mortgagor's certificate or title affidavit (if any). -29- (P) A survey of the Mortgaged Property (if any) as accepted by the title company for issuance of the Title Policy. (Q) A copy of the Mortgagor's opinion of counsel (if any). (R) An assignment of permits, contracts and agreements (if any). (S) All original letters of credit and originals or certified copies of any interest rate cap or swap agreements relating to such Purchased Loan. (T) In respect of any Purchased Loan as to which the Mortgaged Property or underlying real property, as applicable, consists of a leasehold interest, the ground lease, memorandum of ground lease and ground lessor consent and/or estoppel. (U) The original of any participation agreement, intercreditor agreement and/or servicing agreement executed in connection with the Purchased Loan. (V) All other documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying such Purchased Loan, or otherwise executed or delivered in connection with such Purchased Loan, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property. (W) Such other documents, agreements or instruments as shall be reasonably requested by Buyers. (b) With respect to each Purchased Loan which is an Eligible Mezzanine Loan (other than an Eligible Mezzanine Loan represented by a participation interest in a performing mezzanine loan) or an Eligible B Note (other than an Eligible B Note represented by a junior participation interest): (A) The original Mezzanine Note or B-Note signed in connection with the Purchased Loan bearing all intervening endorsements, endorsed "Pay to the order of __________ without recourse" and signed in the name of the Last Endorsee by an authorized Person (in the event that the Mezzanine Note was acquired by the Last Endorsee in a merger, the signature must be in the following form: "[Last Endorsee], successor by merger to [name of predecessor]"; in the event that the Purchased Loan was acquired or originated by the Last Endorsee while doing business under another name, the signature must be in the following form: "[Last Endorsee], formerly known as [previous name]"). (B) The original of the loan agreement and the guarantee, if any, executed in connection with the Purchased Loan. (C) The original intercreditor or loan coordination agreement, if any, executed in connection with the Purchased Loan. -30- (D) The original security agreement executed in connection with the Purchased Loan. (E) Copies of all documents relating to the formation and organization of the borrower of such Purchased Loan, together with all consents and resolutions delivered in connection with such borrower's obtaining the Purchased Loan. (F) All other documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting such Purchased Loan, or otherwise executed or delivered in connection with, or otherwise relating to, such Purchased Loan, including all documents establishing or implementing any lockbox pursuant to which Seller is entitled to receive any payments from cash flow of the underlying real property. (G) The assignment of Purchased Loan sufficient to transfer to Buyers all of Seller's rights, title and interest in and to the Purchased Loan. (H) A copy of the borrower's opinion of counsel (if any). (I) A copy of the UCC financing statements, certified as true and correct by Seller, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof certified by Seller to have been sent for filing, and UCC assignments executed by Seller in blank, which UCC assignments shall be in form and substance acceptable for filing. (J) The original certificates representing the pledged equity interests (if any). (K) Stock powers relating to each pledged equity interest, executed in blank, if an original stock certificate is provided. (L) Assignment of any management agreements, agreements among equity interest holders or other material contracts. (M) If no original stock certificate is provided, evidence (which may be an officer's certificate confirming such circumstances) that the pledged ownership interests have been transferred to, or otherwise made subject to a first priority security interest in favor of, Seller. (N) The original environmental indemnity agreement, if any. (O) All original letters of credit and originals or certified copies of any interest rate cap or swap agreements, if any. (P) Such other documents, agreements or instruments as shall be reasonably requested by Buyers. -31- (c) With respect to each Purchased Loan which is an Eligible B Note represented by a junior participation interest or an Eligible Mezzanine Loan represented by a participation interest in a performing mezzanine loan: (A) Copies of all of the applicable documents described above with respect to a Purchased Loan which is an Eligible First Lien Loan. (B) The original of any participation agreement, intercreditor agreement and/or servicing agreement executed in connection with the Purchased Loan. (C) The assignment of Purchased Loan sufficient to transfer to Buyers all of Seller's rights, title and interest in and to the Purchased Loan. From time to time, Seller shall forward to the Custodian additional original documents or additional documents evidencing any assumption, modification, consolidation or extension of a Purchased Loan approved in accordance with the terms of this Agreement, and upon receipt of any such other documents, the Custodian shall hold such other documents as Buyers shall request from time to time. With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to Seller in time to permit their delivery hereunder at the time required, in lieu of delivering such original documents, Seller shall deliver to Buyers a true copy thereof with an officer's certificate certifying that such copy is a true, correct and complete copy of the original, which has been transmitted for recordation. Seller shall deliver such original documents to the Custodian promptly when they are received. With respect to all of the Purchased Loans delivered by Seller to Buyers or their designee (including the Custodian), Seller shall execute an omnibus power of attorney substantially in the form of Exhibit V attached hereto irrevocably appointing Buyers its attorney-in-fact with full power upon the occurrence and during the continuance of an Event of Default to (i) complete and record the Assignment of Mortgage, (ii) complete the endorsement of the Mortgage Note or Mezzanine Note and (iii) take such other steps as may be necessary or desirable to enforce Buyers' rights against such Purchased Loans and the related Purchased Loan Files and the Servicing Records. Buyers shall deposit the Purchased Loan Files representing the Purchased Loans, or direct that the Purchased Loan Files be deposited directly, with the Custodian. The Purchased Loan Files shall be maintained in accordance with the Custodial Agreement. Any Purchased Loan Files not delivered to Buyers or their designee (including the Custodian) are and shall be held in trust by Seller or its designee for the benefit of Buyers as the owner thereof. Seller or its designee shall maintain a copy of the Purchased Loan File and the originals of the Purchased Loan File not delivered to Buyers or their designee. The possession of the Purchased Loan File by Seller or its designee is at the will of Buyers for the sole purpose of servicing the related Purchased Loan, and such retention and possession by Seller or its designee is in a custodial capacity only. The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Loan to Buyers. Seller or its designee (including the Custodian) shall release its custody of the Purchased Loan File only in accordance with written instructions from Buyers, unless such release is required as incidental to the servicing of the Purchased Loans or is in connection with a repurchase of any Purchased Loan by Seller. -32- 6.6 Unless an Event of Default on the part of Seller shall have occurred and be continuing, Buyers shall exercise all voting and corporate rights with respect to the Purchased Securities in accordance with Seller's written instructions; provided, however, that Buyers shall not be required to follow Seller's instructions concerning any vote or corporate right if doing so would, in Buyers' reasonable business judgment, impair the Purchased Securities or be inconsistent with or result in any violation of any provision of the Transaction Documents. Upon the occurrence and during the continuation of an Event of Default on the part of Seller, Buyers shall be entitled to exercise all voting and corporate rights with respect to the Purchased Securities without regard to Seller's instructions (including, but not limited to, if an Act of Insolvency shall occur with respect to Seller, to the extent Seller controls or is entitled to control selection of the special servicer, Buyers may transfer such special servicing to an entity satisfactory to Buyers). 7. SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED SECURITIES 7.1 Subject to the terms and conditions of this Agreement, title to all Purchased Assets shall pass to Buyers on the applicable Purchase Date, and Buyers shall have free and unrestricted use of all Purchased Assets subject to the terms and conditions thereof. Nothing in this Agreement or any other Transaction Document shall preclude Buyers from engaging in repurchase transactions with the Purchased Assets or otherwise selling, transferring, pledging, repledging, hypothecating, or rehypothecating the Purchased Assets, but no such transaction shall relieve Buyers of their obligations under Section 16 or Buyers' obligations to transfer the Purchased Assets to Seller pursuant to Sections 2 or 11 of this Agreement or of Buyers' obligation to credit or pay Income to, or apply Income to the obligations of, Seller pursuant to Section 4 hereof. 7.2 Nothing contained in this Agreement or any other Transaction Document shall obligate Buyers to segregate any Purchased Asset delivered to Buyers by Seller. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, no Purchased Asset shall remain in the custody of Seller or an Affiliate of Seller. 8. REPRESENTATIONS 8.1 Seller represents and warrants to Buyers that (i) Seller is duly authorized to execute and deliver this Agreement, to enter into Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) Seller will engage in such Transactions as principal (or, if agreed in writing, in the form of an annex hereto or otherwise, in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person signing this Agreement on Seller's behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) Seller has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect, and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law or rule applicable to Seller or any agreement by which it is bound or by which any of its assets are affected. On the -33- Purchase Date for any Transaction Seller shall be deemed to repeat all the foregoing representations. 8.2 In addition to the representations and warranties appearing in Section 8.1 of this Agreement, Seller represents and warrants to Buyers that as of the Purchase Date for the purchase of any Purchased Assets by Buyers from Seller and any Transaction hereunder and as of the date of this Agreement and at all times while this Agreement and any Transaction hereunder is in full force and effect: (a) Organization. Seller is duly organized, validly existing and in good standing under the laws and regulations of the state of Seller's organization and is duly licensed, qualified, and in good standing in every state where such licensing or qualification is necessary for the transaction of Seller's business, except to the extent that the failure to be so qualified could not reasonably be expected to have a material adverse effect on the business, operations, or financial condition of Seller or the validity or enforceability of the Transaction Documents or the Purchased Assets. Seller has the power to own and hold the assets it purports to own and hold, and to carry on its business as now being conducted and proposed to be conducted, and has the power to execute, deliver, and perform its obligations under this Agreement and the other Transaction Documents. (b) Due Execution; Enforceability. Each of the Transaction Documents has been duly executed and delivered by Seller, for good and valuable consideration. Each of the Transaction Documents constitute the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms subject to bankruptcy, insolvency, and other limitations on creditors' rights generally and to equitable principles. (c) Non-Contravention. Neither the execution and delivery of the Transaction Documents, nor consummation by Seller of the transactions contemplated by the Transaction Documents (or any of them), nor compliance by Seller with the terms, conditions and provisions of the Transaction Documents (or any of them) will conflict with or result in a breach of any of the terms, conditions or provisions of (i) the certificate of incorporation or bylaws of Seller, (ii) any contractual obligation to which Seller is now a party or the rights under which have been assigned to Seller or the obligations under which have been assumed by Seller or to which the assets of Seller are subject or constitute a default thereunder, or result thereunder in the creation or imposition of any lien upon any of the assets of Seller, other than pursuant to the Transaction Documents, (iii) any judgment or order, writ, injunction, decree or demand of any court applicable to Seller, or (iv) any applicable Requirement of Law, to the extent that such default, conflict or breach would have a material adverse effect upon Seller's ability to perform its obligations hereunder. Seller has all necessary licenses, permits and other consents from Governmental Authorities necessary to acquire, own and sell the Purchased Assets and for the performance of its obligations under the Transaction Documents. (d) Litigation; Requirements of Law. There is no action, suit, proceeding, investigation, or arbitration pending or, to the best knowledge of Seller, threatened against Seller or any of its assets, which may result in any material adverse change in the business, operations, financial condition, or assets of Seller, or which may have an adverse effect on the validity of the Transaction Documents or the Purchased Assets or any material action taken or to be taken in -34- connection with the obligations of Seller under any of the Transaction Documents. Seller is in compliance in all material respects with all Requirements of Law. Seller is not in default in any material respect with respect to any judgment, order, writ, injunction, decree, rule or regulation of any arbitrator or Governmental Authority. (e) No Broker. Seller has not dealt with any broker, investment banker, agent, or other Person (other than Buyers or an Affiliate of Buyers) who may be entitled to any commission or compensation in connection with the sale of Purchased Assets pursuant to any of the Transaction Documents. (f) Good Title to Purchased Assets. Immediately prior to the purchase of any Purchased Assets by Buyers from Seller, such Purchased Assets are free and clear of any lien, encumbrance or impediment to transfer (including any "adverse claim" as defined in Section 8-102(a)(1) of the UCC), and Seller is the record and beneficial owner of and has good and marketable title to and the right to sell and transfer such Purchased Assets to Buyers and, upon transfer of such Purchased Assets to Buyers, Buyers shall be the owner of such Purchased Assets free of any adverse claim. In the event the related Transaction is recharacterized as a secured financing of the Purchased Assets, the provisions of this Agreement are effective to create in favor of Buyers a valid security interest in all rights, title and interest of Seller in, to and under the Purchased Assets and Buyers shall have a valid, perfected first priority security interest in the Purchased Assets (and without limitation on the foregoing, Buyers, as entitlement holder, shall have a "security entitlement" to the Purchased Securities). (g) No Default. No Default or Event of Default exists. (h) Representations in Securitization Documents. All of the Purchased Securities have been validly issued and are fully paid and non-assessable and not subject to preemptive rights and have been offered, issued and sold in compliance with all Requirements of Law. The Securitization Documents are genuine, in full force and effect and the legal, valid and binding obligation of the parties thereto, enforceable in accordance with their terms, subject to bankruptcy, insolvency, and other limitations on creditors' rights generally and to equitable principles. Seller has not waived the performance of any action or any default, breach or violation resulting from action or inaction under a Securitization Document and has not been made aware of any such waiver. Except as disclosed to Buyers in writing, there is no default, breach, violation or event of acceleration existing under a Securitization Document and to Seller's knowledge, no event has occurred which, with the passage of time or giving of notice or both and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration thereunder. Each Purchased Security is freely assignable and the related Securitization Documents permit Seller to sell, assign or pledge such Purchased Security. (i) Representations and Warranties Regarding Purchased Loans; Delivery of Purchased Loan File. Seller represents and warrants to Buyers that each Purchased Loan sold hereunder and each pool of Purchased Loans sold in a Transaction hereunder, as of each Purchase Date for a Transaction conform in all material respects to the applicable representations and warranties set forth in Exhibit VI attached hereto, except as disclosed to Buyers in writing. It is understood and agreed that the representations and warranties set forth in Exhibit VI hereto, if any, shall survive delivery of the respective Purchased Loan File to Buyers or their designee -35- (including the Custodian) to the extent permitted by applicable law. With respect to each Purchased Loan, the Mortgage Note or Mezzanine Note, the Mortgage (if any), the Assignment of Mortgage (if any) and any other documents required to be delivered under this Agreement and the Custodial Agreement for such Purchased Loan have been delivered to Buyers or the Custodian on their behalf. Except as otherwise disclosed to Buyers, Seller or its designee is in possession of a complete, true and accurate Purchased Loan File with respect to each Purchased Loan, except for such documents the originals of which have been delivered to the Custodian. (j) Adequate Capitalization; No Fraudulent Transfer. Seller has, as of such Purchase Date, adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. Seller is generally able to pay, and as of the date hereof is paying, its debts as they come due. Seller has not become, or is presently, financially insolvent nor will Seller be made insolvent by virtue of Seller's execution of or performance under any of the Transaction Documents within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. Seller has not entered into any Transaction Document or any Transaction pursuant thereto in contemplation of insolvency or with intent to hinder, delay or defraud any creditor. (k) Consents. No consent, approval or other action of, or filing by Seller with, any Governmental Authority or any other Person is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of any of the Transaction Documents by Seller (other than consents, approvals and filings that have been obtained or made, as applicable). (l) Organizational Documents. Seller has delivered to Buyers certified copies of its certificate of incorporation and by-laws, together with all amendments thereto. (m) No Encumbrances. Except as a result of entering into this Agreement, there are (i) no outstanding rights, options, warrants or agreements on the part of Seller for a purchase, sale or issuance, in connection with the Purchased Assets, (ii) no agreements on the part of Seller to issue, sell or distribute the Purchased Assets, and (iii) no obligations on the part of Seller (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or any interest therein or to pay any dividend. (n) Federal Regulations. Seller is not required to register as an "investment company," or a company "controlled by an investment company," under the Investment Company Act of 1940, as amended, or (B) a "holding company," or a "subsidiary company of a holding company," or an "affiliate" of either a "holding company" or a "subsidiary company of a holding company," as such terms are defined in the Public Utility Holding Company Act of 1935, as amended. (o) Taxes. Seller has filed or caused to be filed all tax returns which to the knowledge of Seller would be delinquent if they had not been filed on or before the date hereof and has paid all taxes shown to be due and payable on or before the date hereof on such returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it and any of its assets by any Governmental Authority, except for such taxes as are being appropriately contested in good faith by appropriate proceedings diligently -36- conducted and with respect to which adequate reserves have been provided in accordance with GAAP; no tax liens have been filed against any of Seller's assets and, to Seller's knowledge, no claims are being asserted with respect to any such taxes, fees or other charges. (p) ERISA. Seller does not have any Plans or any ERISA Affiliates and makes no contributions to any Plans or any Multiemployer Plans. (q) Judgments/Bankruptcy. Except as disclosed in writing to Buyers, there are no judgments against Seller unsatisfied of record or docketed in any court located in the United States of America, and no Act of Insolvency has ever occurred with respect to Seller. (r) Specified Data. All Specified Data concerning Seller and the Purchased Assets that has been delivered by or on behalf of Seller to Buyers under or in connection with this Agreement, is complete and correct in all material respects as of the date of delivery (or if stated to have been prepared as of an earlier date, as of such earlier date). (s) Location of Seller. On the date of this Agreement, Seller's principal place of business is located at 410 Park Avenue, 14th Floor, New York, New York 10022. Seller's jurisdiction of organization is the State of Maryland. The location where Seller keeps its books and records, including all computer tapes and records relating to the Purchased Assets is its principal place of business. 8.3 On the Purchase Date for any Transaction, Seller shall be deemed to have made all of the representations set forth in Sections 8.1 and 8.2 of this Agreement as of such Purchase Date. 9. NEGATIVE COVENANTS OF SELLER On and as of the date hereof and each Purchase Date and until this Agreement is no longer in force with respect to any Transaction, Seller shall not without the prior written consent of Buyers: 9.1 subject to Seller's right to repurchase, take any action which would directly or indirectly impair or adversely affect Buyers' title to the Purchased Assets; 9.2 transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or indirectly, any interest in the Purchased Assets (or any of them) to any Person other than Buyers, or engage in repurchase transactions or similar transactions with respect to the Purchased Assets (or any of them) with any Person other than Buyers so long as such Purchased Assets are subject to this Agreement; 9.3 create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Purchased Assets, subject to the security interest granted by Seller pursuant to Section 5 of this Agreement, except as described in Section 5 of this Agreement; 9.4 modify or terminate any of the organizational documents of Seller in a manner adverse to the interests of Buyer under this Agreement; -37- 9.5 consent or assent to any amendment or supplement to, or termination of, any Securitization Document, any note, loan agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or instrument relating to the Purchased Assets other than a Permitted Purchased Loan Modification; provided, that Buyers agree to use commercially reasonably efforts to respond to any such written request within five (5) Business Days; 9.6 at any time during which an Event of Default on the part of Seller has occurred and is continuing, vote or take any action to permit any rights afforded to a holder of the Purchased Securities under the related Securitization Documents; or 9.7 after the occurrence and during the continuation of any Event of Default under Section 11(a) hereof, make any distribution (other than the minimum distributions necessary to maintain the REIT status of Seller), payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of any equity or ownership interest of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Seller; or 9.8 permit the ratio of Adjusted Total Indebtedness to Tangible Net Worth at any time to be greater than 5.00 to 1.00. 9.9 permit its Fixed Charge Ratio to be less than 1.2 to 1.00. 9.10 permit Tangible Net Worth at any time to be less than $200,000,000. 10. AFFIRMATIVE COVENANTS OF SELLER 10.1 Seller shall promptly notify Buyers of any material adverse change in its business, operations, or financial condition. 10.2 Seller shall provide Buyers with copies of such documents as Buyers may reasonably request evidencing the truthfulness of the representations set forth in Section 8. 10.3 Seller (1) shall defend the right, title and interest of Buyers in and to the Purchased Assets against, and take such other action as is necessary to remove, any Liens, security interests, claims and demands of all Persons (other than security interests by or through Buyers) and (2) shall, at Buyers' request, take all action necessary to ensure that Buyers will have a first priority security interest in the Purchased Assets subject to any of the Transactions in the event such Transactions are recharacterized as secured financings. 10.4 Seller shall notify Buyers and the Depository of the occurrence of any Default or Event of Default as soon as possible but in no event later than the Business Day after obtaining actual knowledge of such event. -38- 10.5 If an Act of Insolvency occurs with respect to Seller, Seller shall permit Buyers to transfer servicing and/or special servicing with respect to all mortgage loans underlying the Purchased Securities to an entity satisfactory to Buyers, to the extent Seller controls or is entitled to control the selection of the servicer and/or special servicer, as the case may be. 10.6 Seller shall promptly (and in any event not later than two (2) Business Days following receipt) deliver to Buyers (i) any notice of the occurrence of an event of default under, notice of condemnation, casualty or environmental contamination with respect to or report received by or required to be delivered by Seller pursuant to the Securitization Documents, (ii) any notice of transfer of servicing under the Securitization Documents, (iii) any notice of termination or other unwind of any Hedging Agreement and (iv) any other information with respect to the Purchased Assets as may be reasonably requested by Buyers from time to time to the extent such information is in Seller's possession or can be obtained by Seller at a reasonable cost. 10.7 Seller will permit Buyers, at Buyer's cost, or their designated representative to inspect Seller's records with respect to the Purchased Assets and the conduct and operation of its business related thereto upon prior written notice from Buyers or their designated representative, at such times and with such frequency, and to make copies of extracts of any and all thereof, subject to the terms of any confidentiality agreement between Buyers and Seller. Buyers shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Seller's business. Subsequent to the occurrence and during the continuance of an Event of Default, Seller shall reimburse Buyers for all costs associated with this Section 10.7. 10.8 If Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for the Purchased Securities, or otherwise in respect thereof, Seller shall accept the same as Buyers' agent, hold the same in trust for Buyers and deliver the same forthwith to Buyers in the exact form received, duly endorsed by Seller to Buyers, if required, together with an undated bond or other securities power covering such certificate duly executed in blank to be held by Buyers hereunder as additional collateral security for the Transactions. If any sums of money or property so paid or distributed in respect of the Purchased Securities shall be received by Seller, Seller shall, until such money or property is paid or delivered to Buyers, hold such money or property in trust for Buyers, segregated from other funds of Seller, as additional collateral security for the Transactions. 10.9 At any time from time to time upon prior written request of Buyers, at the sole expense of Seller, Seller will promptly and duly execute and deliver such further instruments and documents and take such further actions as Buyers may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement including the first priority security interest granted hereunder and of the rights and powers herein granted. If any amount payable under or in connection with any of the Purchased Assets shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to Buyers, duly endorsed in blank in a manner -39- satisfactory to Buyers, to be held as a Purchased Asset under the related Transaction pursuant to this Agreement, and the documents delivered in connection herewith. 10.10 Seller shall provide Buyers with the following financial and reporting information as soon as possible and in any event: (a) within 45 days after the last day of each of the first, second, and third calendar quarters in any fiscal year, and within 90 days after the fourth calendar quarter in any fiscal year, an officer's certificate from Seller addressed to Buyers certifying that, as of such calendar quarter, (x) Seller is in compliance with all of the terms, conditions and requirements of this Agreement (and demonstrating compliance with the provisions of Sections 9.8, 9.9 and 9.10), and (y) no Event of Default exists; (b) within 30 days after each month end, a Monthly Servicer Report, and such other information as Buyers may from time to time request; (c) to the extent available to Seller, within 30 days after each month end, financial statements and rent rolls for each underlying Mortgagor; (d) to the extent required by the underling loan documents and available to Seller, within 45 days after the last day of each fiscal quarter of each Mortgagor and 90 days after the last day of each fiscal year of each Mortgagor, unaudited quarterly financial statements and audited annual financial statements, respectively, of such Mortgagor;; (e) within 45 days after the last day of each calendar quarter in any fiscal year, Seller's 10-Q quarterly report filed with the U.S. Securities and Exchange Commission; (f) within 90 days after the last day of each calendar year, Seller's 10-K annual report filed with the U.S. Securities and Exchange Commission; and (g) within 30 days after each month end, a written summary of all outstanding Hedging Agreements, provided that with respect to all hedges provided by Buyers or any Affiliate of Buyers, Seller shall provide the written summary provided to Seller by Buyers or their Affiliates. 10.11 Seller shall at all times comply in all material respects with all laws, ordinances, rules and regulations of any federal, state, municipal or other public authority having jurisdiction over Seller or any of its assets and Seller shall do or cause to be done all things reasonably necessary to preserve and maintain in full force and effect its legal existence, and all licenses material to its business. 10.12 Seller shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP. 10.13 Seller shall observe, perform and satisfy all the material terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay -40- when due all costs, fees and expenses required to be paid by it, under the Transaction Documents. Seller shall pay and discharge all taxes, levies, liens and other charges on its assets and on the Purchased Assets that, in each case, in any manner would create any lien or charge upon the Purchased Assets, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP. 10.14 Seller shall advise Buyers in writing of any change in Seller's name or jurisdiction of organization and of any change in the places where the books and records pertaining to the Purchased Assets are held not less than fifteen (15) Business Days prior to taking any such action. 10.15 Seller will maintain records with respect to the Purchased Assets and the conduct and operation of its business with no less a degree of prudence than if the Purchased Assets were held by Seller for its own account and will furnish Buyers, upon request by Buyers or their designated representative, with reasonable information reasonably obtainable by Seller with respect to the Purchased Assets and the conduct and operation of its business. 10.16 Seller shall provide Buyers with operating statements, the occupancy status and other property level information within Seller's possession, with respect to the Mortgaged Properties, and similar reports within Seller's possession, in each case, as reasonably requested by Buyers. 10.17 Seller shall give each Buyer prior notice of all intended changes, amendments or modifications to the Underwriting Guidelines. If Buyers determine, in their sole discretion, that a proposed change is material, Buyers will have no obligation to consider purchasing any New Asset that is originated or acquired pursuant to the new Underwriting Guidelines. In the event that Seller makes any amendment or modification to the Underwriting Guidelines, Seller shall promptly deliver to each Buyer a complete copy of the amended or modified Underwriting Guidelines. Seller shall originate or acquire all Purchased Assets in a manner which is consistent with sound underwriting and appraisal practices, and in compliance with applicable federal and state consumer protection laws, including, without limitation, all laws with respect to unfair or deceptive practices and all laws relating to predatory lending practices. 11. EVENTS OF DEFAULT; REMEDIES Each of the following shall constitute an "Event of Default" hereunder: (a) Failure of Buyers to receive on any Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyers) (including, without limitation, in the event the Income paid or distributed on or in respect of the Purchased Assets is insufficient to make such payment and Seller does not make such payment or cause such payment to be made), or failure of Seller to make any other payment owing to Buyers which has become due, whether by acceleration or otherwise under the terms of this Agreement, which failure is not remedied within the applicable period, in each case excluding in circumstances where sufficient funds for such payment are held in the Cash -41- Management Account, unless funds are not applied to make a required payment because of the action of Seller which has not been remedied within two (2) Business Days. (b) Assignment or attempted assignment by Seller of this Agreement or any rights hereunder without first obtaining the specific written consent of Buyers. (c) Any representation or warranty made or deemed made by Seller herein or in any other Transaction Document or which is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Transaction Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made (other than the representations and warranties set forth in Exhibit VI, which shall be considered solely for the purpose of determining the Market Value of a Purchased Asset, unless Seller shall have made any such representation with knowledge that it was materially incorrect or untrue at the time made). (d) Seller shall default in the observance or performance of any agreement contained in Section 3 or Section 9 of this Agreement. (e) Seller shall default in the observance or performance of any other agreement contained in this Agreement or any other Transaction Document (other than as provided in paragraphs (a) through (d) of this Section), and such default shall continue unremedied for a period of 20 calendar days. (f) The occurrence of a Change of Control. (g) Seller fails to transfer the Purchased Assets to Buyers on the applicable Purchase Date (provided Buyers have tendered the related Purchase Price). (h) a final judgment by any competent court, administrative tribunal, or other body having jurisdiction in the United States of America for the payment of money shall have been rendered against Seller in an amount in excess of $5,000,000 that remains undischarged or unpaid for a period of thirty (30) days, during which period execution of such judgment is not effectively stayed by bonding over or other means acceptable to Buyers. (i) Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority shall have taken any action to condemn, seize or appropriate, or to assume custody or control of, all or any substantial part of the property of Seller, or shall have taken any action to displace the management of Seller or to curtail its authority in any material respect in the conduct of the business of Seller, or shall have taken any action in the nature of enforcement to remove, limit or restrict the approval of Seller thereof as an issuer, Buyers or a Seller/servicer of Purchased Assets or securities backed thereby, and such action provided for in this paragraph shall not have been discontinued or stayed within 30 days. (j) Either (i) the Transaction Documents shall for any reason not cause, or shall cease to cause, Buyers to be the owner, free of any adverse claim, of any of the Purchased Assets, or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyers in any of the Purchased Assets. -42- (k) Seller's audited annual financial statements or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of Seller as a "going concern" or a reference of similar import. (l) An Act of Insolvency shall have occurred with respect to Seller. (m) An officer of Seller shall admit its inability to, or its intention not to, perform any of Seller's obligations hereunder or under any other Transaction Documents. (n) Seller shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, which default (A) involves the failure to pay a matured obligation in excess of $5,000,000, or (B) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such note, indenture, loan agreement, guaranty, swap agreement or other contract agreement or transaction, or Seller shall breach any covenant or condition, shall fail to perform, admit its inability to perform or state its intention not to perform its obligations under any transaction or in respect of any repurchase agreement, reverse repurchase agreement, securities contract or derivative transaction with any party, in each case in respect of any obligation in excess of $5,000,000. (o) Buyers shall have determined in their sole discretion exercised in good faith that there shall have occurred a material adverse change in the business, operations, or financial condition of Seller from the circumstances known to Buyers to exist as of the date of this Agreement. An Event of Default with respect to Seller shall be deemed to be continuing unless expressly waived by Buyers in writing. 11.2 If an Event of Default shall occur and be continuing, the following rights and remedies shall be available to Buyers: (a) Buyers may, at their option (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency of Seller), accelerate the Repurchase Date for each Transaction hereunder, if such Repurchase Date has not already occurred (except that, in the event that the Purchase Date for any Transaction has not yet occurred as of the date of such exercise or deemed exercise, such Transaction shall be deemed immediately canceled). Buyers shall (except upon the occurrence of an Act of Insolvency of Seller) give notice to Seller of the exercise of such option as promptly as practicable. (b) If Buyers exercise or are deemed to have exercised the option referred to in subparagraph (a) above, Seller's obligations in such Transactions to repurchase all Purchased Assets, at the Repurchase Price therefor, shall thereupon become immediately due and payable, and (ii) all Income paid after such exercise or deemed exercise shall be retained by Buyers and applied, in Buyers' sole discretion, to the aggregate unpaid Repurchase Prices for all outstanding Transactions and any other amounts owing by Seller hereunder, and (iii) Seller shall immediately deliver to Buyers any Purchased Loan Documents, if any, that relate to any Purchased Assets then in Seller's possession or control. -43- (c) Buyers also shall have the right to obtain physical possession, and to continue any action to obtain physical possession, of any and all records and files of Seller relating to the Purchased Assets and all documents relating to the Purchased Assets (including, without limitation, any legal, credit or servicing files relating to the Purchased Assets) which are then or may thereafter come into the possession of Seller or any third party acting for Seller. Buyers shall be entitled to specific performance of all agreements of Seller contained in this Agreement. (d) Buyers shall have the right to direct all servicers, including Servicer, then servicing any Purchased Assets to remit all collections thereon to Buyers, and if any payments are received by Seller, Seller shall not commingle the amounts received with other funds of Seller and shall promptly pay them over to Buyers. Buyers shall also have the right to terminate any one or all of the servicers then servicing any Purchased Assets with or without cause. (e) Buyers shall deliver to Seller notice of their intention to liquidate the Purchased Assets and other Collateral at least five (5) Business Days prior to selling or otherwise liquidating any such Purchased Assets and other Collateral, and said notice shall be deemed to be reasonable. Thereafter, Buyers shall have the right to sell immediately and/or liquidate all or any portion of the Purchased Assets and/or all other Collateral. Such disposition of Purchased Assets and/or all other Collateral may be, at Buyers' option, on either a servicing released or a servicing retained basis. Buyers shall not be required to give any warranties as to the Purchased Assets and/or other Collateral with respect to any such disposition thereof. Buyers may specifically disclaim or modify any warranties of title or the like relating to the Purchased Assets and/or other Collateral. The foregoing procedure for disposition of the Purchased Assets and liquidation of the Collateral shall not be considered to adversely affect the commercial reasonableness of any sale thereof. Seller agrees that it would not be commercially unreasonable for Buyers to dispose of the Purchased Assets or other Collateral or any portion thereof by using Internet sites that provide for the auction of assets similar to the Purchased Assets and/or other Collateral, or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Buyers shall be entitled to place the Purchased Assets in one or more pools for issuance of securities at the then prevailing price for such securities and to sell such securities for such prevailing price in the open market. Buyers shall also be entitled to sell any or all of such Purchased Assets individually for the prevailing price. Seller shall have the right to bid in connection with any sale of Purchased Assets or otherwise purchase such Purchased Assets or securities in any sale contemplated by the foregoing in accordance with any procedures established therefore by Buyers. Buyers agree to recognize, to the extent Seller's bid or offer complies in all respects with the procedures and requirements imposed by Buyers in the conduct of such sale, Seller's bid or offer provided that the same is in excess of the bid or offer of any third party. (f) Buyers shall apply any proceeds from the liquidation of the Purchased Assets and other Collateral to the Repurchase Prices hereunder and all other Obligations in the manner Buyers deem appropriate in their sole discretion. (g) The parties recognize that it may not be possible to sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same purchaser, or in the same manner, because the market for such Purchased Assets may not be liquid. In view of -44- the nature of the Purchased Assets, the parties agree that, upon five (5) Business Days prior written notice to Seller, liquidation of the Purchased Assets does not require a public purchase or sale and that a private purchase or sale shall be deemed to have been made in a commercially reasonable manner. (h) Seller shall be liable to Buyers for (i) the amount of all legal or other expenses, including, without limitation, all costs and expenses of Buyers in connection with the enforcement of this Agreement or any other agreement evidencing a Transaction, whether in action, suit or litigation or bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally, further including, without limitation, the fees and expenses of counsel (including the costs of internal counsel of Buyers) incurred in connection with or as a result of an Event of Default, (ii) damages in an amount equal to the cost (including all fees, expenses and commissions) of entering into replacement transactions and entering into or terminating hedge transactions in connection with or as a result of an Event of Default, and (iii) any other loss, damage, actual out-of-pocket cost or actual, out-of-pocket expense directly arising or resulting from the occurrence of an Event of Default in respect of a Transaction. (i) To the extent permitted by applicable law, Seller shall be liable to Buyers for interest on any amounts owing by Seller hereunder, from the date Seller becomes liable for such amounts hereunder until such amounts are (i) paid in full by Seller or (ii) satisfied in full by the exercise of Buyers' rights hereunder. Interest on any sum payable by Seller under this section shall be at a rate equal to the rate otherwise in effect plus 3%. (j) Buyers shall have, in addition to their rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign, and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC of the State of New York, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between Buyers and Seller. Without limiting the generality of the foregoing, Buyers shall be entitled to set off the proceeds of the liquidation of the Purchased Assets against all of Seller's obligations to Buyers, only if such obligations are then due, without prejudice to Buyers' right to recover any deficiency. (k) Subject to the grace periods set forth herein, each party to this Agreement may exercise any or all of the remedies available to such party immediately upon the occurrence of an Event of Default and at any time during the continuance thereof without prior notice to the other parties hereto (unless otherwise specified herein). Except as expressly provided herein, all rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies which each party to this Agreement may have. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement or of any other Transaction Document, nor consent to any departure by any party to this Agreement therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on any party to this Agreement, shall entitle such party to any other or future notice or demand in the same, similar or other circumstances. Neither any failure nor any delay on the part of any party to this -45- Agreement in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under any other Transaction Document shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by purchasing any Purchased Asset under this Agreement on any Purchase Date, Buyers shall not be deemed to have waived any right to assert any Default, Event of Default or breach by Seller of any term, condition, covenant, representation or warranty under this Agreement or any Transaction Document, notwithstanding that such Default, Event of Default or breach may have arisen prior to such Purchase Date. (l) Buyers may enforce their rights and remedies hereunder without prior judicial process or hearing, and Seller hereby expressly waives any defenses Seller might otherwise have to require Buyers to enforce their rights by judicial process. Seller also waives any defense Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or from any other election of remedies. Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm's length. (m) Upon the occurrence and during the continuance of an Event of Default, Buyers shall without regard to the adequacy of the security for the obligations, be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession of and protect, collect, manage, liquidate, and sell the Purchased Assets and any other Collateral or any portion thereof, collect the payments due with respect to the Purchased Assets and any other Collateral or any portion thereof, and do anything that Buyers are authorized hereunder to do. Seller shall pay all costs and expenses incurred by Buyers in connection with the appointment and activities of such receiver. 12. RECORDING OF COMMUNICATIONS EACH BUYER AND SELLER SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION) FROM TIME TO TIME TO MAKE OR CAUSE TO BE MADE TAPE RECORDINGS OF COMMUNICATIONS BETWEEN ITS EMPLOYEES AND THOSE OF THE OTHER PARTY WITH RESPECT TO TRANSACTIONS. EACH BUYER AND SELLER HEREBY CONSENTS TO THE ADMISSIBILITY OF SUCH TAPE RECORDINGS IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, AND AGREES THAT A DULY AUTHENTICATED TRANSCRIPT OF SUCH A TAPE RECORDING SHALL BE DEEMED TO BE A WRITING CONCLUSIVELY EVIDENCING THE PARTIES' AGREEMENT. 13. SINGLE AGREEMENT Buyers and Seller acknowledge that, and have entered hereinto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, -46- (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. 14. NOTICES AND OTHER COMMUNICATIONS All notices, consents, approvals and requests required or permitted hereunder shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) hand delivery, with proof of attempted delivery, (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or (c) by facsimile (with transmission confirmation) provided that such faxed notice must also be delivered by one of the means set forth in (a) or (b) above, to applicable address specified below or at such other address and person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section. All notices, consents, approvals and requests directed to Seller (other than Confirmations) shall be delivered to the following: Capital Trust, Inc. 410 Park Avenue, 14th Floor, New York, New York 10022, Attn: Brian H. Oswald, Facsimile Number: 212-655-0044, with a copy to: Paul, Hastings, Janofsky & Walker LLP, 75 E. 55th Street, New York, New York 10022, Attn: Robert J. Grados, Esq., Facsimile Number: 212-230-7830; all notices, consents, approvals and requests directed to Buyers shall be delivered to the following: Bank of America, N.A./Banc of America Securities LLC, Mail Code NC1-007-21-02, 214 North Tryon Street, 21st Floor, Charlotte, North Carolina 28255, Attention: Angie Dugick, Facsimile Number: 704-386-1094. A notice shall be deemed to have been given: (a) in the case of hand delivery, at the time of delivery, (b) in the case of expedited prepaid delivery upon the first attempted delivery on a Business Day, or (c) in the case facsimile, upon receipt of transmission confirmation, provided that such faxed notice was also delivered as required in this Section. A party receiving a notice which does not comply with the technical requirements for notice under this Section may elect to waive any deficiencies and treat the notice as having been properly given. 15. ENTIRE AGREEMENT; SEVERABILITY This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. 16. NON-ASSIGNABILITY 16.1 The rights and obligations of the parties under the Transaction Documents and under any Transaction shall not be assigned by either party without the prior written consent of the other party; provided, that Buyers shall be permitted to assign such rights and obligations without the consent of Seller in the case of an assignment by Buyers to any Qualifying Assignee. In the event of any such assignment by Buyers, Buyers shall so notify Seller; provided, that -47- Seller shall not be obligated to deal directly with any party other than Buyers in connection with any Transactions, or to pay or reimburse Buyers or any other Person for any fees, costs, expenses or other amounts that would not have been incurred had no such assignment taken place. 16.2 Buyers shall be entitled to issue to any Qualified Assignee one or more participation interests with respect to any or all of the Transactions, (i) Buyers shall act as exclusive agent for all participants in any dealings with Seller in connection with all Transactions, (ii) Seller shall not be obligated to deal directly with any party other than Buyers in connection with any Transactions, or to pay or reimburse Buyers or any other Person for any fees, costs, expenses or other amounts that would not have been incurred had no participation interests in the related Transactions been issued and (iii) Buyers shall maintain unilateral control over all discretionary determinations to be made by it hereunder, including without limitation, determinations as to eligibility and purchase of Eligible Loans and Eligible Securities, the Market Value thereof, the granting of waivers of noncompliance with the terms of the Transaction Documents, the granting of extensions of the Termination Date and/or increases in the Maximum Facility Amount and the exercise of rights and remedies upon the occurrence and during the continuation of an Event of Default. 16.3 Subject to the foregoing, the Transaction Documents and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Nothing in the Transaction Documents, express or implied, shall give to any Person, other than the parties to the Transaction Documents and their respective successors, any benefit or any legal or equitable right, power, remedy or claim under the Transaction Documents. 17. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 17.1 Each party irrevocably and unconditionally (i) submits to the non-exclusive jurisdiction of any United States Federal or New York State court sitting in Manhattan, and any appellate court from any such court, solely for the purpose of any suit, action or proceeding brought to enforce its obligations under this Agreement or relating in any way to this Agreement or any Transaction under this Agreement and (ii) waives, to the fullest extent it may effectively do so, any defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and any right of jurisdiction on account of its place of residence or domicile. 17.2 To the extent that either party has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) with respect to itself or any of its property, such party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under this Agreement or relating in any way to this Agreement or any Transaction under this Agreement. 17.3 The parties hereby irrevocably waive, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding and irrevocably consent to the service of any summons and complaint and any other -48- process by the mailing of copies of such process to them at their respective address specified herein. The parties hereby agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 17 shall affect the right of Buyers to serve legal process in any other manner permitted by law or affect the right of Buyers to bring any action or proceeding against Seller or its property in the courts of other jurisdictions. 17.4 EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER. 18. GOVERNING LAW This Agreement shall be governed by the laws of the State of New York without giving effect to the conflict of law principles thereof. 19. NO WAIVERS, ETC. No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the foregoing, the failure to give a notice pursuant to Section 3.1 hereof will not constitute a waiver of any right to do so at a later date. 20. USE OF EMPLOYEE PLAN ASSETS (a) If assets of an employee benefit plan subject to any provision of the Employee Retirement Income Security Act of 1974 ("ERISA") are intended to be used by either party hereto (the "Plan Party") in a Transaction, the Plan Party shall so notify the other party prior to the Transaction. The Plan Party shall represent in writing to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be required so to proceed. (b) Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyers its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition. (c) By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyers that since the date of Seller's latest such financial statements, there has been no material adverse change in Seller's business, operations, or financial condition which Seller has not disclosed to Buyers, and (ii) to agree to provide Buyers with future audited -49- and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party. 21. INTENT (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (b) It is understood that either party's right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 11 hereof is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. (c) The parties agree and acknowledge that if a party hereto is an "insured depository institution," as such term is defined in the Federal Deposit Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a "qualified financial contract", as that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable). (d) It is understood that this Agreement constitutes a "netting contract" as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a "covered contractual payment entitlement" or "covered contractual payment obligation", respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a "financial institution" as that term is defined in FDICIA). 22. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS The parties acknowledge that they have been advised that: (a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission ("SEC") under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other party with respect to any Transaction hereunder; (b) in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and (c) in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a -50- deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable. 23. NO RELIANCE Each Buyer and Seller hereby acknowledges, represents and warrants to the other that, in connection with the negotiation of, the entering into, and the performance under, the Transaction Documents and each Transaction thereunder: 23.1 It is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the other party to the Transaction Documents, other than the representations expressly set forth in the Transaction Documents. 23.2 It has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent that it has deemed necessary, and it has made its own investment, hedging and trading decisions (including decisions regarding the suitability of any Transaction) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the other party. 23.3 It is a sophisticated and informed Person that has a full understanding of all the terms, conditions and risks (economic and otherwise) of the Transaction Documents and each Transaction thereunder and is capable of assuming and willing to assume (financially and otherwise) those risks; 23.4 It is entering into the Transaction Documents and each Transaction thereunder for the purposes of managing its borrowings or investments or hedging its underlying assets or liabilities and not for purposes of speculation; and 23.5 It is not acting as a fiduciary or financial, investment or commodity trading advisor for the other party and has not given the other party (directly or indirectly through any other Person) any assurance, guaranty or representation whatsoever as to the merits (either legal, regulatory, tax, business, investment, financial accounting or otherwise) of the Transaction Documents or any Transaction thereunder. 24. INDEMNITY Seller hereby agrees to indemnify Buyers, Buyers' designees and each of the officers, directors, employees and agents ("Indemnified Parties") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, taxes (including stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Purchased Assets or in connection with any of the transactions contemplated by this Agreement and the documents delivered in connection herewith, other than income taxes of Buyers), fees, actual out-of-pocket costs and expenses (including attorneys fees and disbursements actually incurred to external counsel) or disbursements (all of the foregoing, collectively "Indemnified Amounts") which may at any time (including, without limitation, such time as this Agreement shall no longer be in effect and the Transactions shall have been repaid in full) be imposed on or asserted against any Indemnified Party in any way whatsoever arising out -51- of or in connection with, or relating to, this Agreement or any Transactions hereunder or any action taken or omitted to be taken by any Indemnified Party under or in connection with any of the foregoing; provided, that Seller shall not be liable for Indemnified Amounts resulting from the gross negligence or willful misconduct or a bad act of any Indemnified Party. Without limiting the generality of the foregoing, Seller agrees to hold Buyers harmless from and indemnify Buyers against all Indemnified Amounts with respect to all Purchased Assets relating to or arising out of any violation or alleged violation of any environmental law, rule or regulation or any consumer credit laws, including without limitation ERISA, the Truth in Lending Act and/or the Real Estate Settlement Procedures Act, that, in each case, results from anything other than Buyers' gross negligence or willful misconduct. In any suit, proceeding or action brought by Buyers in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, Seller will save, indemnify and hold Buyers harmless from and against actual out-of-pocket expenses, and all actual loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by Seller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from Seller. Seller also agrees to reimburse Buyers as and when billed by Buyers for Buyers' costs and expenses incurred in connection with Buyers' due diligence reviews with respect to the Purchased Assets (subject to a maximum of $7,500 per Purchased Asset) and the enforcement or the preservation of Buyers' rights under this Agreement or any Transaction contemplated hereby, including without limitation the fees and disbursements of its external counsel. Seller hereby acknowledges that, the obligation of Seller hereunder is a recourse obligation of Seller. 25. DUE DILIGENCE Seller acknowledges that Buyers have the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon prior written notice to Seller, Buyers or their authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyers a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loan Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyers may enter into Transactions with Seller based solely upon the information provided by Seller to Buyers and the representations, warranties and covenants contained herein, and that Buyers, at their option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyers may underwrite such Purchased Loans themselves or engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyers and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyers and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller. Seller further agrees that Seller shall reimburse -52- Buyers for any and all out-of-pocket costs and expenses reasonably incurred by Buyers in connection with Buyers' activities pursuant to this Section 25 following an Event of Default. 26. SERVICING 26.1 Notwithstanding the purchase and sale of the Purchased Loans hereby, subject to Section 26.3, the Servicer shall continue to service the Purchased Loans for the benefit of Buyers and, if Buyers shall exercise their rights to pledge or hypothecate the Purchased Loans prior to the Termination Date pursuant to Section 7, Buyers' assigns. Seller shall service or cause the Servicer to service the Purchased Loans in accordance with Accepted Servicing Practices. 26.2 Seller agrees that Buyers are the owner of all servicing records, including but not limited to any and all servicing agreements (the "Servicing Agreements"), files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of Purchased Loans (the "Servicing Records") so long as the Purchased Loans are subject to this Agreement. Seller grants Buyers a security interest in all servicing fees and rights relating to the Purchased Loans and all Servicing Records to secure the obligation of Seller or its designee to service in conformity with this Section and any other obligation of Seller to Buyers. Seller covenants to safeguard such Servicing Records and to deliver them promptly to Buyers or their designee (including the Custodian) at Buyers' request. 26.3 Upon the occurrence and continuance of an Event of Default, Buyers may, in their sole discretion, (i) sell their right to the Purchased Loans on a servicing released basis or (ii) terminate any Servicer of the Purchased Loans with or without cause, in each case without payment of any termination fee. 26.4 Seller hereby irrevocably assign all rights, title and interest in the Servicing Agreements in the Purchased Loans to Buyers. 26.5 Seller shall cause each Servicer engaged by Seller to execute a servicer notice and agreement in the form of Exhibit X attached hereto (a "Servicer Notice and Agreement")pursuant to which such Servicer (i) agrees to deposit all Income in respect of the Purchased Loans serviced by it directly into the Cash Management Account and (ii) acknowledges Buyers' rights under Section 26.2, Section 26.3 and Section 26.4 of this Agreement. 27. MISCELLANEOUS 27.1 Time is of the essence under the Transaction Documents and all Transactions thereunder and all references to a time shall mean New York time in effect on the date of the action unless otherwise expressly stated in the Transaction Documents. 27.2 All rights, remedies and powers of Buyers and Seller hereunder and in connection herewith are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers of Buyers or Seller, as applicable, whether -53- under law, equity or agreement. In addition to the rights and remedies granted to it in this Agreement, Buyers shall have all rights and remedies of a secured party under the UCC and Seller shall have all rights and remedies of a debtor under the UCC. 27.3 The Transaction Documents may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. 27.4 The headings in the Transaction Documents are for convenience of reference only and shall not affect the interpretation or construction of the Transaction Documents. 27.5 Subject to the limits described in Section 2.7, without limiting the rights and remedies of Buyers under the Transaction Documents, Seller shall pay Buyers' out-of-pocket costs and expenses, including fees actually incurred and expenses of accountants, attorneys and advisors, incurred in connection with the preparation, negotiation, execution and consummation of, and any amendment, supplement or modification to, the Transaction Documents and the Transactions thereunder. Seller agrees to pay Buyers on demand all costs and expenses (including expenses actually incurred to external counsel for legal services of every kind) of any subsequent enforcement of any of the provisions hereof, or of the performance by Buyers of any obligations of Seller in respect of the Purchased Securities, or any actual or attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of any of the Purchased Assets and for the custody, care or preservation of the Purchased Assets (including insurance costs) and defending or asserting rights and claims of Buyers in respect thereof, by litigation or otherwise. In addition, Seller agrees to pay Buyers on demand all costs and expenses (including expenses of counsel) incurred in connection with the maintenance of the Cash Management Account and registering the Purchased Securities in the name of Buyers or their nominee. All such expenses shall be recourse obligations of Seller to Buyers under this Agreement. 27.6 Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or be invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 27.7 This Agreement and the Letter Agreement contain a final and complete integration of all prior expressions by the parties with respect to the subject matter hereof and thereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings. 27.8 The parties understand that this Agreement is a legally binding agreement that may affect such party's rights. Each party represents to the other that it has received legal advice from counsel of its choice regarding the meaning and legal significance of this Agreement and that it is satisfied with its legal counsel and the advice received from it. -54- 27.9 Should any provision of this Agreement require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any Person by reason of the rule of construction that a document is to be construed more strictly against the Person who itself or through its agent prepared the same, it being agreed that all parties have participated in the preparation of this Agreement. 27.10 The parties recognize that each Transaction is a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended. Buyers' duty with respect to the custody, safekeeping and physical preservation of any Purchased Assets in its possession shall be to deal with such Purchased Assets in the same manner as Buyers deal with similar property for its own account. None of Buyers or any of Buyers' affiliates, directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Purchased Assets or for any delay in doing so, and except as otherwise expressly provided in this Agreement, no such Person shall be under any obligation to sell or otherwise disposed of any Purchased Assets upon the request of Seller or otherwise. All authorizations and agencies contained herein with respect to the Purchased Assets are irrevocable and are powers coupled with an interest. 27.11 In addition to any rights and remedies of Buyers provided by this Agreement and by applicable law, each Buyer shall have the right, without prior notice to Seller, any such notice being expressly waived by Seller to the extent permitted by applicable law, upon any amount becoming due and payable by Seller hereunder (whether at the Termination Date, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final) in any currency, and any other credits, indebtedness or claims in any currency, in each case, whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by either Buyer or any Affiliate thereof to or for the credit or the account of Seller ; provided that the right of set-off hereunder may be exercised by Buyers only (i) if an Event of Default has occurred and is continuing and (ii) after, or in connection with, the application by Buyers of all amounts then held in the Cash Management Account to the obligations of Seller hereunder (unless Buyers shall be stayed or otherwise prevented from applying such amounts to the obligations of Seller hereunder, in which case Buyers may exercise such right of set-off without regard to this clause (ii)). If any such obligation is unascertained, Buyers shall account to Seller when the obligation is ascertained. Each Buyer agrees promptly to notify Seller after any such set-off and application made by such Buyer; provided, that the failure to give such notice shall not affect the validity of such set-off and application. -55- IN WITNESS WHEREOF, the parties have executed this Agreement as of the 4th day of March, 2005. BUYERS: ------- BANK OF AMERICA, N.A. By:/s/ Allen D. Shifflet --------------------------------- Name: Allen D. Shifflet Title: Managing Director BANK OF AMERICA SECURITIES LLC By:/s/ Allen D. Shifflet --------------------------------- Name: Allen D. Shifflet Title: Managing Director SELLER: ------- CAPITAL TRUST, INC. By:/s/ Brian H. Oswald --------------------------------- Name: Brian H. Oswald Title: Chief Financial Officer EXHIBITS EXHIBIT I-A Form of Confirmation EXHIBIT I-B Form of UCC Financing Statement EXHIBIT I-C Form of UCC Financing Statement Amendment EXHIBIT II Authorized Representatives of Seller EXHIBIT III Monthly Reporting Package EXHIBIT IV Form of Custodial Agreement EXHIBIT V Form of Power of Attorney EXHIBIT VI Representations and Warranties Regarding Individual Purchased Loans EXHIBIT VII Purchased Loan Information EXHIBIT VIII Transaction Procedure EXHIBIT IX Redirection Letter I-A-1 EXHIBIT I-A CONFIRMATION STATEMENT CAPITAL TRUST, INC. Ladies and Gentlemen: [Banc of America Securities LLC] [Bank of America, N.A.] is pleased to deliver its written CONFIRMATION of its agreement to enter into the Transaction pursuant to which [Banc of America Securities LLC] [Bank of America, N.A.] shall purchase from you the Purchased Assets identified below pursuant to the Master Repurchase Agreement among BANC OF AMERICA SECURITIES LLC and BANK OF AMERICA, N.A. (the "Buyers"), and CAPITAL TRUST, INC. ("Seller"), dated as of March __, 2005 (the "Agreement"; capitalized terms used herein without definition have the meanings given in the Agreement), as follows below and on the attached Schedule 1:
Purchase Date: __________, 20__ Repurchase Date __________, 20__ Purchased Loans: Purchased Securities Description: CUSIP # (if applicable)______ ___________________________ Aggregate Principal Amount of Purchased Assets (Original/Current): ___________________________ Advance Rate: Interest Rate: Percentage Class Purchased: _________% Market Value: $ Purchase Price: $ Governing Agreements/Trustee: As identified on attached Schedule 1 ---------- Additional Terms: ____________________________ Name and address for communications: Buyers: Bank of America, N.A. Banc of America Securities LLC Mail Code: NC1-007-21-02 Hearst Tower
I-1
214 North Tryon Street, 21st Floor Charlotte, NC 28255 Attention: Angie Dugick Telephone: (704) 388-3372 Facsimile: (704) 386-1094 Seller: Capital Trust, Inc. 410 Park Avenue 14th Floor New York, New York 10022 Attention: Brian H. Oswald Telephone: (212) 655-0256 Facsimile: (212) 655-0044 BANK OF AMERICA, N.A. By: ___________________________________________ Name:______________________________________ Title:_____________________________________ BANC OF AMERICA SECURITIES LLC By: ___________________________________________ Name:______________________________________ Title:_____________________________________ AGREED AND ACKNOWLEDGED: [_______________________________] By: [_______________________] [_______________________] By: ___________________________________________ Name:______________________________________ Title:_____________________________________
I-2 Schedule 1 to Confirmation Statement Purchased Securities/Name of Issuer/Title of Security*: Aggregate Principal Amount (Original/Current): CUSIP NO.: Securitization Documents (including Master Servicer, Special Servicer and Trustee): ________________________________________________________________________________ Purchased Loans/Name of Borrower*: Aggregate Principal Amount (Original/Current): Purchased Loan Documents: _________________________ * Include a separate entry for each Purchased Security and/or each Purchased Asset. S1-1 Summary of Purchased Assets Purchased Asset: ______
Seller Buyers' Original Buyers' Spread LIBOR Class, if Outstanding Owned Market Rating, Purchase Purchase over Reset any Balance Face Value if any Percentage Price LIBOR Period - ---------- -------------- -------- --------- --------- ------------- ---------- ---------- --------
S1-2 EXHIBIT I-B FORM OF UCC FINANCING STATEMENT [See attached] [GRAPHIC OMITTED] UCC FINANCING STATEMENT FOLLOW INSTRUCTIONS (front and back) CAREFULLY
======================================================================== THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY | A. NAME & PHONE CONTACT AT FILER [optional] | | | | Scott Ryan, Esquire (704) 348-5321 | | | |______________________________________________________________________| | B. SEND ACKNOWLEDGMENT TO: (Name and Address) | | ______ ______ | | | | | | | | | | | Cadwalader, Wickersham & Taft LLP | | | | 227 West Trade Street | | | | Suite 2400 | | | Charlotte, North Carolina 28202 | | ATTN: Scott Ryan | | | | | ==================================================================================================================================== 1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or combine names --- ------------------------------------------------------------------------------------------------------------------------------ |1a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |1b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | - ------------------------------------------------------------------|----------------------------------|--------------------|--------- 1c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY | | | | - ------------------------------------------------------------------|----------------------------------|------------------------------ 1d. TAX ID#: SSN OR EIN |ADD'L INFO RE |1e. TYPE OF ORGANIZATION |1f. JURISDICTION OF ORGANIZATION |1g.ORGANIZATIONAL ID #, if any |ORGANIZATION | | | |_| NONE |DEBTOR | | | ==================================================================================================================================== 2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names --- ------------------------------------------------------------------------------------------------------------------------------ |2a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |2b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | - ------------------------------------------------------------------|----------------------------------|--------------------|--------- 2c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY | | | | - ------------------------------------------------------------------|----------------------------------|------------------------------ 2d. TAX ID#: SSN OR EIN |ADD'L INFO RE |2e. TYPE OF ORGANIZATION |2f. JURISDICTION OF ORGANIZATION |2g.ORGANIZATIONAL ID #, if any |ORGANIZATION | | | |_| NONE |DEBTOR | | | ==================================================================================================================================== 3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured party name (3a or 3b) --- ------------------------------------------------------------------------------------------------------------------------------ |3a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |3b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | - ------------------------------------------------------------------|----------------------------------|--------------------|--------- 3c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY | | | | ==================================================================================================================================== 4. This FINANCING STATEMENT covers the following collateral: All of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations) and all "securities accounts" (as defined in Section 8-501(a) of the UCC) created in connection therewith to which any or all of such Purchased Securities are credited; (b) the Purchased Loans purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations), Servicing Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account created in connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the Hedging Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) files relating to any and all of the foregoing; ====================================================================================================================================
S1-3
==================================================================================================================================== all as further described on Annex I attached hereto. ==================================================================================================================================== 5. ALTERNATIVE DESIGNATION (if applicable): |_|LESSEE/LESSOR |_|CONSIGNEE/CONSIGNOR |_|BAILEE/BAILOR |_|SELLER/BUYER |_|AG. LIEN |_|NON-UCC FILING ==================================================================================================================================== 6. |_|This FINANCING STATEMENT is to be filed | 7. Check to REQUEST SEARCH __ __ __ [for record](or recorded) in the REAL | REPORT(S) on Debtor(s) | |All Debtors | |Debtor 1 | |Debtor 2 ESTATE RECORDS. Attach addendum. | [ADDITIONAL FEE][optional] |__| |__| |__| [if applicable] | ==================================================================================================================================== 8. OPTIONAL FILER REFERENCE DATA Maryland-State Department of Assessments and Taxation ==================================================================================================================================== FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07/29/98) NATUCC1 5/4/01 C T System Online
-4- ANNEX I attached to and made a part of Uniform Commercial Code ("UCC") Financing Statement, Form UCC-1 Debtor: Secured Party: The UCC Financing Statement, Form UCC-1, to which this Annex I is attached and of which it forms a part, covers all of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations and on Schedule I to this Annex I) and all "securities accounts" (as defined in Section 8-501(a) of the UCC) created in connection therewith to which any of all of such Purchased Securities are credited; (b) the Purchased Loans purchased pursuant by the Secured Party to the Agreement (and identified in the Confirmations and on Schedule I to this Annex I), Servicing Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account created in connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the Hedging Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing. The following terms shall have the following meanings: "Agreement" shall mean the Master Repurchase Agreement dated as of March 4, 2005, by and among the Debtor and the Buyers, as the same may be amended, supplemented or otherwise changed and in effect from time to time. "B-Notes" shall mean (a) junior notes in commercial mortgage loans having an "A/B" structure, (b) junior or senior or pari-passu participations in performing commercial mortgage loans, or (c) participations in instruments of a type referred to in the preceding clause. "Buyers" shall mean the Secured Party and Banc of America Securities LLC. "Cash Management Account" shall mean a segregated interest bearing account, in the name of the Buyers, established at the Depository. "CMBS" shall mean performing commercial mortgage-backed securities that (A) either (1) have a rating of at least "B+" from Standard and Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated securities, in each case which are acceptable to the Buyers in their sole discretion and (B) are denominated in United States Dollars. "Confirmation" shall mean a written confirmation of each Transaction sent from the Buyers and delivered to the Debtor in the form of Exhibit I to the Agreement. "Debtor" shall mean Capital Trust, Inc. "Depository" shall mean PNC Bank, N.A. or any successor Depository comparably rated and qualified and appointed by the Buyers with the prior written consent of Debtor (which consent shall not be unreasonably withheld or delayed). "Eligible Assets" shall mean, collectively, the Eligible Securities and the Eligible Loans. "Eligible B Notes" shall mean B-Notes secured by liens on properties described in the definition of "Eligible Loans", in each case which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such participation interest or junior note are derived or securing indirectly such participation interest or junior note (including for purposes of this calculation, such participation interest or junior note and any loan senior to such participation interest or junior note and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible First Lien Loans" shall mean performing loans, or senior participations therein, secured by first liens in properties described in the definition of "Eligible Loans" which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property securing such loan (including for purposes of this calculation, such loan and any loan secured by a first lien on the related Mortgaged Property and excluding any more junior loan) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible Loans" shall mean any of the following types of performing loans, which are otherwise acceptable to the Buyers in their sole discretion and are secured directly or indirectly by or the payments on which are derived from a property that may include, but not be limited to, multifamily, retail, office, industrial, warehouse, condominium, or hospitality property (or any other property type acceptable to the Buyers in the exercise of their good faith business judgment) that is located in the United States of America: (i) Eligible Mezzanine Loans; (ii) Eligible First Lien Loans; and (iii) Eligible B Notes. -6- "Eligible Mezzanine Loans" shall mean performing loans or participations therein evidenced by mezzanine notes and secured by pledges of ownership interests in entities that directly or indirectly own properties described in the definition of "Eligible Loans" (or participation interests in such performing mezzanine loans), which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such mezzanine loan are derived (including for purposes of this calculation, such mezzanine loan and any loan senior to such mezzanine loan and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater than 1.05X. "Eligible Securities" shall mean (i) CMBS which are acceptable to the Buyers in their sole discretion and (ii) any real estate investment trust debt securities or collateralized debt obligation securities which are not described in clause (i) but which the Buyers elect to purchase in its sole discretion. "Hedging Agreements" shall mean, with respect to any of all of the Purchased Assets, and futures options contract or any interest rate swap, cap or collar agreement or similar derivative instruments providing for protection against fluctuations in interest rates or the exchange of nominal interest obligations, either generally or under specific contingencies, entered into by Debtor; provided, that any hedging shall be mutually agreed upon by Debtor and the Buyers; provided further, that should Debtor and the Buyers agree to hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty provided that Bank of America, N.A. provides commercially reasonable market terms. "Income" shall mean with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon. "Mortgage" shall mean a mortgage, deed of trust, deed to secure debt or other instrument, creating a valid and enforceable lien on or an ownership interest in an estate in fee simple or leasehold estate in real property and the improvements thereon, securing a mortgage note or similar evidence of indebtedness. "Mortgage Note" shall mean a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property" shall mean the real property securing repayment of the debt evidenced by a Mortgage Note. "Mortgagor" shall mean the obligor on a Mortgage Note and the grantor of the related Mortgage. "Purchased Assets" shall mean, collectively, the Purchased Securities and the Purchased Loans. "Purchased Loans" shall mean (i) with respect to any Transaction, the Eligible Loans sold by Debtor to the Buyers in such Transaction until such Eligible Loans are repurchased pursuant to the Agreement, including, without limitation, the loans listed in Schedule I hereto and (ii) with respect to the Transactions in general, all Eligible Loans sold by Debtor to the Buyers and any additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of the Agreement until such Eligible Loans are repurchased pursuant to the Agreement. -7- "Purchased Securities" shall mean, (i) with respect to any Transaction, the Eligible Securities sold by Debtor to the Buyers in such Transaction until such Eligible Securities are repurchased pursuant to the Agreement, including, without limitation, the securities listed in Schedule I hereto until such Securities are repurchased pursuant to the Agreement and (ii) with respect to the Transactions in general, all Eligible Securities sold by Debtor to the Buyers and any additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of the Agreement until such Eligible Securities are repurchased pursuant to the Agreement. Whenever Purchased Securities are rated by more than one Rating Agency and a split rating applies to such Purchased Securities (i.e., one Rating Agency rates such Purchased Securities at a lower rating level than the other of such Rating Agencies), then for all purposes of the Agreement where a rating is to be selected, the lower of the ratings shall apply. "Rating Agency" shall mean either of Fitch Inc. or Standard & Poor's. "Servicing Agreement" shall mean any and all agreements relating to the servicing of the Purchased Loans so long as the Purchased Loans are subject to the Agreement. "Servicing Records" shall mean any and all records relating to or evidencing the servicing of Purchased Loans so long as the Purchased Loans are subject to the Agreement, including any and all files, documents, records, databases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records and any other such records. "Stressed DSCR" shall mean, with respect to each Eligible Asset, the stressed debt service coverage ratio as calculated in accordance with Fitch Inc.'s then current criteria. "Stressed LTV" shall mean, with respect to each Eligible Asset, the stressed loan-to-value ratio as calculated in accordance with Standard & Poor's criteria. "Transaction" shall mean any transaction the Buyers and Debtor may enter into from time to time pursuant to which Debtor agrees to transfer to the Buyers Purchased Assets against the transfer of funds by the Buyers, with a simultaneous agreement by the Buyers to transfer to Debtor such Purchased Assets at a date certain or on demand against the transfer of funds by Debtor. "UCC" shall mean the Uniform Commercial Code as in effect from time to time in the State of New York. Any attempt by a Person, other than a Buyer, to obtain an ownership interest or a security interest in the Collateral without the prior written consent of the Buyers will violate the rights of the Buyers. The parties intend that the Transactions under the Agreement constitute purchases and sales of the property subject thereto. This financing statement shall not be construed as evidence to the contrary. FILING LOCATION: Maryland State Department of Assessments and Taxation -8- SCHEDULE I [attached] EXHIBIT I-C FORM OF UCC FINANCING STATEMENT AMENDMENT [See attached] [GRAPHIC OMITTED] UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS (front and back) CAREFULLY
======================================================================== | A. NAME & PHONE CONTACT AT FILER [optional] | | | | Scott Ryan, Esquire | | | |______________________________________________________________________| | B. SEND ACKNOWLEDGMENT TO: (Name and Address) | | ______ ______ | | | | | | | | | | | Cadwalader, Wickersham & Taft | | | | 227 West Trade Street | | | | Suite 2400 | | | Charlotte, North Carolina 28202 | | ATTN: Scott Ryan | | | | | THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY ==================================================================================================================================== 1a. INITIAL FINANCING STATEMENT FILE # |1b. This FINANCING STATEMENT AMENDMENT is | to be filed [for record] (or recorded) in the ||_| REAL ESTATE RECORDS. ==================================================================================================================================== 2. |_| TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s) of the Secured Party authorizing this Termination Statement. ==================================================================================================================================== 3. |_| CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured Party authorizing this Continuation Statement is continued for the additional period provided by applicable law. ==================================================================================================================================== 4. |_| ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c; and also give name of assignor in item 9. ==================================================================================================================================== 5. |_| AMENDMENT (PARTY INFORMATION): This Amendment affects |_| Debtor or |_| Secured Party of record. Check only one of these two boxes. --- Also check one of the following three boxes and provided appropriate information in items 6 and/or 7. --- __ __ __ | | CHANGE name and/or address: Give current | | DELETE name: Give record name | | ADD name: Complete item 7a or 7b, |__| record name in time 6a or 6b; also give |__| to be deleted in item 6a or 6b. |__| and also item 7c; also complete new name (if name change) in item 7a or items 7d-7g (if applicable) 7b and/or new address (if address change) in item 7c. ==================================================================================================================================== 6. CURRENT RECORD INFORMATION: ------------------------------------------------------------------------------------------------------------------------------ |6a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |6b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | ==================================================================================================================================== 7. CHANGED (NEW) OR ADDED INFORMATION: ------------------------------------------------------------------------------------------------------------------------------ |7a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |7b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | - ------------------------------------------------------------------|----------------------------------|--------------------|--------- 7c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY | | | | - ------------------------------------------------------------------|----------------------------------|------------------------------ 7d. TAX ID#: SSN OR EIN |ADD'L INFO RE |7e. TYPE OF ORGANIZATION |7f. JURISDICTION OF ORGANIZATION |7g.ORGANIZATIONAL ID #, if any |ORGANIZATION | | | |_| NONE |DEBTOR | | | ==================================================================================================================================== 8. AMENDMENT (COLLATERAL CHANGE): check only one box. Describe collateral |_|deleted or |_|added, or give entire |_|restated collateral description, or describe collateral |_|assigned. All of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations) and all "securities accounts" (as defined in Section 8-501(a) of the UCC) created in connection therewith to which any or all of such Purchased Securities are credited; (b) the Purchased Loans purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations), Servicing Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account created in connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the Hedging Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) files relating to any and all of the foregoing; all as further described on Annex I attached hereto. ==================================================================================================================================== 9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor, check here |_| and enter name of DEBTOR authorizing this Amendment. ------------------------------------------------------------------------------------------------------------------------------ |9a. ORGANIZATION'S NAME | | | | | | | OR |-----------------------------------------------------------|----------------------------------|--------------------|--------- |9b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX | | | | ==================================================================================================================================== 10. OPTIONAL FILER REFERENCE DATA ==================================================================================================================================== FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCC3) (REV. 07/29/98) NATUCC3 4/23/01 C T System Online
ANNEX I attached to and made a part of Uniform Commercial Code ("UCC") Financing Statement, Form UCC-1 Debtor: Secured Party: The UCC Financing Statement, Form UCC-1, to which this Annex I is attached and of which it forms a part, covers all of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations and on Schedule I to this Annex I) and all "securities accounts" (as defined in Section 8-501(a) of the UCC) created in connection therewith to which any of all of such Purchased Securities are credited; (b) the Purchased Loans purchased pursuant by the Secured Party to the Agreement (and identified in the Confirmations and on Schedule I to this Annex I), Servicing Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account created in connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the Hedging Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to or constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing. The following terms shall have the following meanings: "Agreement" shall mean the Master Repurchase Agreement dated as of March 4, 2005, by and among the Debtor and the Buyers, as the same may be amended, supplemented or otherwise changed and in effect from time to time. "B-Notes" shall mean (a) junior notes in commercial mortgage loans having an "A/B" structure, (b) junior or senior or pari-passu participations in performing commercial mortgage loans, or (c) participations in instruments of a type referred to in the preceding clause. "Buyers" shall mean the Secured Party and Banc of America Securities LLC. "Cash Management Account" shall mean a segregated interest bearing account, in the name of the Buyers, established at the Depository. "CMBS" shall mean performing commercial mortgage-backed securities that (A) either (1) have a rating of at least "B+" from Standard and Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated securities, in each case which are acceptable to the Buyers in their sole discretion and (B) are denominated in United States Dollars. "Confirmation" shall mean a written confirmation of each Transaction sent from the Buyers and delivered to the Debtor in the form of Exhibit I to the Agreement. "Debtor" shall mean Capital Trust, Inc. "Depository" shall mean PNC Bank, N.A. or any successor Depository comparably rated and qualified and appointed by the Buyers with the prior written consent of Debtor (which consent shall not be unreasonably withheld or delayed). "Eligible Assets" shall mean, collectively, the Eligible Securities and the Eligible Loans. "Eligible B Notes" shall mean B-Notes secured by liens on properties described in the definition of "Eligible Loans", in each case which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such participation interest or junior note are derived or securing indirectly such participation interest or junior note (including for purposes of this calculation, such participation interest or junior note and any loan senior to such participation interest or junior note and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible First Lien Loans" shall mean performing loans, or senior participations therein, secured by first liens in properties described in the definition of "Eligible Loans" which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property securing such loan (including for purposes of this calculation, such loan and any loan secured by a first lien on the related Mortgaged Property and excluding any more junior loan) does not exceed 95%, and (ii) the Stressed DSCR is greater than 1.05X. "Eligible Loans" shall mean any of the following types of performing loans, which are otherwise acceptable to the Buyers in their sole discretion and are secured directly or indirectly by or the payments on which are derived from a property that may include, but not be limited to, multifamily, retail, office, industrial, warehouse, condominium, or hospitality property (or any other property type acceptable to the Buyers in the exercise of their good faith business judgment) that is located in the United States of America: (i) Eligible Mezzanine Loans; (ii) Eligible First Lien Loans; and (iii) Eligible B Notes. -13- "Eligible Mezzanine Loans" shall mean performing loans or participations therein evidenced by mezzanine notes and secured by pledges of ownership interests in entities that directly or indirectly own properties described in the definition of "Eligible Loans" (or participation interests in such performing mezzanine loans), which conform in all material respects to the applicable representations and warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for the Mortgaged Property from which payments on such mezzanine loan are derived (including for purposes of this calculation, such mezzanine loan and any loan senior to such mezzanine loan and secured directly or indirectly by the related Mortgaged Property and excluding any more junior loan or participation) does not exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater than 1.05X. "Eligible Securities" shall mean (i) CMBS which are acceptable to the Buyers in their sole discretion and (ii) any real estate investment trust debt securities or collateralized debt obligation securities which are not described in clause (i) but which the Buyers elect to purchase in its sole discretion. "Hedging Agreements" shall mean, with respect to any of all of the Purchased Assets, and futures options contract or any interest rate swap, cap or collar agreement or similar derivative instruments providing for protection against fluctuations in interest rates or the exchange of nominal interest obligations, either generally or under specific contingencies, entered into by Debtor; provided, that any hedging shall be mutually agreed upon by Debtor and the Buyers; provided further, that should Debtor and the Buyers agree to hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty provided that Bank of America, N.A. provides commercially reasonable market terms. "Income" shall mean with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon. "Mortgage" shall mean a mortgage, deed of trust, deed to secure debt or other instrument, creating a valid and enforceable lien on or an ownership interest in an estate in fee simple or leasehold estate in real property and the improvements thereon, securing a mortgage note or similar evidence of indebtedness. "Mortgage Note" shall mean a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage. "Mortgaged Property" shall mean the real property securing repayment of the debt evidenced by a Mortgage Note. "Mortgagor" shall mean the obligor on a Mortgage Note and the grantor of the related Mortgage. "Purchased Assets" shall mean, collectively, the Purchased Securities and the Purchased Loans. "Purchased Loans" shall mean (i) with respect to any Transaction, the Eligible Loans sold by Debtor to the Buyers in such Transaction until such Eligible Loans are repurchased pursuant to the Agreement, including, without limitation, the loans listed in Schedule I hereto and (ii) with respect to the Transactions in general, all Eligible Loans sold by Debtor to the Buyers and any additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of the Agreement until such Eligible Loans are repurchased pursuant to the Agreement. -14- "Purchased Securities" shall mean, (i) with respect to any Transaction, the Eligible Securities sold by Debtor to the Buyers in such Transaction until such Eligible Securities are repurchased pursuant to the Agreement, including, without limitation, the securities listed in Schedule I hereto until such Securities are repurchased pursuant to the Agreement and (ii) with respect to the Transactions in general, all Eligible Securities sold by Debtor to the Buyers and any additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of the Agreement until such Eligible Securities are repurchased pursuant to the Agreement. Whenever Purchased Securities are rated by more than one Rating Agency and a split rating applies to such Purchased Securities (i.e., one Rating Agency rates such Purchased Securities at a lower rating level than the other of such Rating Agencies), then for all purposes of the Agreement where a rating is to be selected, the lower of the ratings shall apply. "Rating Agency" shall mean either of Fitch Inc. or Standard & Poor's. "Servicing Agreement" shall mean any and all agreements relating to the servicing of the Purchased Loans so long as the Purchased Loans are subject to the Agreement. "Servicing Records" shall mean any and all records relating to or evidencing the servicing of Purchased Loans so long as the Purchased Loans are subject to the Agreement, including any and all files, documents, records, databases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records and any other such records. "Stressed DSCR" shall mean, with respect to each Eligible Asset, the stressed debt service coverage ratio as calculated in accordance with Fitch Inc.'s then current criteria. "Stressed LTV" shall mean, with respect to each Eligible Asset, the stressed loan-to-value ratio as calculated in accordance with Standard & Poor's criteria. "Transaction" shall mean any transaction the Buyers and Debtor may enter into from time to time pursuant to which Debtor agrees to transfer to the Buyers Purchased Assets against the transfer of funds by the Buyers, with a simultaneous agreement by the Buyers to transfer to Debtor such Purchased Assets at a date certain or on demand against the transfer of funds by Debtor. "UCC" shall mean the Uniform Commercial Code as in effect from time to time in the State of New York. Any attempt by a Person, other than a Buyer, to obtain an ownership interest or a security interest in the Collateral without the prior written consent of the Buyers will violate the rights of the Buyers. The parties intend that the Transactions under the Agreement constitute purchases and sales of the property subject thereto. This financing statement shall not be construed as evidence to the contrary. FILING LOCATION: Maryland State Department of Assessments and Taxation -15- SCHEDULE I [attached] EXHIBIT II AUTHORIZED REPRESENTATIVES OF SELLER Name Specimen Signature - ---- ------------------ John R. Klopp _______________________________________ Stephen D. Plavin _______________________________________ Brian H. Oswald _______________________________________ II-1 EXHIBIT III MONTHLY SERVICER REPORT ----------------------- FORM OF AGGREGATE COLLATERAL REPORT AGGREGATE COLLATERAL REPORT INFORMATION FOR EACH PURCHASED SECURITY Servicer Loan Number Borrower Name Beginning Principal Balance Interest Rate or Pay Rate Pmt Due Date Principal Paid Accrued Interest Paid Other Interest Paid Senior and Sub Servicer Fees Withheld Borrower Paid Service Fees to Lender Service Fees Paid by Borrower Service Fees Paid by Lender Net Interest Net Remittance Non-Cash Adj. and Advances Ending Principal Balance III-1 EXHIBIT IV FORM OF CUSTODIAL DELIVERY On this ______ of ________, 20__, CAPITAL TRUST, INC. ("Seller"), as Seller under that certain Master Repurchase Agreement, dated as of January __, 2005 (the "Repurchase Agreement") between Seller, BANC OF AMERICA SECURITIES LLC and BANK OF AMERICA, N.A. (together with Banc of America Securities LLC, the "Buyers"), does hereby deliver to [_____________] ("Custodian"), as custodian under that certain Custodial Agreement, dated as of March __, 2005, among Buyers, Seller and Custodian, the Purchased Loan Files with respect to the Purchased Loans to be purchased by Buyers pursuant to the Repurchase Agreement, which Purchased Loans are listed on the Purchased Loan Schedule attached hereto and which Purchased Loans shall be subject to the terms of the Custodial Agreement on the date hereof. With respect to the Purchased Loan Files delivered hereby, for the purposes of issuing the Trust Receipt, the Custodian shall review the Purchased Loan Files to ascertain delivery of the documents listed in Section 3(g) to the Custodial Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Custodial Agreement. IN WITNESS WHEREOF, Seller has caused its name to be signed hereto by its officer thereunto duly authorized as of the day and year first above written. CAPITAL TRUST, INC., a Maryland corporation By: __________________________________ Name:_____________________________ Title:____________________________ IV-1 EXHIBIT V FORM OF POWER OF ATTORNEY "Know All Men by These Presents, that CAPITAL TRUST, INC. ("Seller"), does hereby appoint each of BANC OF AMERICA SECURITIES LLC and BANK OF AMERICA, N.A. ("Buyer"), its attorney-in-fact to act in Seller's name, place and stead in any way which Seller could do with respect to (i) the completion of the endorsements of the Mortgage Notes and the Assignments of Mortgages and the Mezzanine Notes, (ii) the recordation of the Assignments of Mortgages and (iii) the enforcement of Seller's rights under the Purchased Loans purchased by Buyers pursuant to the Master Repurchase Agreement dated as of March ___, 2005 (the "Repurchase Agreement") between Seller and Buyers and to take such other steps as may be necessary or desirable to enforce Buyers' rights against such Purchased Loans, the related Purchased Loan Files and the Servicing Records to the extent that Seller is permitted by law to act through an agent. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Repurchase Agreement. TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OF FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OR SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND SELLER ON ITS OWN BEHALF AND ON BEHALF OF SELLER'S ASSIGNS, HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT. IN WITNESS WHEREOF Seller has caused this Power of Attorney to be executed this __th day of March 2005. CAPITAL TRUST, INC., a Maryland corporation By: __________________________________ Name:_____________________________ Title:____________________________ V-1 EXHIBIT VI REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL PURCHASED LOAN WHICH IS AN ELIGIBLE FIRST LIEN LOAN With respect to each Purchased Loan which is an Eligible First Lien Loan Seller represents and warrants on each Purchase Date as follows, other than as set forth on the exception report provided to Buyers in accordance with the Agreement (the parties agreeing that where a representation or warranty with respect to a Purchased Asset is qualified "to the knowledge" of Seller, the failure of such representation and warranty to be true (without regard to the actual knowledge of such failure by Seller) shall be taken into account in determining the Market value of such Purchased Asset). 1. Purchased Loan Schedule and Purchased Loan Information. The information set forth in the Purchased Loan Schedule and the Purchased Loan Information is complete, true and correct in all material respects as of the date thereof. 2. Ownership of Purchased Loans. Immediately prior to the transfer to Buyers of the Purchased Loans, Seller had good title to, and was the sole owner of, each Purchased Loan. Seller has full right, power and authority to transfer and assign each of the Purchased Loans to or at the direction of Buyers and has validly and effectively conveyed (or caused to be conveyed) to Buyers or their designee all of Seller's legal and beneficial interest in and to the Purchased Loans free and clear of any and all pledges, liens, charges, security interests and/or other encumbrances. The sale of the Purchased Loans to Buyers or their designee does not require Seller to obtain any governmental or regulatory approval or consent that has not been obtained. 3. Payment Record. The Purchased Loan is performing and no scheduled payment of principal and interest under any Purchased Loan was 30 days or more past due as of the Purchase Date without giving effect to any applicable grace period, and no Purchased Loan was at any time 30 days or more delinquent. 4. Lien; Valid Assignment. The Mortgage related to and delivered in connection with each Purchased Loan constitutes a valid and enforceable lien upon the related Mortgaged Property, prior to all other liens and encumbrances, except for (a) the lien for current real estate taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters that are for Mortgagor's benefit or are insured by the related lender's title insurance policy, (c) other matters to which like properties are commonly subject, none of which matters referred to in clauses (b) or (c) interferes with the security intended to be provided by such Mortgage or the marketability or current use of the Mortgaged Property or the current ability of the Mortgaged Property to VI-1 generate operating income sufficient to service the Purchased Loan debt (the foregoing items (a) through (c) being herein referred to as the "Permitted Encumbrances"). The related assignment of such Mortgage executed and delivered in favor of Buyers is in recordable form and constitutes a legal, valid and binding assignment, sufficient to convey to the assignee named therein all of the assignor's right, title and interest in, to and under such Mortgage. Such Mortgage establishes and creates a valid and enforceable security interest in favor of the holder thereof in all of the related Mortgagor's personal property used in, and reasonably necessary to operate the related Mortgaged Property. A Uniform Commercial Code financing statement has been filed and/or recorded in all places necessary to perfect a valid security interest in such personal property, and such security interest is a first or second priority security interest, subject to any prior purchase money security interest in such personal property and any personal property leases applicable to such personal property. Notwithstanding the foregoing, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements are required in order to effect such perfection. 5. Assignment of Leases and Rents. The Assignment of Leases set forth in the Mortgage (or in a separate instrument) and related to and delivered in connection with each Purchased Loan establishes and creates a valid, subsisting and enforceable perfected lien and security interest in the related Mortgagor's interest in all leases, sub-leases, licenses or other agreements pursuant to which any person is entitled to occupy, use or possess all or any portion of the real property subject to the related Mortgage, and each assignor thereunder has the full right to assign the same. The related assignment of any Assignment of Leases, not included in a Mortgage, executed and delivered in favor of Buyers is in recordable form and constitutes a legal, valid and binding assignment, sufficient to convey to the assignee named therein all of the assignor's right, title and interest in, to and under such Assignment of Leases. 6. Mortgage Status; Waivers and Modifications. No Mortgage or Mortgage Note has been satisfied, canceled, rescinded or subordinated in whole or in part, and the related Mortgaged Property has not been released from the lien of such Mortgage, in whole or in material part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release. None of the terms of any Mortgage Note, Mortgage or Assignment of Leases have been impaired, waived, altered or modified in any material respect, except by written instruments, all of which are included in the related Mortgage File. 7. Condition of Property; Condemnation. Except as set forth in an engineering report prepared in connection with the origination or acquisition of the related Purchased Loan and included in the related Purchased Loan File, to Seller's actual knowledge each Mortgaged Property is free and clear of any damage that would materially and adversely affect its value as security for the related Purchased Loan (normal wear and tear excepted), except to the extent reserves have been established to cover the costs to remediate such damages. Neither Seller nor mortgagee has received VI-2 notice of any pending or threatened proceeding for the condemnation of all or any portion of any Mortgaged Property. As of the date of the origination or acquisition of each Purchased Loan, all of the improvements on the related Mortgaged Property which were considered in determining the appraised value of the Mortgaged Property lay wholly within the boundaries and building restriction lines of such property, except for encroachments that are insured against by the lender's title insurance policy referred to herein or that do not materially and adversely affect the value or marketability of such Mortgaged Property, and no improvements on adjoining properties encroach upon such Mortgaged Property, except those encroachments that are insured against by the Title Policy referred to herein. 8. Title Insurance. Each Mortgaged Property is covered by an American Land Title Association (or an equivalent form thereof as adopted in the applicable jurisdiction) lender's title insurance policy (or, if a title policy meeting the foregoing description has not yet been issued, is evidenced by a commitment for title insurance "marked up" at the closing of such Purchased Loan and a binding enforceable commitment of the applicable title insurance company to issue the policy described in such commitment without any conditions to such issuance) (the "Title Policy") in the original principal amount of the related Purchased Loan after all advances of principal. Each Title Policy insures that the related Mortgage is a valid first priority lien on such Mortgaged Property, subject only to the Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made thereunder. No holder of the related Mortgage has done, by act or omission, anything that would impair the coverage under such Title Policy. Immediately following the transfer and assignment of the related Purchased Loan to Buyers, such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) will inure to the benefit of Buyers without the consent of or notice to the insurer. 9. No Holdbacks. Except as set forth on the Purchased Loan Schedule, the proceeds of each Purchased Loan have been fully disbursed and there is no obligation for future advances with respect thereto. With respect to each Purchased Loan, any and all requirements as to completion of any on-site or off-site improvement and as to disbursements of any funds escrowed for such purpose that were to have been complied with on or before the Purchase Date have been complied with, or any such funds so escrowed have not been released. 10. Mortgage Provisions. The Mortgage Note or Mortgage for each Purchased Loan contain customary and enforceable provisions such as would be expected to render the rights and remedies of the holder thereof adequate for the practical realization against the related Mortgaged Property of the principal benefits of the security intended to be provided thereby. 11. Buyer under Deed of Trust. If any Mortgage is a deed of trust, a trustee, duly qualified under applicable law to serve as such, is properly designated and serving under such Mortgage. VI-3 12. Environmental Conditions. An environmental site assessment (or an update of a previous assessment) was performed with respect to each Mortgaged Property in connection with the origination or acquisition of the related Purchased Loan, a report of each such assessment (an "Environmental Report") has been delivered to Buyers and a copy has been included as part of the related Purchased Loan File, and, to Seller's actual knowledge, there is no adverse environmental condition or circumstance affecting any Mortgaged Property that was not disclosed in such report. To Seller's actual knowledge, each related Mortgagor is now in compliance, and each Mortgage requires the related Mortgagor to cause any tenants leasing space at the related Mortgaged Property to comply with all applicable federal, state and local environmental laws and regulations. Where such Environmental Report disclosed the existence of a material and adverse environmental condition or circumstance affecting any Mortgaged Property, (i) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance, (ii) the related Mortgagor was required either to provide additional security and/or to obtain an operations and maintenance plan or (iii) the related Mortgagor provided evidence that applicable federal, state or local governmental authorities would not take any action, or require the taking of any action, in respect of such condition or circumstance. The related Purchased Loan Documents contain provisions pursuant to which the related borrower or a principal of such borrower has agreed to indemnify the mortgagee for damages resulting from violations of any applicable Environmental Laws. 13. Loan Document Status. Each Mortgage Note, Mortgage and any other agreement that evidences or secures a Purchased Loan and that was executed by or on behalf of the related Mortgagor is the legal, valid and binding obligation of the maker thereof (subject to any non-recourse provisions contained in any of the foregoing agreements), enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). Seller has not received any written notice of any and to Seller's actual knowledge there are no valid defenses, counterclaims or rights of offset or rescission available to the related Mortgagor with respect to such Mortgage Note, Mortgage or other agreements. 14. Insurance. Each Mortgaged Property is required pursuant to the related Mortgage to be and is insured by (a) a fire and extended perils insurance policy issued by an insurer meeting the requirements of such Purchased Loan providing coverage against loss or damage sustained by reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke, and, to the extent required as of the date of origination by the originator of such Purchased Loan consistent with its normal commercial mortgage lending practices, against other risks insured against by persons operating like properties in the locality of the Mortgaged Property in an amount not less than the lesser of the principal balance of the related Purchased Loan and the replacement cost (not allowing for depreciation) of the Mortgaged Property, and not less than the amount necessary to avoid the operation of any co-insurance provisions with respect to the Mortgaged Property; (b) a business interruption or rental loss insurance policy, in an amount at least equal to twelve months of operations of the Mortgaged Property (other than Manufactured Housing Communities); (c) a flood VI-4 insurance policy (if any portion of the Mortgaged Property is located in an area identified by the Federal Emergency Management Agency as having special flood hazards) in an amount generally required by mortgage lenders and (d) a comprehensive general liability insurance policy in amounts as are generally required by commercial mortgage lenders. Such insurance policy contains a standard mortgagee clause that names the mortgagee as an additional insured and that requires at least thirty days' (in the case of termination or cancellation other than for nonpayment of premiums) and at least ten (10) days' (in the case of termination or cancellation for nonpayment of premiums) prior notice to the holder of the Mortgage, and no such notice has been received, including any notice of nonpayment of premiums. Each Mortgage obligates the related Mortgagor to maintain all such insurance and, upon such Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at the Mortgagor's cost and expense and to seek reimbursement ~herefore from such Mortgagor. Other than as set forth in paragraph 17(h) hereof, each Mortgage provides that casualty insurance proceeds will be applied either to the restoration or repair of the related Mortgaged Property or to the reduction or defeasance of the principal amount of the Purchased Loan. 15. Taxes and Assessments. To Seller's actual knowledge, there are no delinquent or unpaid taxes or assessments (including assessments payable in future installments), or other outstanding charges affecting any Mortgaged Property which are or may become a lien of priority higher than the lien of the related Mortgage. For purposes of this representation and warranty, real property taxes and assessments shall not be considered unpaid until the date on which interest and/or penalties would be first payable thereon. 16. Mortgagor Bankruptcy. To Seller's actual knowledge, no Mortgagor and no tenant leasing space at the Related Mortgaged Property which constitutes more than [20]% of the gross leased space or which leases at least [10,000] square feet of such Mortgaged Property is a debtor in any state or federal bankruptcy or insolvency proceeding. 17. Leasehold Estate. Each Mortgaged Property consists of the related Mortgagor's fee simple estate in real estate or, if the related Purchased Loan is secured in whole or in part by the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in the Ground Lease but not by the related fee interest in such Mortgaged Property (the "Fee Interest"). With respect to any Purchased Loan secured by a Ground Lease but not by the related Fee Interest: a. Such Ground Lease or a memorandum thereof has been duly recorded; such Ground Lease (or the related estoppel letter or lender protection agreement between Seller and related lessor) permits the current use of the Mortgaged Property and permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely effect the security provided by the related Mortgage by limiting in any way its current use; and there has been no change in the payment terms of VI-5 such Ground Lease since the origination or acquisition of the related Purchased Loan, with the exception of changes reflected in written instruments that are a part of the related Mortgage File; b. The lessee's interest in such Ground Lease is not subject to any liens or encumbrances other than Permitted Encumbrances; c. The Mortgagor's interest in such Ground Lease is assignable to Buyers and their successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it has been obtained prior to the Purchase Date) and, in the event that it is so assigned, is further assignable by Buyers and their successors and assigns upon notice to, but without the need to obtain the consent of, such lessor; d. Such Ground Lease is in full force and effect, and no event of default has occurred, Seller has received no notice that an event of default has occurred thereunder, and there exists no condition that, but for the passage of time or the giving of notice, or both, would result in an event of default under the terms of such Ground Lease; e. Such Ground Lease, or an estoppel letter or other agreement, (A) requires the lessor under such Ground Lease to give notice of any default by the lessee to the mortgagee, provided that the mortgagee has provided the lessor with notice of its lien in accordance with the provisions of such Ground Lease to the extent such Ground Lease requires such notice, (B) further provides that no notice of termination given under such Ground Lease (including rejection of such Ground Lease in a bankruptcy proceeding) is effective against the holder of the Mortgage unless a copy of such notice has been delivered to such holder and the lessor has offered to enter into a new lease with such holder on terms that do not materially vary from the economic terms of the Ground Lease; f. A mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of notice of any such default, before the lessor thereunder may terminate such Ground Lease; g. Such Ground Lease has an original term (including any extension options set forth therein that can be exercised by the mortgagee if the mortgagee acquires the lessee's rights under the Ground Lease) which extends not less than twenty years beyond the stated maturity date of the related Purchased Loan; h. Under the terms of such Ground Lease and the related Mortgage, taken together, any related insurance proceeds or condemnation award other than in respect of a total loss will be applied either to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee or a designee appointed by it having the right to hold and disburse such proceeds as the repair VI-6 or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender for conduit programs), or to the payment or defeasance of the outstanding principal balance of the Purchased Loan together with any accrued interest thereon; i. Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by prudent commercial mortgage lenders; j. Such Ground Lease provides, or the lessor has otherwise agreed, that such Ground Lease may not be amended or modified in any manner materially adverse to the interest of the mortgagee without the prior written consent of the mortgagee under such Purchased Loan; and k. The ground lessor is required to enter into a new lease with Seller upon termination of the Ground Lease for any reason including rejection of the Ground Lease in bankruptcy. 18. Escrow Deposits. All escrow deposits relating to each Purchased Loan that are, as of the Purchase Date, required to be deposited with Seller or its agent have been so deposited. 19. Stressed LTV Ratio. The gross proceeds of each Purchased Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Purchased Loan and either: (a) such Purchased Loan is secured by an interest in real property having a fair market value (i) at the date the Purchased Loan was originated at least equal to 95 percent of the original principal balance of the Purchased Loan or (ii) at the Purchase Date at least equal to 95 percent of the principal balance of the Purchased Loan on such date; provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (x) the amount of any lien on the real property interest that is senior to the Purchased Loan and (y) a proportionate amount of any lien that is in parity with the Purchased Loan (unless such other lien secures a Purchased Loan that is cross-collateralized with such Purchased Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall be made on a pro rata basis in accordance with the fair market values of the Mortgaged Properties securing such cross-collateralized Purchased Loans; or (b) substantially all the proceeds of such Purchased Loan were used to acquire, improve or protect the real property which served as the only security for such Purchased Loan (other than a recourse feature or other third party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). 20. Advancement of Funds by Seller. Seller has not and no other holder of a Purchased Loan has advanced funds or induced, solicited or received any advance of funds from a party other than the owner of the related Mortgaged Property, directly or indirectly, for the payment of any amount required by such Purchased Loan. VI-7 21. No Mechanics' Liens. As of the date of the Mortgage, and to the actual knowledge of Seller as of the Purchase Date, each Mortgaged Property is free and clear of any and all mechanics' and materialmen's liens, and no rights are outstanding that under law could give rise to any such lien. 22. Compliance with Usury Laws. Each Purchased Loan complied with, or is exempt from, all applicable usury laws in effect at its date of origination. 23. Cross-collateralization; Cross-default. No Purchased Loan is cross-collateralized or cross-defaulted with any loan other than one or more other Purchased Loans, unless either (a) the effect of such cross-collateralization or cross-default provision is being terminated simultaneously herewith or (b) such Purchased Loan is subject to a standstill and release agreement reasonably acceptable to Buyers which prohibits any action against the borrower under the Purchased Loan and against the Mortgaged Property by the holder of such other loan and requires release of any such cross-collateralization at the request of Buyers upon the occurrence and during the continuation of an Event of Default if Seller shall have failed to repurchase such Purchased Loan pursuant to the terms of the Agreement. 24. Releases of Mortgaged Property. No Mortgage Note or Mortgage requires the mortgagee to release all or any material portion of the related Mortgaged Property from the lien of the related Mortgage except upon payment in full of all amounts due under the related Purchased Loan; provided, that the mortgagee may be required to grant releases of portions of the related Mortgaged Properties if (a) release is conditioned upon the satisfaction of certain legal and underwriting requirements or the payment of a release price or (b) a total or partial defeasance is effected in respect of such Purchased Loan. No Purchased Loan permits the release or substitution of collateral if such release or substitution (a) would create a "significant modification" of such Purchased Loan within the meaning of Treas. Reg. ss.1.1001 3 or (b) would cause such Purchased Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii) thereof). 25. No Equity Participation or Contingent Interest. No Purchased Loan contains any equity participation by the lender or provides for negative amortization or for any contingent or additional interest in the form of participation in the cash flow of the related Mortgaged Property. 26. No Material Default. To Seller's actual knowledge, there exists no event of default, material default, breach or event of acceleration under the documents evidencing or securing the Purchased Loan. Seller has not waived any event of default, material default or breach under the Purchased Loan Documents. 27. Local Law Compliance. To Seller's actual knowledge, the improvements located on or forming part of the related Mortgaged Property comply with applicable zoning laws and ordinances, or constitute legal non-conforming uses or structures or, if any such improvement does not so comply, such non-compliance does not materially and adversely affect the value of the related Mortgaged Property. VI-8 28. Junior Liens. None of the Purchased Loans permits the related Mortgaged Property to be encumbered by any lien junior to or of equal priority with the lien of the related Mortgage without the prior written consent of the holder thereof. None of the Mortgaged Properties is encumbered by any lien junior to the lien of the related Mortgage. Each Purchased Loan contains a "due on sale" clause that provides for the acceleration of the payment of the unpaid principal balance of the Purchased Loan if, without the prior written consent of the holder of the Purchased Loan, the related Mortgaged Property is transferred or sold. 29. Actions Concerning Purchased Loans. To the actual knowledge of Seller, there are no actions, suits or proceedings pending or threatened before any court, administrative agency or arbitrator concerning any Purchased Loan or related Mortgagor or Mortgaged Property that might materially and adversely affect the value of the Mortgaged Property as security for the Purchased Loan. 30. Servicing. The servicing and collection practices used by Seller have been in all material respects legal, proper and prudent and have met customary industry standards for servicing of commercial loans similar to the Purchased Loans in question. 31. Licenses and Permits. As of the date of origination of the Purchased Loan, to Seller's actual knowledge, the related Mortgagor was in possession of all material licenses, permits and franchises required by applicable law for the ownership and operation of the related Mortgaged Property as it was then operated. 32. Assisted Living Facility Regulation. If any Mortgaged Property is operated as an assisted living facility, (a) the related Mortgagor and operator, if different, is in compliance in all material respects with all federal and state laws applicable to the use and operation of the related Mortgaged Property and (b) if the operator of the Mortgaged Property participates in Medicare or Medicaid programs, the facility is in compliance in all material respects with the requirements for participation in such programs. 33. Non-Recourse Exceptions. The Purchased Loan Documents for each Purchased Loan provide that such Purchased Loan constitutes the non-recourse obligations of the related obligor thereon except that either (i) such provision does not apply in the case of fraud, misappropriation of awards, rents, proceeds, bankruptcy of Mortgagor and other carve-outs that are customary by the Mortgagor or (ii) such documents provide that the Mortgagor shall be liable to the holder of the Purchased Loan for losses incurred as a result of fraud by the Mortgagor. 34. Single Purpose Entity. The Mortgagor on each Purchased Loan with an outstanding principal balance in excess of $10,000,000, was, as of the origination of the Purchased Loan, a Single Purpose Entity. For this purpose, a "Single Purpose Entity" shall mean an entity, other than an individual, whose organizational documents provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more Mortgaged Properties securing the Purchased Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or VI-9 Properties, and whose organizational documents further provide, or which entity represented in the related Purchased Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Properties, or any indebtedness other than as permitted by the related Mortgage or the other related Purchased Loan documents, that it has its own books and records and accounts separate and apart from any other person, and that it holds itself out as a legal entity, separate and apart from any other person. Each borrower of a Purchased Loan in excess of $10,000,000 is an entity which has represented in connection with the origination of the Purchased Loan, or whose organizational documents as of the date of origination of the Purchased Loan, provided that so long as the Purchased Loan is outstanding it will have at least one independent director, manager or executive committee member. 35. Separate Tax Parcels. Each Mortgaged Property constitutes one or more complete separate tax lots or is subject to an endorsement under the related title insurance policy. 36. Operating or Financial Statement. The related Purchased Loan Documents require the related borrower to furnish to the mortgagee at least annually an operating statement with respect to the related Mortgaged Property. 37. Inspections. Seller (or if Seller is not the originator, the originator of the Purchased Loan) has inspected or caused to be inspected each Mortgaged Property in connection with the origination of the related Purchased Loan. 38. Defeasance. Each Purchased Loan containing provisions for defeasance of mortgage collateral either (i) requires the prior written consent of, and compliance with the conditions set by, the holder of the Purchased Loan, or (ii) requires that (A) defeasance may not occur prior to the time permitted by applicable "real estate mortgage investment conduit" rules and regulations (if applicable), (B) the replacement collateral consist of U.S. governmental securities in an amount sufficient to make all scheduled payments under the Mortgage Note when due, (C) independent public accountants certify that the collateral is sufficient to make such payments, (D) counsel provide an opinion that Buyer has a perfected security interest in such collateral prior to any other claim or interest, and (E) all costs and expenses arising from the defeasance of the mortgage collateral shall be borne by the borrower. 39. Fraud. No fraudulent acts were committed by Seller in connection with its acquisition or origination of such Purchased Loan nor were any fraudulent acts committed by any Person in connection with the origination of such Purchased Loan. 40. Other Agreements. Except as included in the related Purchased Loan File, Seller is not a party to any document, instrument or agreement, and there is no document, that by its terms modifies or affects the rights and obligations of any holder of such Purchased Loan and Seller has not consented to any material change or waiver to any VI-10 term or provision of any such document, instrument or agreement and no such change or waiver exists. 41. Appraisal. An appraisal of the related Mortgaged Property was conducted in connection with the origination of such Purchased Loan; and such appraisal satisfied either (A) the requirements of the "Uniform Standards of Professional Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial Institutions Reform, Recovery and Enforcement Act or 1989, in either case as in effect on the date such Purchased Loan was originated. REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL PURCHASED LOAN WHICH IS AN ELIGIBLE MEZZANINE LOAN With respect to each Purchased Loan which is an Eligible Mezzanine Loan, Seller represents and warrants on each Purchase Date (i) that each representation or warranty set forth in any other section of this Exhibit VI which pertains to the underlying Mortgaged Property related to such Purchased Loan is to Seller's actual knowledge true and correct in all respects, and (ii) that on each Purchase Date, other than as set forth on the exception report provided to Buyer in accordance with the Agreement: 1. Purchased Loan Information. The information set forth in the Purchased Loan Schedule is complete, true and correct in all material respects. 2. No Default or Dispute Under Purchased Loan Documents. To Seller's actual knowledge, there exists no material default, breach or event of acceleration (and no event which, with the passage of time or the giving of notice, or both, would constitute any of the foregoing) under the documents evidencing or securing the Purchased Loan, in any such case to the extent the same materially and adversely affects the value of the Purchased Loan and the related underlying real property. 3. No Offsets, Defenses or Counterclaims. To Seller's actual knowledge, there is no valid offset, defense or counterclaim to such Purchased Loan. 4. Equity Pledges. With respect to each Purchased Loan which is an Eligible Mezzanine Loan only, the pledge of ownership interests securing such Purchased Loan encumbers the direct or indirect equity or ownership interests in the underlying real property owner and has been fully first priority perfected in favor of Seller as mezzanine lender. 5. Lockbox. The lockbox administrator, if any, is not an Affiliate of Seller. 6. Enforceability. The Purchased Loan Documents have been duly and properly executed by Seller, and each is the legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or VI-11 at law). The Purchased Loan is not usurious. Seller has fully and validly perfected all security interests created or intended to be created pursuant to the Purchased Loan Documents. 7. Waivers and Modifications. The terms of the related Purchased Loan Documents have not been impaired, waived, altered or modified in any material respect (other than by a written instrument which is included in the related Purchased Loan File). 8. Valid Assignment. The assignment of Purchased Loan constitutes the legal, valid and binding assignment of such Purchased Loan from Seller to or for the benefit of Buyer. No consent or approval by any third party is required for any such assignment of such Purchased Loan, for Buyers' exercise of any rights or remedies under the assignment of Purchased Loan, or for Buyers' sale or other disposition of such Purchased Loan if Buyers acquire title thereto, other than consents and approvals which have been obtained. No third party (including underlying real property owner and underlying real property mortgagee) holds any "right of first refusal," "right of first negotiation," "right of first offer," purchase option, or other similar rights of any kind on account of the occurrence of any of the foregoing. No other impediment exists to any such transfer. 9. Certain Representations and Warranties. To Seller's actual knowledge, all representations and warranties in the Purchased Loan Documents and in the underlying real property mortgage documents are true and correct in all material respects. 10. Parties Authorized. To the extent required under applicable law as of the Purchase Date, to Seller's actual knowledge, each party to the Purchased Loan Documents was authorized to do business in the jurisdiction in which the related underlying real property is located at all times when it held the Purchased Loan to the extent necessary to ensure the validity and enforceability of such Purchased Loan. 11. No Advances of Funds. No party to the Purchased Loan Documents has advanced funds on account of any default under the Purchased Loan or under the underlying real property mortgage documents. 12. Servicing. The servicing and collection practices used by Seller for the Purchased Loan have complied with applicable law in all material respects and are consistent with those employed by prudent servicers of comparable loans. 13. No Assignment. Seller has not effectuated any transfer, sale, assignment, hypothecation, or other conveyance of any of its rights and obligations under any Purchased Loan Document, except in connection with the Agreement. 14. No Bankruptcy. None of the following parties is a debtor in any state or federal bankruptcy or insolvency proceeding: Seller; or, to Seller's actual knowledge, underlying real property owner; or, to Seller's actual knowledge, underlying real property mortgagee. VI-12 REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL PURCHASED LOAN WHICH IS AN ELIGIBLE B NOTE With respect to each Purchased Loan which is an Eligible B Note, Seller represents and warrants (i) that each representation or warranty set forth in any other section of this Exhibit VI which pertains to the underlying Mortgaged Property related to such Purchased Loan is true and correct in all respects, and (ii) that on each Purchase Date, other than as set forth on the exception report provided to Buyers in accordance with the Agreement: 1. Purchased Loan Information. The information set forth in the Purchased Loan Schedule is complete, true and correct in all material respects. 2. No Default or Dispute Under Purchased Loan Documents. To Seller's actual knowledge, there exists no material default, breach or event of acceleration (and no event which, with the passage of time or the giving of notice, or both, would constitute any of the foregoing) under the documents evidencing or securing the Purchased Loan, in any such case to the extent the same materially and adversely affects the value of the Purchased Loan and the related underlying real property. 3. No Offsets, Defenses or Counterclaims. To Seller's actual knowledge, there is no valid offset, defense or counterclaim to such Purchased Loan. 4. Lockbox. The lockbox administrator, if any, is not an Affiliate of Seller. 5. Enforceability. The Purchased Loan Documents have been duly and properly executed by Seller, and each is the legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). The Purchased Loan is not usurious. Seller has fully and validly perfected all security interests created or intended to be created pursuant to the Purchased Loan Documents. 6. Waivers and Modifications. The terms of the related Purchased Loan Documents have not been impaired, waived, altered or modified in any material respect (other than by a written instrument which is included in the related Purchased Loan File). 7. Valid Assignment. The assignment of Purchased Loan constitutes the legal, valid and binding assignment of such Purchased Loan from Seller to or for the benefit of Buyer. No consent or approval by any third party is required for any such assignment of such Purchased Loan, for Buyer's exercise of any rights or remedies under the assignment of Purchased Loan, or for Buyer's sale or other disposition of such Purchased Loan if Buyer acquires title thereto, other than consents and approvals which have been obtained. No third party (including underlying real property owner and underlying real property mortgagee) holds any "right of first refusal," "right of first negotiation," "right of first offer," purchase option, or other similar rights of any kind on VI-13 account of the occurrence of any of the foregoing. No other material impediment exists to any such transfer. 8. Certain Representations and Warranties. All representations and warranties in the Purchased Loan Documents and in the underlying documents for the performing commercial mortgage loan secured by a first lien on a multifamily or commercial property to which such Purchased Loan relates are true and correct in all material respects. 9. Parties Authorized. To the extent required under applicable law as of the Purchase Date, to Seller's actual knowledge, each party to the Purchased Loan Documents was authorized to do business in the jurisdiction in which the related underlying real property is located at all times when it held the Purchased Loan to the extent necessary to ensure the validity and enforceability of such Purchased Loan. 10. No Advances of Funds. No party to the Purchased Loan Documents has advanced funds on account of any default under the Purchased Loan or under the underlying real property mortgage documents. 11. Servicing. The servicing and collection practices used by Seller for the Purchased Loan have complied with applicable law in all material respects and are consistent with those employed by prudent servicers of comparable loans. 12. No Assignment. Seller has not effectuated any transfer, sale, assignment, hypothecation, or other conveyance of any of its rights and obligations under any Purchased Loan Document, except in connection with the Agreement. 13. No Bankruptcy. To Seller's actual knowledge, none of the following parties is a debtor in any state or federal bankruptcy or insolvency proceeding: Seller; to Seller's actual knowledge, underlying real property owner; or to Seller's actual knowledge, underlying real property mortgagee. REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL PURCHASED SECURITY WHICH CONSISTS OF CMBS With respect to each Purchased Security which is a CMBS Seller represents and warrants on each Purchase Date as follows, other than as set forth on the exception report provided to Buyers in accordance with the Agreement. 1. The CMBS consists of pass-through certificates representing beneficial ownership interests in one or more REMICs consisting of one or more first lien mortgage loans secured by commercial and/or multifamily properties. 2. Immediately prior to the sale, transfer and assignment to Buyers thereof, Seller had good and marketable title to, and was the sole owner and holder of, such CMBS, and Seller is transferring such CMBS free and clear of any and all liens, pledges, encumbrances, charges, security interests or any other ownership interests of any nature encumbering such CMBS. VI-14 3. Seller has full right, power and authority to sell and assign such CMBS and such CMBS has not been cancelled, satisfied or rescinded in whole or part nor has any instrument been executed that would effect a cancellation, satisfaction or rescission thereof. 4. Other than consents and approvals obtained as of the related Purchase Date or those already granted in the related documents governing such CMBS, no consent or approval by any Person is required in connection with each Buyer's acquisition of such CMBS, for each Buyer's exercise of any rights or remedies in respect of such CMBS or for each Buyer's sale or other disposition of such CMBS. No third party holds any "right of first refusal", "right of first negotiation", "right of first offer", purchase option, or other similar rights of any kind, and no other impediment exists to any such transfer or exercise of rights or remedies. 5. Upon consummation of the purchase contemplated to occur in respect of such CMBS on the Purchase Date ~herefore, Seller will have validly and effectively conveyed to each Buyer all legal and beneficial interest in and to such CMBS free and clear of any and all liens, pledges, encumbrances, charges, security interests or any other ownership interests of any nature. 6. The CMBS is a certificated security in registered form, or is in uncertificated form and held through the facilities of (a) The Depository Trust Corporation in New York, New York, or (b) such other clearing organization or book-entry system as is designated in writing by Buyers. 7. With respect to any CMBS that is a certificated security, Seller has delivered to Buyers or their designee such certificated security, along with any and all certificates, assignments, bond powers executed in blank, necessary to transfer such certificated security under the issuing documents of such CMBS. 8. All information contained in the related Credit Approval Memo (or as otherwise provided to Buyers) in respect of such CMBS is accurate and complete in all material respects. 9. As of the date of its issuance, such CMBS complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the issuance thereof including, without limitation, any registration requirements of the Securities Act of 1933, as amended. 10. Except as included in the Credit Approval Memo, there is no document that by its terms modifies or affects the rights and obligations of the holder of such CMBS, the terms of the related pooling and servicing agreement or any other agreement relating to the CMBS, and, since issuance, there has been no material change or waiver to any term or provision of any such document, instrument or agreement. 11. There is no (i) monetary default, breach or violation exists with respect to any pooling and servicing agreement or other document governing or pertaining to such CMBS, (ii) material non-monetary default, breach or violation exists with respect to any VI-15 such agreement or other document or other document governing or pertaining to such CMBS, or (iii) event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration under such documents and agreements. 12. No consent, approval, authorization or order of, or registration or filing with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority over Seller is required for any transfer or assignment of such CMBS. 13. Except as included in the Credit Approval Memo, (i) no interest shortfalls have occurred and no realized losses have been applied to any CMBS or otherwise incurred with respect to any mortgage loan related to such CMBS nor any class of CMBS issued under the same governing documents as any CMBS, and (ii) Seller is not aware of any circumstances that could have a material adverse effect on the CMBS. 14. There are no circumstances or conditions with respect to the CMBS, the Mortgaged Property or the related Mortgagor's credit standing that can reasonably be expected to cause private institutional investors to regard the CMBS as an unacceptable investment or adversely affect the value or marketability of the CMBS. 15. Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such CMBS is or may become obligated. 16. To Seller's actual knowledge, there is no material inaccuracy in any servicer report or trustee report delivered to it (and, in turn, delivered pursuant to the terms of the Agreement) in connection with such CMBS. 17. No servicer of the CMBS has made any advances, directly or indirectly, with respect to the CMBS or to any mortgage loan relating to such CMBS. VI-16 EXHIBIT VII PURCHASED LOAN INFORMATION [INSERT RATING AGENCY PACKAGE] VII-1 EXHIBIT VIII ADVANCE PROCEDURE Final Approval of New Assets Which are Eligible Securities/Preliminary Approval of New Assets Which are Eligible Loans. (a) Seller may, from time to time, submit to Buyers a Credit Approval Memo for Buyers' review and approval in order to request that Buyers enter into a Transaction with respect to any New Asset that Seller proposes to be included as a Purchased Asset under the Agreement. (b) Upon Buyers' receipt of the Credit Approval Memo together with all underlying legal documents requested by Buyers, Buyers, within two (2) Business Days, shall have the right to request, in Buyers' business judgment, additional diligence materials and deliveries that Buyers shall specify. Upon Buyers' receipt of all of the Diligence Materials or Buyers' waiver thereof, Buyers, within two (2) Business Days (in the case of an Eligible Security) or five (5) Business Days and following receipt of internal credit approval, shall either (i) notify Seller of the Purchase Price and the Market Value for the New Asset or (ii) deny, in Buyers' business judgment, Seller's request for a Transaction; provided that Buyers' failure to respond to Seller within two (2) or five (5) Business Days, as applicable, shall not be deemed to be an approval or a denial of Seller's request for an Advance, and Buyers shall not be liable to Seller for any such failure to respond. Final Approval of New Assets which are Eligible Loans. Upon Buyers' notification to Seller of the Purchase Price and the Market Value for any New Asset which is an Eligible Loan, Seller shall, if Seller desires to enter into a Transaction with respect to such New Asset, satisfy the conditions set forth below (in addition to satisfying the Transaction Conditions Precedent to obtaining each advance) as a condition precedent to Buyers' approval of such New Asset as a Purchased Asset, all in a manner reasonably satisfactory to Buyers and pursuant to documentation reasonably satisfactory to Buyers: (i) Delivery of Purchased Loan Documents. Seller shall deliver to Buyers: (i) with respect to any New Asset that is a Pre-Existing Loan, each of the Purchased Loan Documents, except Purchased Loan Documents that Seller expressly and specifically disclosed in Seller's Credit Approval Memo were not in Seller's possession; and (ii) with respect to any New Asset that is an Originated Loan, each of the Purchased Loan Documents. (ii) Environmental and Engineering. If available, Buyers shall have received a "Phase 1" (and, if necessary, "Phase 2") environmental report, an asbestos survey and an engineering report, each in form reasonably satisfactory to Buyers, by an engineer or environmental consultant reasonably approved by Buyers. (iii) Appraisal. Buyers shall have received either an Acceptable Appraisal or a Draft Appraisal. If Buyers receive only a Draft Appraisal prior to entering into a Transaction, Seller shall deliver an Acceptable Appraisal on or before thirty (30) days after the Purchase Date. VIII-1 (iv) Insurance. Buyers shall have received certificates or other evidence of insurance demonstrating insurance coverage in respect of the Mortgaged Property of types, in amounts, with insurers and otherwise in compliance with the terms, provisions and conditions set forth in the Purchased Loan Documents. Such certificates or other evidence shall indicate that Seller will be named as an additional insured as its interest may appear and shall contain a loss payee endorsement in favor of such additional insured with respect to the policies required to be maintained under the Purchased Loan Documents. (v) Survey. Buyers shall have received all surveys of the Mortgaged Property that are in Seller's possession. (vi) Lien Search Reports. Buyers or Buyers' counsel shall have received, as reasonably requested by Buyers, satisfactory reports of UCC, tax lien, judgment and litigation searches and title updates conducted by search firms and/or title companies acceptable to Buyers with respect to the Eligible Loan, Mortgaged Property, Seller and Mortgagor, such searches to be conducted in each location Buyers shall reasonably designate. (vii) Opinions of Counsel. Buyers shall have received copies of all legal opinions in Seller's possession with respect to the Eligible Loan which shall be in form and substance reasonably satisfactory to Buyers. (viii) Additional Real Estate Matters. Seller shall have delivered to Buyers to the extent in Seller's possession such other real estate related certificates and documentation as may have been requested by Buyers, such as: (i) certificates of occupancy issued by the appropriate Governmental Authority and either letters certifying that the Mortgaged Property is in compliance with all applicable zoning laws issued by the appropriate Governmental Authority or evidence that the related Title Policy includes a zoning endorsement and (ii) abstracts of all leases in effect at the Mortgaged Property and estoppel certificates, in form and substance acceptable to Buyers, from any ground lessor and from any tenant that occupies 7.5% or more of the rentable space at the Mortgaged Property, and in any event from tenants whose occupancies aggregate not less than 70% of the occupied rentable square footage at the Mortgaged Property. (ix) Other Documents. Buyers shall have received such other documents as Buyers or their counsel shall reasonably deem necessary. (c) Within two (2) Business Days of Seller's satisfaction of all of the conditions enumerated in clauses (a) through (i) above, Buyers shall either (i) if the Purchased Loan Documents with respect to a New Asset are not reasonably satisfactory in form and substance to Buyers, notify Seller that Buyers have not approved such New Asset as a Purchased Asset or (ii) notify Seller that Buyers have approved the New Asset as a Purchased Asset, provided that Buyers' failure to respond to Seller within two (2) Business Days shall not be deemed to be an approval or a denial of the New Asset, and Buyers shall not be liable to Seller for any such failure to respond. VIII-2 (d) Following approval by Buyers of a New Asset as a Purchased Asset, Seller shall, no later than three (3) Business Days prior to the related Purchase Date, deliver to Buyers a Request for Transaction. VIII-3 EXHIBIT IX FORM OF REDIRECTION LETTER [Letterhead of Seller] ______ __, 20__ [Borrower Name] [Address] Re: [__________] To Whom It May Concern: Capital Trust, Inc. ("CT") has transferred its interest in the Loan to Banc of America Securities LLC and Bank of America, N.A., (the "Banks") in accordance with that certain Master Repurchase Agreement between CT and the Banks dated as of _________ __, 2005. All notices, demands and requests to be given to the lender under the documents evidencing, securing and/or governing the Loan shall be sent to the following address (until such addresses for notice is changed in accordance with the Loan documents): Bank of America, N.A./Banc of America Securities LLC Mail Code: NC1-007-21-02 Hearst Tower 214 North Tryon Street Charlotte, NC 28255 Attention: Angie Dugick with a copy to: Capital Trust, Inc. 410 Park Avenue 14th Floor New York, New York 10022 Attention: Brian H. Oswald All payments to be made to the Banks under the Loan shall be made by wire transfer in accordance with the following instructions: [_______________] ABA [_______________] BNF: [_______________] Account #: ___________ Account name: Bank of America/ Capital Trust Facility Cash Management Acct Attn: [_______________] IX-1 Please feel free to call Brian H. Oswald at (212) 655-0256 should you have any questions or concerns. Thank you. CAPITAL TRUST, INC., a Maryland corporation By: __________________________________ Name:_____________________________ Title:____________________________ IX-2 EXHIBIT X FORM OF SERVICER NOTICE AND AGREEMENT March ___, 2005 Midland Loan Services, Inc., as Servicer 10851 Mastin, Suite 700 Overland, KS 66210 Attention: President Re: Master Repurchase Agreement, dated as of March [__], 2005 (the "Repurchase Agreement"), between CAPITAL TRUST, INC., as seller ("Seller"), BANK OF AMERICA, N.A., as a buyer and BANC OF AMERICA SECURITIES LLC, as a buyer (collectively, the "Buyers") ------------------------------------------------------------------------ Ladies and Gentlemen: Midland Loan Services, Inc. ("Servicer") is servicing certain mortgage loans for Seller pursuant to that certain Servicing Agreement, dated as of [__________] (the "Servicing Agreement"), between Servicer and Seller. Pursuant to the Repurchase Agreement among Buyers and Seller, Servicer is hereby notified of the following (defined terms not otherwise defined herein shall have their respective meaning set forth in the Repurchase Agreement or the Servicing Agreement): Servicer shall segregate all Income collected on account of the Purchased Loans, hold such Income in trust for the sole and exclusive benefit of Buyers, and remit such collections to the following account which has been established at PNC Bank, National Association: ABA# [_________], Account # [_______], the ("Cash Management Account"). Servicer acknowledges that the Cash Management Account is held for the benefit of Buyers pursuant to the Custodial Agreement, dated as of March [__], 2005, by and between Seller, Buyers and Deutsche Bank Trust Company Americas. Servicer shall provide Buyers with prompt notice of any unscheduled Principal Payments deposited in the Cash Management Account. Buyers are the owner of all servicing records, including but not limited to any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of Purchased Loans (the "Servicing Records") so long as the Purchased Loans are subject to the Repurchase Agreement. Pursuant to the Repurchase Agreement, Seller has granted Buyers a security interest in all servicing fees and rights relating to the Purchased Loans and all Servicing Records to secure the obligation of Seller or its designee to service in conformity with the Repurchase Agreement and any other obligation of Seller to Buyers. Seller has covenanted to safeguard such Servicing Records and to deliver them promptly to Buyers or their designee (including the Custodian) at Buyers' request. X-1 Upon the occurrence and during the continuance of an Event of Default, Buyers may, in their sole discretion, (i) sell their right to the Purchased Loans on a servicing released basis or (ii) terminate any Servicer of the Purchased Loans with or without cause, in each case without payment of any termination fee. Upon receipt of a notice of an Event of Default from either Buyer, Servicer shall follow the instructions of such Buyer, without any further consent from Seller or any other Person, with respect to the Purchased Loans, and shall deliver to such Buyer any information with respect to the Purchased Loans reasonably requested by such Buyer. Pursuant to the Repurchase Agreement, Seller has irrevocably assigned all rights, title and interest in the Servicing Agreements in the Purchased Loans to Buyers. Notwithstanding any contrary information or direction which may be delivered to Servicer by Seller, Servicer may conclusively rely on any information, direction or notice of an Event of Default delivered by either Buyer, and Seller shall indemnify and hold Servicer harmless for any and all claims asserted against Servicer for any actions taken in good faith by Servicer in connection with the delivery of such information or notice of an Event of Default. No provision of this Servicer Notice may be amended, countermanded or otherwise modified without the prior written consent of Buyers. Buyers are an intended third party beneficiary of this letter. Please acknowledge receipt and your agreement to the terms of this instruction letter by signing in the signature block below and forwarding an executed copy to Buyers promptly upon receipt. Any notices to Buyers should be delivered to the following, address: Bank of America, N.A., Mail Code: NC1-007-21-02, Hearst Tower, 214 North Tryon Street, Charlotte, NC 28255; Attention: Angie Dugick; Facsimile: (704) 386-1094 and any notice to Servicer should be sent: if to Servicer, by U.S. Mail at: Midland Loan Services, Inc. P.O. Box 25965 Shawnee Mission, KS 66225-5965 Attention: President Facsimile No.: (913) 253-9001 or by delivery to: Midland Loan Services, Inc. 10851 Mastin, Suite 300 Overland Park, KS 66210 Attention: President Very truly yours, CAPITAL TRUST, INC. X-2 By:_______________________________________________ Name: Title: ACKNOWLEDGED AND AGREED TO: ___________________________________________ as Servicer By ___________________________________________ Title: Telephone: Facsimile: X-3 EXHIBIT XI FORM OF BAILEE AGREEMENT [CAPITAL TRUST, INC. NAME AND ADDRESS] _______________ __, 20__ Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022 Re: Bailee Agreement (the "Bailee Agreement") in connection with the sale of _______________ by Capital Trust, Inc. (the "Seller") to Bank of America, N.A. (the "Buyer") Gentlemen and Mesdames: In consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, the Buyer and Paul, Hastings, Janofsky & Walker LLP (the "Bailee") hereby agree as follows: 1. Seller shall deliver to the Bailee in connection with any Purchased Loans delivered to the Bailee hereunder an Identification Certificate in the form of Attachment 1 attached hereto to which shall be attached a Purchased Loan Schedule identifying which Purchased Loans are being delivered to the Bailee hereunder. Such Purchased Loan Schedule shall contain the following fields of information: (a) the loan identifying number; (b) the obligor's name; (c) the street address, city, state and zip code for the applicable real property; (d) the original balance; and (e) the current principal balance if different from the original balance and such other information as Seller and Buyer shall require. 2. On or prior to the date indicated on the Custodial Delivery Certificate delivered by Seller (the "Funding Date"), Seller shall have delivered to the Bailee, as bailee for hire, the original documents set forth on Schedule A attached hereto (collectively, the "Purchased Loan File") for each of the Purchased Loans (each a "Purchased Loan" and collectively, the "Purchased Loans") listed in Exhibit A to Attachment 1 attached hereto (the "Purchased Loan Schedule"). 3. The Bailee shall issue and deliver to the Buyer and the Custodian on or prior to the Funding Date by facsimile (a) in the name of the Buyer, an initial trust receipt and certification in the form of Attachment 2 attached hereto (the "Trust Receipt ") which Trust Receipt shall state that the Bailee has received the documents comprising the Purchased Loan File as set forth in the Custodial Delivery Certificate (as defined in that certain Custodial Agreement dated as of ______ __, 2005, among Seller, Buyer and Custodian (as defined in Section 5 below), in addition to such other documents required XI-1 to be delivered to Buyer and/or Custodian pursuant to the Master Repurchase Agreement dated as of _____________, 2005, between Seller and Buyer (the "Repurchase Agreement"). 4. On the applicable Funding Date, in the event that the Buyer fails to purchase any New Loan from Seller that is identified in the related Custodial Delivery Certificate, the Buyer shall deliver by facsimile to the Bailee at (212) 230-7830 to the attention of Robert J. Grados, Esq., an authorization (the "Facsimile Authorization") to release the Purchased Loan Files with respect to the Purchased Loans identified therein to Seller. Upon receipt of such Facsimile Authorization, the Bailee shall release the Purchased Loan Files to Seller in accordance with Seller's instructions. 5. Following the Funding Date, the Bailee shall forward the Purchased Loan Files to Deutsche Bank Trust Company Americas, 1761 St. Andrew Place, Santa Ana, California 92705, Attention: Mortgage Custody-QT051C (the "Custodian") by insured overnight courier for receipt by the Custodian no later than 1:00 p.m. on the third Business Day following the applicable Funding Date (the "Delivery Date"). 6. From and after the applicable Funding Date until the time of receipt of the Facsimile Authorization or the applicable Delivery Date, as applicable, the Bailee (a) shall maintain continuous custody and control of the related Purchased Loan Files as bailee for the Buyer and (b) is holding the related Purchased Loan Loans as sole and exclusive bailee for the Buyer unless and until otherwise instructed in writing by the Buyer. 7. Seller agrees to indemnify and hold the Bailee and its partners, directors, officers, agents and employees harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney's fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by the Bailee) were imposed on, incurred by or asserted against the Bailee because of the breach by the Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of the Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of the Bailee or the termination or assignment of this Bailee Agreement. 8. (a) In the event that the Bailee fails to produce a Mortgage Note, Mezzanine Note, assignment of Purchased Loan or any other document related to a Purchased Loan that was in its possession within ten (10) business days after required or requested by Seller or Buyer (a "Delivery Failure"), the Bailee shall indemnify Seller or Buyer in accordance with the succeeding paragraph of this Section 8. XI-2 (b) The Bailee agrees to indemnify and hold the Buyer and Seller, and their respective affiliates and designees harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney's fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of a Custodial Delivery Failure or the Bailee's negligence, lack of good faith or willful misconduct. The foregoing indemnification shall survive any termination or assignment of this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that the Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that the Bailee hereunder may act as Counsel to Seller in connection with a proposed loan and Paul, Hastings, Janofsky & Walker LLP, if acting as Bailee, has represented Seller in connection with negotiation, execution and delivery of the Repurchase Agreement. 10. In connection with a pledge of the Purchased Loans as collateral for an obligation of the Buyer, the Buyer may pledge its interest in the corresponding Purchased Loan Files held by the Bailee for the benefit of the Buyer from time to time by delivering written notice to the Bailee that the Buyer has pledged its interest in the identified Purchased Loans and Purchased Loan Files, together with the identity of the party to whom the Purchased Loans have been pledged (such party, the "Pledgee"). Upon receipt of such notice from the Buyer, the Bailee shall mark its records to reflect the pledge of the Purchased Loans by the Buyer to the Pledgee. The Bailee's records shall reflect the pledge of the Purchased Loans by the Buyer to the Pledgee until such time as the Bailee receives written instructions from the Buyer that the Purchased Loans are no longer pledged by the Buyer to the Pledgee, at which time the Bailee shall change its records to reflect the release of the pledge of the Purchased Loans and that the Bailee is holding the Purchased Loans as custodian for, and for the benefit of, the Buyer. 11. From time to time, subject to the acceptance and approval of Buyer, Seller may request pursuant to a request substantially in the form of Annex 6 to the Custodial Agreement the delivery by the Custodian to the Bailee of some or all of the Purchased Loan File for the purposes set forth in such request. Upon receipt of the Purchased Loan File or such portions thereof, Bailee shall hold the same as sole and exclusive bailee for the Buyer until such time as the Purchased Loan File, or such portions thereof, are redelivered to Custodian or to such other Persons, as otherwise directed by Buyer, subject in either case to the provisions set forth herein governing standards of care and indemnification and except as otherwise provided by any document specifically amending, supplementing or modifying the terms hereof which is executed and delivered by all parties hereto in connection with such delivery of the Purchased Loan File, or such portions thereof, to Bailee. Notwithstanding anything to the contrary contained in this Section 11, Bailee shall have the right to deliver such Purchased Loan File, or portions thereof, to Buyer upon five (5) days written notice to Buyer. XI-3 12. The agreement set forth in this Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 13. This Bailee Agreement may not be assigned by Seller or the Bailee without the prior written consent of the Buyer. 14. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. 15. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 16. Capitalized terms used herein and defined herein shall have the meanings ascribed to them in the Repurchase Agreement. [signatures begin on next page] XI-4 Very truly yours, CAPITAL TRUST, INC., a Maryland corporation By:_________________________________ Name: Title: ACCEPTED AND AGREED: PAUL, HASTINGS, JANOFSKY & WALKER LLP, Bailee By:_________________________________ Name: Title: ACCEPTED AND AGREED: BANK OF AMERICA, N.A., Buyer By:_________________________ Name: Title: XI-5 Attachment 1 to Bailee Agreement CUSTODIAL DELIVERY CERTIFICATE ------------------------------ XI-6 Attachment 2 to Bailee Agreement TRUST RECEIPT - ------------- XI-7 EXHIBIT XII FORM OF REQUEST FOR TRANSACTION [ADDRESS OF BUYERS] Attention: Telephone: Telecopy: Re: Master Repurchase Agreement, dated as of ______ __, 20__ (the "Agreement"), by and between Capital Trust, Inc. (the "Seller") and Bank of America Securities LLC and Bank of America, N.A. (the "Buyers"). ----------------------------------------------------------------
- ------------------------------------------------------------------------------------------------- Buyers: Bank of America Securities LLC Bank of America, N.A. ------------------------------------------------------------------------------------------------- Seller: Capital Trust, Inc. - ------------------------------------------------------------------------------------------------- Requested Purchase Date: _______________________________________ - ------------------------------------------------------------------------------------------------- Type of Transaction ------------------------------------------------------------------------------------------------- Transmission Date: _______________________________________ - ------------------------------------------------------------------------------------------------- Eligible Securities to be sold See Schedule 1 hereto ---------- - ------------------------------------------------------------------------------------------------- Eligible Loans to be sold See Schedule 2 hereto ---------- - ------------------------------------------------------------------------------------------------- Settlement Locations, Wiring-Instructions and See Schedule 3 hereto Amounts to Be Wired ---------- ------------------------------------------------------------------------------------------------- Requested Wire Amount: $___________________ - ------------------------------------------------------------------------------------------------- Wire Instructions: -------------------------------------------------------------------------------------------------
XII-1 Requested by: Capital Trust, Inc. By: ___________________________________________ Name: Title: I hereby certify, as a Responsible Officer of the Seller, that both immediately prior to the entering into of the Transaction herein requested, and also after giving effect thereto, that the representations and warranties made by the Seller in Section 8 of the Agreement, and elsewhere in each of the Transaction Documents, shall with respect to the Eligible Assets subject to the Transaction be true and complete on and as of the date of the entering into of such Transaction in all material respects with the same force and effect as if made on and as of such date (or if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). Responsible Officer of Seller: _______________________________________________ Name: Title: XII-2 Schedule 1 Eligible Securities XII-3 Schedule 2 Eligible Loans XII-4 Schedule 3 Settlement Locations, Wiring-Instructions and Amounts XII-5 EXHIBIT XIII FORM OF NOTICE OF PREPAYMENT [Letterhead of Seller] ______ __, 20__ Bank of America, N.A./Banc of America Securities LLC Mail Code: NC1-007-21-02 Hearst Tower 214 North Tryon Street Charlotte, NC 28255 Attention:_____Angie Dugick Re: [DESCRIPTION OF ELIGIBLE ASSET SUBJECT TO PREPAYMENT] To Whom It May Concern: Capital Trust, Inc. ("CT") hereby notifies you of its intention to prepay the Repurchase Price for the above referenced Eligible Asset(s) in accordance with that certain Master Repurchase Agreement between CT and Bank of America Securities LLC and Bank of America, N.A. (the "Buyers"), dated as of March __, 2005 (the "Agreement"). CT acknowledges that it may be required to pay all applicable breakage costs, if any, which may arise pursuant to Section 2.11 of the Agreement. Please feel free to call Brian H. Oswald at (212) 655-0256 should you have any questions or concerns. Thank you. CAPITAL TRUST, INC., a Maryland corporation By:____________________________________________ Name:__________________________________________ Title:_________________________________________ XIII-1 EX-21 20 ex21-1.txt EX. 21.1 - SUBSIDIARIES OF CAPITAL TRUST, INC. Exhibit 21.1 JURISDICTION OF D/B/A ENTITY INCORPORATION JURISDICTION ------ ------------- ------------ Victor Capital Group, L.P. Delaware VIC, Inc. Delaware Vic NY Capital Trust RE CDO 2004-1 Corp. Delaware Capital Trust RE CDO 2004-1 LTD Cayman Islands Capital Trust RE CDO Depositor, Corp. Delaware CT RE CDO 2004-1 Sub, LLC Delaware CT LF Funding Corp. Delaware CT BSI Funding Corp. Delaware CT-F2-GP, LLC Delaware CT-F2-LP, LLC Delaware CT Investment Management Co., LLC Delaware - ------------------------------------------------------------ ------------------- EX-23 21 ex23-1.txt EX. 23.1 - CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in the Registration Statements on Forms S-3 (Nos. 333-103662, 333-106970 and 333-111261) and in the related Prospectuses and on Forms S-8 (Nos. 333-39743, 333-72725 and 333-120145) pertaining to the Second Amended and Restated 1997 Long Term Incentive Stock Plan, Amended and Restated 1997 Non-Employee Director Stock Plan, 1998 Employee Stock Purchase Plan, 1998 Non-Employee Stock Purchase Plan, and Stock Purchase Loan Plan and the Amended and Restated 2004 Long-Term Incentive Plan of Capital Trust, Inc. and Subsidiaries of our reports dated March 9, 2005, with respect to the consolidated financial statements and schedule of the Capital Trust, Inc. and Subsidiaries, Capital Trust Inc. and Subsidiaries management's assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of the Capital Trust, Inc. and Subsidiaries, included in this Annual Report (Form 10-K) for the year ended December 31, 2004. /s/ Ernst & Young LLP New York, New York March 10, 2005 EX-31 22 ex31-1.txt EX.31.1 - 302 CERT OF CEO Exhibit 31.1 CERTIFICATION PURSUANT TO 17 CFR 240.13a-14 PROMULGATED UNDER SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, John R. Klopp, certify that: 1. I have reviewed this annual report on Form 10-K of Capital Trust, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; (b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: March 10, 2005 /s/ John R. Klopp - ----------------- John R. Klopp Chief Executive Officer EX-31 23 ex31-2.txt EX. 31.2 - 302 CERT OF CFO Exhibit 31.2 CERTIFICATION PURSUANT TO 17 CFR 240.13a-14 PROMULGATED UNDER SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Brian H. Oswald, certify that: 1. I have reviewed this annual report on Form 10-K of Capital Trust, Inc.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; (b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: March 10, 2005 /s/ Brian H. Oswald - ------------------- Brian H. Oswald Chief Financial Officer EX-32 24 ex32-1.txt EX. 906 CERT OF CEO AND CFO Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Capital Trust, Inc. (the "Company") on Form 10-K for the period ending December 31, 2004 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, John R. Klopp, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ John R. Klopp - ------------------------ John R. Klopp Chief Executive Officer March 10, 2005 Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Capital Trust, Inc. (the "Company") on Form 10-K for the period ending December 31, 2004 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Brian H. Oswald, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Brian H. Oswald - ------------------- Brian H. Oswald Chief Financial Officer March 10, 2005 EX-99 25 ex99-1.txt EX. 99.1 - FORWARD-LOOKING INF AND RISK FACTORS EXHIBIT 99.1 FORWARD-LOOKING INFORMATION AND RISK FACTORS Our Annual Report on Form l0-K for the year ended December 31, 2004, our 2004 Annual Report to Shareholders, any of our Quarterly Reports on Form 10-Q or Current Reports on Form 8-K of the Company, or any other oral or written statements made in press releases or otherwise by or on behalf of Capital Trust, may contain forward-looking statements within the meaning of the Section 21E of the Securities and Exchange Act of 1934, as amended, which involve certain risks and uncertainties. Forward-looking statements predict or describe our future operations, our business plans, our business and investment strategies and portfolio management and the performance of our investments and funds under management. These forward-looking statements are identified by their use of such terms and phrases as "intends," "intend," "intended," "goal," "estimate," "estimates," "expects," "expect," "expected," "project," "projected," "projections," "plans," "seeks," "anticipates," "anticipated," "should," "could," "may," "will," "designed to," "foreseeable future," "believe," "believes" and "scheduled" and similar expressions. Our actual results or outcomes may differ materially from those anticipated. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date the statement was made. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Our actual results may differ significantly from any results expressed or implied by these forward-looking statements. Some, but not all, of the factors that might cause such a difference include, but are not limited to: o the general political, economic and competitive conditions, in the United States; o the level and volatility of prevailing interest rates and credit spreads, adverse changes in general economic conditions and real estate markets, the deterioration of credit quality of borrowers and the risks associated with the ownership and operation of real estate; o a significant compression of the spreads of the interest rates earned on interest-earning assets over the interest rates paid on interest-bearing liabilities that adversely affects operating results; o adverse developments in the availability of desirable loan and investment opportunities and the ability to obtain and maintain targeted levels of leverage and borrowing costs; o adverse changes in local market conditions, competition, increases in operating expenses and uninsured losses affecting a property owner's ability to cover operating expenses and the debt service on financing provided by us; o authoritative generally accepted accounting principles or policy changes from such standard-setting bodies as the Financial Accounting Standards Board and the Securities and Exchange Commission; and o the risk factors set forth below. Risks Related to Our Investment Program Our existing loans and investments expose us to a high degree of risk associated with investing in commercial real estate-related assets. Real estate historically has experienced significant fluctuations and cycles in performance that may result in reductions in the value of our real estate-related investments. The performance and value of our loans and investments once originated or acquired by us depends on many factors beyond our control. The ultimate performance and value of our investments is subject to the varying degrees of risk generally incident to the ownership and operation of the commercial properties which collateralize or support our investments. The ultimate performance and value of our loans and investments depends upon the commercial property owner's ability to operate the property so that it produces cash flows needed to pay the interest and principal due to us on our loans and investments. Revenues and cash flows may be adversely affected by: o changes in national economic conditions; o changes in local real estate market conditions due to changes in national or local economic conditions or changes in local property market characteristics; o competition from other properties offering the same or similar services; o changes in interest rates and in the availability of mortgage financing; o the ongoing need for capital improvements, particularly in older structures; o changes in real estate tax rates and other operating expenses; o adverse changes in governmental rules and fiscal policies, civil unrest, acts of God, including earthquakes, hurricanes and other natural disasters, acts of war or terrorism, which may decrease the availability of or increase the cost of insurance or result in uninsured losses; o adverse changes in zoning laws; o the impact of present or future environmental legislation and compliance with environmental laws; and o other factors that are beyond our control and the control of the commercial property owners. In the event that any of the properties underlying our loans or investments experiences any of the foregoing events or occurrences, the value of, and return on, such investments, our profitability and the market price of our class A common stock would be negatively impacted. We may change our investment strategy without shareholder consent which may result in riskier investments than our current investments. As part of our strategy, we may seek to expand our investment activities beyond real estate-related investments. We may change our investment activities at any time without the consent of our shareholders, which could result in our making investments that are different from, and possibly riskier than, our current real estate investments. New investments we may make outside of our area of expertise may not perform as well as our current portfolio of real estate investments. We are exposed to the risks involved with making subordinated investments. Our investments involve the risks attendant to investments consisting of subordinated loan positions. In many cases, management of our investments and our remedies with respect thereto, including the ability to foreclose on or direct decisions with respect to the collateral securing such investments, is subject to the rights of senior lenders and the rights set forth in inter-creditor or servicing agreements. We may not be able to obtain the level of leverage necessary to optimize our return on investment. Our return on investment depends, in part, upon our ability to grow our balance sheet portfolio of invested assets and those of our funds through the use of leverage at interest rates that are lower than the interest rates earned on our investments. We generally obtain leverage through bank credit facilities, repurchase agreements and other borrowings. Our ability to obtain the necessary leverage on attractive terms ultimately depends upon the quality of the portfolio assets that are being pledged and our ability to maintain interest coverage ratios meeting prevailing market underwriting standards which vary according to lenders' assessments of our and our funds' creditworthiness and the terms of the borrowings. Our failure to obtain and/or maintain leverage at desired levels, or to obtain leverage on attractive terms, could have a material adverse effect on our performance or that of our funds. Moreover, we are dependent upon a few lenders to provide the primary credit facilities for our origination or acquisition of loans and investments. Our ability to obtain financing through collateralized debt obligations is subject to conditions in the debt capital markets, which may be adverse from time to time, that affect the level of investor demand for such securities, which are impacted by factors beyond our control. -2- We are subject to the risks of holding leveraged investments. Leverage creates an opportunity for increased return on equity, but at the same time creates other risks. For example, leveraging magnifies changes in the net worth of our funds. We and our funds will leverage assets only when there is an expectation that leverage will enhance returns, although we cannot assure you that the use of leverage will prove to be beneficial. Increases in credit spreads in the market generally may adversely affect the market value of our investments. Because borrowings under our credit facilities are secured by our investments, the borrowings available to us may decline if the market value of our investments decline. Moreover, we cannot assure you that we and our funds will be able to meet debt service obligations and, to the extent such obligations are not met, there is a risk of loss of some or all of our and their assets through foreclosure or a financial loss if we or they are required to liquidate assets at a commercially inopportune time to satisfy our debt obligations. Our success depends on the availability of attractive investments and our ability to identify, structure, consummate, manage and realize returns on attractive investments. Our operating results are dependent upon the availability of, as well as our ability to identify, structure, consummate, manage and realize returns on, credit-sensitive investment opportunities. In general, the availability of desirable credit sensitive investment opportunities and, consequently, our balance sheet returns and our funds' investment returns, will be affected by the level and volatility of interest rates, by conditions in the financial markets, by general economic conditions, by the market and demand for credit-sensitive investment opportunities, and by the supply of capital for such investment opportunities. We cannot assure you that we will be successful in identifying and consummating investments which satisfy our rate of return objectives or that such investments, once consummated, will perform as anticipated. In addition, notwithstanding the fact that we earn base management fees based upon committed capital during the investment period, if we are not successful in investing all available equity capital for our funds, the potential revenues we earn, including base management fees that are charged on the amount of invested assets after the investment period and incentive management fees, will be reduced. We may expend significant time and resources in identifying and pursuing targeted investments, some of which may not be consummated. The real estate investment business is highly competitive. Our success depends on our ability to compete with other providers of capital for real estate investments. Our business is highly competitive. We compete for attractive investments with traditional lending sources, such as insurance companies and banks, as well as other REITs, specialty finance companies and private equity funds with similar investment objectives, which may make it more difficult for us to consummate our target investments. Many of our competitors have greater financial resources than us, which provides them with greater operating flexibility. Our loans and investments may be subject to fluctuations in interest rates which may not be adequately protected, or protected at all, by our hedging strategies. Our current balance sheet investment program emphasizes loans with "floating" interest rates to protect against fluctuations in interest rates. We do, however, from time to time make fixed rate loans and purchase fixed rate securities, which are subject to the risk of fluctuations in interest rates. Depending on market conditions, fixed rate assets may become a greater portion of our new loan originations. In such cases, we may employ various hedging strategies to limit the effects of changes in interest rates, including engaging in interest rate swaps, caps, floors and other interest rate derivative products. No strategy can completely insulate us or our funds from the risks associated with interest rate changes and there is a risk that they may provide no protection at all. Hedging transactions involve certain additional risks such as counterparty risk, the legal enforceability of hedging contracts, the early repayment of hedged transactions and the risk that unanticipated and significant changes in interest rates may cause a significant loss of basis in the contract and a change in current period expense. We cannot assure you that we will be able to enter into hedging transactions or that such hedging transactions will adequately protect us or our funds against the foregoing risks. In addition, cash flow hedges which are not perfectly correlated with a variable rate financing will impact our reported income as gains, and losses on the ineffective portion of such hedges will be recorded. -3- Our loans and investments may be illiquid which will constrain our ability to vary our portfolio of investments. Our real estate investments are relatively illiquid. Such illiquidity may limit our ability to vary our portfolio or our funds' portfolios of investments in response to changes in economic and other conditions. Illiquidity may result from the absence of an established market for investments as well as the legal or contractual restrictions on their resale. In addition, illiquidity may result from the decline in value of a property securing one of our or our funds' investments. We cannot assure you that the fair market value of any of the real property serving as security will not decrease in the future, leaving our or our funds' investments under-collateralized or not collateralized at all, which could impair the liquidity and value, as well as our return on such investments. We may not have control over certain of our loans and investments. Our ability to manage our portfolio of loans and investments may be limited by the form in which they are made. In certain situations, we or our funds may: o acquire investments subject to rights of senior classes and servicers under inter-creditor or servicing agreements; o acquire only a participation in an underlying investment; o co-invest with third parties through partnerships, joint ventures or other entities, thereby acquiring non-controlling interests; or o rely on independent third party management or strategic partners with respect to the management of an asset. Therefore, we may not be able to exercise control over the loan or investment. Such financial assets may involve risks not present in investments where senior creditors, servicers or third party controlling investors are not involved. Our rights to control the process following a borrower default may be subject to the rights of senior creditors or servicers whose interests may not be aligned with ours. A third party partner or co-venturer may have financial difficulties resulting in a negative impact on such asset, may have economic or business interests or goals which are inconsistent with ours and those of our funds, or may be in a position to take action contrary to our or our funds' investment objectives. In addition, we and our funds may, in certain circumstances, be liable for the actions of our third party partners or co-venturers. We may not achieve our targeted rate of return on our investments. We originate or acquire investments based on our estimates or projections of overall rates of return on such investments, which in turn are based on, among other considerations, assumptions regarding the performance of assets, the amount and terms of available financing to obtain desired leverage and the manner and timing of dispositions, including possible asset recovery and remediation strategies, all of which are subject to significant uncertainty. In addition, events or conditions that we have not anticipated may occur and may have a significant effect on the actual rate of return received on an investment. We are currently experiencing a low interest rate environment which negatively impacts our ability to originate or acquire investments that produce rates of returns similar to existing investments that were added to our portfolio during a higher interest rate environment. As we acquire or originate investments for our balance sheet portfolio, whether as new additions or as replacements for maturing investments, there can be no assurance that we will be able to originate or acquire investments that produce rates of return comparable to rates on our existing investments. The commercial mortgage and mezzanine loans we originate or acquire and the commercial mortgage loans underlying the CMBS in which we invest are subject to delinquency, foreclosure and loss, which could result in losses to us. Our commercial mortgage and mezzanine loans are secured by commercial property and are subject to risks of delinquency and foreclosure, and risks of loss that are greater than similar risks associated with loans made on the -4- security of single-family residential property. The ability of a borrower to repay a loan secured by an income-producing property typically is dependent primarily upon the successful operation of the property rather than upon the existence of independent income or assets of the borrower. If the net operating income of the property is reduced, the borrower's ability to repay the loan may be impaired. Net operating income of an income-producing property can be affected by, among other things: tenant mix, success of tenant businesses, property management decisions, property location and condition, competition from comparable types of properties, changes in laws that increase operating expenses or limit rents that may be charged; any need to address environmental contamination at the property; changes in national, regional or local economic conditions and/or specific industry segments; declines in regional or local real estate values and declines in regional or local rental or occupancy rates; increases in interest rates, real estate tax rates and other operating expenses; and changes in governmental rules, regulations and fiscal policies, including environmental legislation, acts of God, terrorism, social unrest and civil disturbances. Our investments in subordinated CMBS are subject to losses. In general, losses on an asset securing a mortgage loan included in a securitization will be borne first by the equity holder of the property, then by a cash reserve fund or letter of credit, if any, and then by the most junior security holder. In the event of default and the exhaustion of any equity support, reserve fund, letter of credit and any classes of securities junior to those in which we invest, we may not be able to recover all of our investment in the securities we purchase. In addition, if the underlying mortgage portfolio has been overvalued by the originator, or if the values subsequently decline and, as a result, less collateral is available to satisfy interest and principal payments due on the related mortgage-backed securities, the securities in which we invest may incur significant losses. The prices of lower credit quality securities are generally less sensitive to interest rate changes than more highly rated investments, but more sensitive to adverse economic downturns and underlying borrower developments. A projection of an economic downturn, for example, could cause a decline in the price of lower credit quality securities because the ability of borrowers of the mortgages underlying the mortgage-backed securities to make principal and interest payments may be impaired. In such event, existing credit support in the securitization structure may be insufficient to protect us against loss of our principal on these securities. We may experience significant reductions in net income if the impairments on our CMBS investments are deemed to be "other-than-temporary". The current fair value of certain of our CMBS investments is less than their recorded amortized cost. Since our CMBS investments are accounted for as available-for-sale securities, we have reduced our shareholders equity by an amount equal to the difference between the amortized cost and the fair value by taking a charge to other comprehensive income. As of December 31, 2004, these unrealized losses totaled $10.8 million. Under generally accepted accounting principles, if there are significant changes in the future to the expected cash flows from a particular investment due to prepayment or credit loss experience, the investment will have incurred an other-than-temporary impairment. If that occurs, we will be required to write down the investment to its fair value and take a charge to income equal to the unrealized loss, recognizing an offsetting increase to other comprehensive income with equity remaining unchanged. If we recognize other-than-temporary impairments on our CMBS investments that have experienced significant reductions in fair value, the resulting write-downs could result in significant reductions of our net income for the period in which the other-than-temporary impairment is recognized. We may invest in troubled assets that are subject to a higher degree of financial risk. We may make investments in non-performing or other troubled assets that involve a higher degree of financial risk. We cannot assure you that our investment objectives will be realized or that there will be any return on our investment. Furthermore, investments in properties subject to work-out conditions or under bankruptcy protection laws may, in certain circumstances, be subject to additional potential liabilities that could exceed the value of our original investment, including equitable subordination and/or disallowance of claims or lender liability. We may not be able to acquire eligible investments for a collateralized debt obligation issuance, or may not be able to issue collateralized debt obligation securities on attractive terms, which may require us to utilize more costly financing for our investments. -5- We intend to capitalize on opportunities to finance certain of our investments on a non-recourse, long-term basis, such as through the issuance of collateralized debt obligations. During the period that we are acquiring these investments, we intend to finance our purchases through our credit and repurchase obligation facilities. We use these facilities to finance our acquisition of investments until we have accumulated a sufficient quantity of investments, at which time we may refinance these lines through a securitization, such as a collateralized debt obligation issuance, or other types of long-term financing. As a result, we are subject to the risk that we will not be able to acquire a sufficient amount of eligible investments to maximize the efficiency of a collateralized debt obligation issuance. In addition, conditions in the capital markets may make the issuance of collateralized debt obligations less attractive to us when we do have a sufficient pool of collateral. If we are unable to issue a collateralized debt obligation to finance these investments, we may be required to utilize other forms of potentially less attractive financing. We may not be able to find suitable replacement investments in collateralized debt obligations with reinvestment periods. Some collateralized debt obligations have periods where principal proceeds received from assets securing the collateralized debt obligation can be reinvested for a defined period of time, commonly referred to as a reinvestment period. Our ability to find suitable investments during the reinvestment period that meet the criteria set forth in the collateralized debt obligation documentation and by rating agencies may determine the success of our collateralized debt obligation investments. Our potential inability to find suitable investments may cause, among other things, interest deficiencies, hyper-amortization of the senior collateralized debt obligation liabilities and may cause us to reduce the life of our collateralized debt obligations and accelerate the amortization of certain fees and expenses. The use of collateralized debt obligation financings with over-collateralization and interest coverage requirements may have a negative impact on our cash flow. The terms of collateralized debt obligations will generally provide that the principal amount of investments must exceed the principal balance of the related bonds by a certain amount and that interest income exceeds interest expense by a certain amount. We anticipate that the collateralized debt obligation terms will provide that, if certain delinquencies and/or losses or other factors cause a decline in collateral or cash flow levels, the cash flow otherwise payable on our investment may be redirected to repay classes of CDOs senior to ours until the issuer or the collateral is in compliance with the terms of the governing documents. Other tests (based on delinquency levels or other criteria) may restrict our ability to receive net income from assets pledged to secure collateralized debt obligations. We cannot assure you that the performance tests will be satisfied. Nor can we assure you, in advance of completing negotiations with the rating agencies or other key transaction parties as to the actual terms of the delinquency tests, over-collateralization and interest coverage terms, cash flow release mechanisms or other significant factors upon which net income to us will be calculated. Failure to obtain favorable terms with regard to these matters may adversely affect the availability of net income to us. If our investments fail to perform as anticipated, our over-collateralization, interest coverage or other credit enhancement expense associated with our collateralized debt obligation financings will increase. We may be required to repurchase loans that we have sold or to indemnify holders of our collateralized debt obligations. If any of the loans we originate or acquire and sell or securitize through collateralized debt obligations do not comply with representations and warranties that we make about certain characteristics of the loans, the borrowers and the underlying properties, we may be required to repurchase those loans or replace them with substitute loans. In addition, in the case of loans that we have sold instead of retained, we may be required to indemnify persons for losses or expenses incurred as a result of a breach of a representation or warranty. Repurchased loans typically require a significant allocation of working capital to carry on our books, and our ability to borrow against such assets is limited. Any significant repurchases or indemnification payments could adversely affect our financial condition and operating results. -6- The impact of the events of September 11, 2001 and the resulting effect on terrorism insurance expose us to certain risks. The terrorist attacks on September 11, 2001 disrupted the U.S. financial markets, including the real estate capital markets, and negatively impacted the U.S. economy in general. Any future terrorist attacks, the anticipation of any such attacks, and the consequences of any military or other response by the U.S. and its allies may have a further adverse impact on the U.S. financial markets and the economy generally. We cannot predict the severity of the effect that such future events would have on the U.S. financial markets, the economy or our business. In addition, the events of September 11 created significant uncertainty regarding the ability of real estate owners of high profile assets to obtain insurance coverage protecting against terrorist attacks at commercially reasonable rates, if at all. With the enactment of the Terrorism Risk Insurance Act of 2002, insurers must make terrorism insurance available under their property and casualty insurance policies through the end of 2005, which may be extended by the U.S. Congress beyond 2005, but this legislation does not regulate the pricing of such insurance. The absence of affordable insurance coverage may adversely affect the general real estate lending market, lending volume and the market's overall liquidity and may reduce the number of suitable investment opportunities available to us and the pace at which we are able to make investments. If the properties that we invest in are unable to obtain affordable insurance coverage, the value of those investments could decline and in the event of an uninsured loss, we could lose all or a portion of our investment. The economic impact of any future terrorist attacks could also adversely affect the credit quality of some of our loans and investments. Some of our loans and investments will be more susceptible to the adverse effects than others, such as hotel loans, which may experience a significant reduction in occupancy rates following any future attacks. We may suffer losses as a result of the adverse impact of any future attacks and these losses may adversely impact our results of operation. Risks Related to Our Investment Management Business Because we commenced our investment management business in 2000, we are subject to risks and uncertainties associated with developing and operating a new business, and we may not achieve from this new business the investment returns that we expect. Our investment management business commenced in 2000 and, therefore, has a limited track record of proven results upon which to predict our future performance. We will encounter risks and difficulties as we proceed to develop and operate our investment management business. In order to achieve our goals as an investment manager, we must: o manage our funds successfully by investing a majority of our funds' capital in suitable investments that meet the funds' specified investment criteria; o actively manage the assets in our portfolios in order to realize targeted performance; o incentivize our management and professional staff to the task of developing and operating the investment management business; and o structure, sponsor and capitalize future funds and other investment products under our management that provide investors with attractive investment opportunities. If we do not successfully develop and operate our investment management business to achieve the investment returns that we or the market anticipates, the market price of our class A common stock could decline. We may pursue fund management opportunities related to other classes of investments where we do not have prior investment experience. We may expand our fund management business to the management of private equity funds involving other investment classes where we do not have prior investment experience. We may find it difficult to attract third party investors without a performance track record involving such investments. Even if we attract third party investment, -7- there can be no assurance that we will be successful in deploying the capital to achieve targeted returns on the investments. We face substantial competition from established participants in the private equity market as we offer mezzanine and other funds to third party investors. We face significant competition from large financial and other institutions that have proven track records in marketing and managing private equity investment funds and otherwise have a competitive advantage over us because they have access to pre-existing third party investor networks into which they can channel competing investment opportunities. If our competitors offer investment products that are competitive with the mezzanine and other fund investments offered by us, we will find it more difficult to attract investors and to capitalize our mezzanine and other funds. Our funds are subject to the risk of defaults by third party investors on their capital commitments. The capital commitments made by third party investors to our funds represent unsecured promises by those investors to contribute cash to the funds from time to time as investments are made by the funds. Accordingly, we are subject to general credit risks that the investors may default on their capital commitments. If defaults occur, we may not be able to close loans and investments we have identified and negotiated, which could materially and adversely affect the funds' investment program or make us liable for breach of contract, in either case to the detriment of our franchise in the private equity market. Risks Related to Our Company We are dependent upon our senior management team to develop and operate our business. Our ability to develop and operate our business depends to a substantial extent on the experience, relationships and expertise of our senior management and key employees. We cannot assure you that these individuals will remain in our employ. The employment agreement with our chief executive officer, John R. Klopp, expires on December 31, 2008, unless further extended. The loss of the services of our senior management and key employees could have a material adverse effect on our operations. There may be conflicts between the interests of our investment funds and us. We are subject to a number of potential conflicts between our interests and the interests of our managed investment funds. Although we have agreed to offer Fund III the first opportunity to invest in investment opportunities which have characteristics and projected leveraged returns which meet Fund III's investment and return objectives, we are subject to potential conflicts of interest in the allocation of investment opportunities between our balance sheet and our managed funds. In addition, we may make investments that are senior or junior to, participations in, or have rights and interests different from or adverse to, the investments made by our managed funds. Our interests in such investments may conflict with the interests of our managed funds in related investments at the time of origination or in the event of a default or restructuring of the investment. In the event a default occurs with respect to such an investment, the directors of Fund III appointed by us have agreed to recuse themselves from any vote of the board of Fund III concerning such investment and our co-sponsor's controlled advisor to Fund III will assume and perform our asset management responsibility with respect to such investment. Finally, our officers and employees may have conflicts in allocating their time and services among us and our managed funds. Our balance sheet portfolio continues to have concentrations in mark-to-market mortgage-backed securities which subjects us to greater variations in equity and income as we record balance sheet gains and losses on such assets. Our venture agreement with affiliates of Citigroup Alternative Investments, LLC placed restrictions on our ability to originate new mezzanine loan investments for our balance sheet during the investment period for Fund II which resulted in our balance sheet portfolio becoming more concentrated in longer term fixed rate mortgage-backed securities that had been originated prior to 2000. We have adopted accounting policies under which such securities are recorded as available-for-sale and changes in the market value will impact either or both shareholders' -8- equity or net income depending on the characterization of the change in market value. If a reduction in market value is deemed to be other than temporary, generally due to a change in the credit risk, the reduction in value will be recorded as a reduction of net income. If any of the available-for-sale securities are sold, the resulting gain or loss will be recorded through the income statement. All other changes in market value will impact shareholders equity only. While the restrictions on our balance sheet investment activities diminished when the investment period for Fund II ended and we have begun making new investments for our own account, there can be no assurance that the concentration in mark-to-market mortgage-backed securities will be reduced in the near term through new originations. In an environment of relatively low interest rates, there is also a higher risk that our existing non-mark-to-market loans will pay off early. To the extent our balance sheet remains concentrated in mark-to-market assets, we will remain subject to potential swings in equity and income as we record gains and losses on such assets on our balance sheet. If interest rates fluctuate and significantly affect the market value of such mark-to-market assets, the corresponding reductions or increases in our equity and income may be significant. We must manage our portfolio in a manner that allows us to rely on an exception from registration under the Investment Company Act of 1940 in order to avoid the consequences of regulation under that Act. We rely on an exception from registration as an investment company afforded by Section 3(c)(5)(C) of the Investment Company Act of 1940. Under this exception, we are required to maintain, on the basis of positions taken by the SEC staff in interpretive and no-action letters, a minimum of 55% of the value of the total assets of our portfolio in "mortgages and other liens on and interests in real estate." We refer to this category of investments herein as "Qualifying Interests." In addition, we must maintain an additional minimum of 25% of the value of our total assets in Qualifying Interests or other real estate-related assets. Because registration as an investment company would significantly affect our ability to engage in certain transactions or to organize ourselves in the manner we are currently organized, we intend to maintain our qualification for this exception from registration. In the past, when required due to the mix of assets in our balance sheet portfolio, we have purchased pools of whole loan residential mortgage-backed securities that we treat as Qualifying Interests based on SEC staff positions. Investments in such pools of whole loan residential mortgage-backed securities may not represent an optimum use of our investable capital when compared to the available investments we target pursuant to our investment strategy. We continue to analyze our investments and may acquire other pools of whole loan mortgage-backed securities when and if required for compliance purposes. In addition, certain of our investments in subordinated CMBS have terms which we believe allows them to be categorized as Qualifying Interests, including rights to cure any defaults on senior CMBS classes, rights to acquire such senior classes in the event of a default and special servicing rights to service defaulted mortgage loans, including rights to control the oversight and management of the resolution of such mortgage loans by workout or modification of loan provisions, foreclosure, deed in lieu of foreclosure or otherwise, and to control decisions with respect to the preservation of the collateral generally, including property management and maintenance decisions. We have not obtained an exemptive order or a no-action letter or other form of interpretive guidance from the SEC or its staff supporting our position, and, therefore, any decision by the SEC or its staff which advances a position to the contrary would require us to no longer treat these investments in subordinated CMBS as Qualifying Interests. If our portfolio does not comply with the requirements of the exception we rely upon, we could be forced to alter our portfolio by selling or otherwise disposing of a substantial portion of the assets that are not Qualifying Interests or by acquiring a significant position in assets that are Qualifying Interests. Altering our portfolio in this manner may have a material adverse effect on our investments if we are forced to dispose of or acquire assets in an unfavorable market and may materially and adversely affect our stock price. If it were established that we were an unregistered investment company, there would be a risk that we would be subject to monetary penalties and injunctive relief in an action brought by the SEC, that we would be unable to enforce contracts with third parties and that third parties could seek to obtain rescission of transactions undertaken during the period it was established that we were an unregistered investment company. -9- We may expand our franchise through business acquisitions and the recruitment of financial professionals, which may present additional costs and other challenges and may not prove successful. Our business plan contemplates expansion of our franchise into complementary investment strategies involving other credit-sensitive structured financial products. We may undertake such expansion through business acquisitions or the recruitment of financial professionals with experience in other products. We may also expend a substantial amount of time and capital pursuing opportunities to expand into complementary investment strategies that we do not consummate. The expansion of our operations could place a significant strain on our management, financial and other resources. Our ability to manage future expansion will depend upon our ability to monitor operations, maintain effective quality controls and significantly expand our internal management and technical and accounting systems, all of which could result in higher operating expenses and could adversely affect our current business, financial condition and results of operations. We cannot assure you that we will be able to identify and integrate businesses or professional teams we acquire to pursue complementary investment strategies and expand our business. Moreover, any decision to pursue expansion into businesses with complementary investment strategies will be in the discretion of our management and may be consummated without prior notice or shareholder approval. In such instances, shareholders will be relying on our management to assess the relative benefits and risks associated with any such expansion. Risks Relating to Our Class A Common Stock Because a limited number of shareholders, including members of our management team, own a substantial number of our shares, decisions made by them may be detrimental to your interests. By virtue of their direct and indirect share ownership, John R. Klopp, a director and our president and chief executive officer, Craig M. Hatkoff, a director and former officer, and other shareholders indirectly owned by trusts for the benefit of our chairman of the board, Samuel Zell, have the power to significantly influence our affairs and are able to influence the outcome of matters required to be submitted to shareholders for approval, including the election of our directors, amendments to our charter, mergers, sales of assets and other acquisitions or sales. The influence exerted by these shareholders over our affairs might not be consistent with the interests of some or all of our other shareholders. We cannot assure you that these shareholders will not exercise their influence over us in a manner detrimental to your interests. As of December 31, 2004, these shareholders collectively own and control 2,412,179 shares of our class A common stock representing approximately 16% of our outstanding class A common stock. This concentration of ownership may have the effect of delaying or preventing a change in control of our company, including transactions in which you might otherwise receive a premium for your class A common stock, and might negatively affect the market price of our class A common stock. Berkley owns 2,000,000 shares of our class A common stock which represents 13% of our outstanding class A common stock. In addition, Vornado Realty, L.P. owns 1,424,474 shares of our class A common stock, General Motors Trust Bank, National Association, as trustee for the GMAM Investment Funds Trust owns 49,857 shares of our class A common stock and JPMorgan Chase Bank, as trustee for the GMAM Group Pension Trust II owns 662,380 shares of our class A common stock. An officer of Berkley and a person associated with the General Motor's pension trusts serve on our board of directors and, therefore, have the power to significantly influence our affairs. Through their significant ownership of our class A common stock, these security holders may have the ability to influence the outcome of matters submitted for shareholder approval. Some provisions of our charter and bylaws, and Maryland law may deter takeover attempts, which may limit the opportunity of our shareholders to sell their shares at a favorable price. Some of the provisions of our charter and bylaws and Maryland law discussed below could make it more difficult for a third party to acquire us, even if doing so might be beneficial to our shareholders by providing them with the opportunity to sell their shares at a premium to the then current market price. Issuance of Preferred Stock Without Shareholder Approval. Our charter authorizes our board of directors to authorize the issuance of up to 100,000,000 shares of preferred stock and up to 100,000,000 shares of class A common stock. Our charter also authorizes our board of directors, without shareholder approval, to classify or -10- reclassify any unissued shares of our class A common stock and preferred stock into other classes or series of stock and to amend our charter to increase or decrease the aggregate number of shares of stock of any class or series that may be issued. Our board of directors, therefore, can exercise its power to reclassify our stock to increase the number of shares of preferred stock we may issue without shareholder approval. Preferred stock may be issued in one or more series, the terms of which may be determined without further action by shareholders. These terms may include preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption. The issuance of any preferred stock, however, could materially adversely affect the rights of holders of our class A common stock and, therefore, could reduce its value. In addition, specific rights granted to future holders of our preferred stock could be used to restrict our ability to merge with, or sell assets to, a third party. The power of our board of directors to issue preferred stock could make it more difficult, delay, discourage, prevent or make it more costly to acquire or effect a change in control, thereby preserving the current shareholders' control. Advance Notice Bylaw. Our bylaws contain advance notice procedures for the introduction of business and the nomination of directors. These provisions could discourage proxy contests and make it more difficult for you and other shareholders to elect shareholder-nominated directors and to propose and approve shareholder proposals opposed by management. Maryland Takeover Statutes. We are subject to the Maryland Business Combination Act which could delay or prevent an unsolicited takeover of us. The statute substantially restricts the ability of third parties who acquire, or seek to acquire, control of us to complete mergers and other business combinations without the approval of our board of directors even if such transaction would be beneficial to shareholders. "Business combinations" between such a third party acquiror or its affiliate and us are prohibited for five years after the most recent date on which the acquiror or its affiliate becomes an "interested shareholder." An "interested shareholder" would be any person who beneficially owns 10 percent or more of our shareholder voting power or an affiliate or associate of ours who, at any time within the two-year period prior to the date interested shareholder status is determined, was the beneficial owner of 10 percent or more of our shareholder voting power. If our board of directors approved in advance the transaction that would otherwise give rise to the acquiror or its affiliate attaining such status, such as the issuance of shares of our class A common stock to Berkley, the acquiror or its affiliate would not become an interested shareholder and, as a result, it could enter into a business combination with us. Our board of directors could choose not to negotiate with an acquirer if the board determined in its business judgment that considering such an acquisition was not in our strategic interests. Even after the lapse of the five-year prohibition period, any business combination with an interested shareholder must be recommended by our board of directors and approved by the affirmative vote of at least: o 80% of the votes entitled to be cast by shareholders; and o two-thirds of the votes entitled to be cast by shareholders other than the interested shareholder and affiliates and associates thereof. The super-majority vote requirements do not apply if the transaction complies with a minimum price requirement prescribed by the statute. The statute permits various exemptions from its provisions, including business combinations that are exempted by the board of directors prior to the time that an interested shareholder becomes an interested shareholder. Our board of directors has exempted any business combination involving family partnerships controlled separately by John R. Klopp and Craig M. Hatkoff, and a limited liability company indirectly controlled by a trust for the benefit of Samuel Zell and his family. As a result, these persons and Berkley may enter into business combinations with us without compliance with the super-majority vote requirements and the other provisions of the statute. We are subject to the Maryland Control Share Acquisition Act. With certain exceptions, the Maryland General Corporation Law provides that "control shares" of a Maryland corporation acquired in a control share acquisition have no voting rights except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter, excluding shares owned by the acquiring person or by our officers or directors who are our employees, and may be redeemed by us. "Control shares" are voting shares which, if aggregated with all other -11- shares owned or voted by the acquirer, would entitle the acquirer to exercise voting power in electing directors within one of the specified ranges of voting power. A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions, including an undertaking to pay expenses, may compel our board to call a special meeting of shareholders to be held within 50 days of demand to consider the voting rights of the "control shares" in question. If no request for a meeting is made, we may present the question at any shareholders' meeting. If voting rights are not approved at the shareholders' meeting or if the acquiring person does not deliver the statement required by Maryland law, then, subject to certain conditions and limitations, we may redeem any or all of the control shares, except those for which voting rights have previously been approved for fair value. If voting rights for control shares are approved at a shareholders' meeting and the acquirer may then vote a majority of the shares entitled to vote, then all other shareholders may exercise appraisal rights. The fair value of the shares for purposes of these appraisal rights may not be less than the highest price per share paid by the acquirer in the control share acquisition. The control share acquisition statute does not apply to shares acquired in a merger, consolidation or share exchange if we are a party to the transaction, nor does it apply to acquisitions approved or exempted by our charter or bylaws. We have exempted certain holders identified in our bylaws from this statute which exemptions extend to Berkley, family partnerships controlled separately by John R. Klopp and Craig M. Hatkoff, and a limited liability company indirectly controlled by a trust for the benefit of Samuel Zell and his family. We are also subject to the Maryland Unsolicited Takeovers Act which permits our board of directors, among other things, to elect on our behalf to stagger the terms of directors, to increase the shareholder vote required to remove a director and to provide that shareholder-requested meetings may be called only upon the request of shareholders entitled to cast at least a majority of the votes entitled to be cast at the meeting. Such an election would significantly restrict the ability of third parties to wage a proxy fight for control of our board of directors as a means of advancing a takeover offer. If an acquirer was discouraged from offering to acquire us, or prevented from successfully completing a hostile acquisition, you could lose the opportunity to sell your shares at a favorable price. The market value of our class A common stock may be adversely affected by many factors. As with any public company, a number of factors may adversely influence the price of our class A common stock, many of which are beyond our control. These factors include: o the level of institutional interest in us; o the perception of REITs generally and REITs with portfolios similar to ours, in particular, by market professionals; o the attractiveness of securities of REITs in comparison to other companies; and o the market's perception of our growth potential and potential future cash dividends. An increase in market interest rates may lead prospective purchasers of our class A common stock to expect a higher dividend yield, which would adversely affect the market price of our class A common stock. One of the factors that will influence the price of our class A common stock will be the dividend yield on our stock (distributions as a percentage of the price of our stock) relative to market interest rates. An increase in market interest rates may lead prospective purchasers of our class A common stock to expect a higher dividend yield, which would adversely affect the market price of our class A common stock. Your ability to sell a substantial number of shares of our class A common stock may be restricted by the low trading volume historically experienced by our class A common stock. Although our class A common stock is listed on the New York Stock Exchange, the daily trading volume of our shares of class A common stock has historically been lower than the trading volume for certain other companies. As a result, the ability of a holder to sell a substantial number of shares of our class A common stock in a timely manner without causing a substantial decline in the market of the shares, especially by means of a large block trade, may be restricted by the limited trading volume of the shares of our class A common stock. -12- Risks Related to our REIT Status Our charter does not permit any individual to own more than over 2.5% of our class A common stock, and attempts to acquire our class A common stock in excess of the 2.5% limit would be void without the prior approval of our board of directors. For the purpose of preserving our qualification as a REIT for federal income tax purposes, our charter prohibits direct or constructive ownership by any individual of more than 2.5% of the lesser of the total number or value of the outstanding shares of our class A common stock as a means of preventing ownership of more than 50% of our class A common stock by five or fewer individuals. The charter's constructive ownership rules are complex and may cause the outstanding class A common stock owned by a group of related individuals or entities to be deemed to be constructively owned by one individual. As a result, the acquisition of less than 2.5% of our outstanding class A common stock by an individual or entity could cause an individual to own constructively in excess of 2.5% of our outstanding class A common stock, and thus be subject to the charter's ownership limit. There can be no assurance that our board of directors, as permitted in the charter, will increase this ownership limit in the future. Any attempt to own or transfer shares of our class A common stock in excess of the ownership limit without the consent of our board of directors will be void, and will result in the shares being transferred by operation of law to a charitable trust, and the person who acquired such excess shares will not be entitled to any distributions thereon or to vote such excess shares. Our charter contains a provision that exempts certain of our officers, directors and their related persons from this ownership limit and we increased the limit for William R. Berkley to 6.0% and for one other major shareholder of Berkley identified to us to 4.0%. The 2.5% ownership limit may have the effect of precluding a change in control of us by a third party without the consent of our board of directors, even if such change in control would be in the interest of our shareholders or would result in a premium to the price of our class A common stock (and even if such change in control would not reasonably jeopardize our REIT status). The ownership limit exemptions and the reset limits granted to date would limit our board of directors' ability to reset limits in the future and at the same time maintain compliance with the REIT qualification requirement prohibiting ownership of more than 50% of our class A common stock by five or fewer individuals. There are no assurances that we will be able to pay dividends in the future. We intend to pay quarterly dividends and to make distributions to our shareholders in amounts such that all or substantially all of our taxable income in each year, subject to certain adjustments, is distributed. This, along with other factors, should enable us to qualify for the tax benefits accorded to a REIT under the Internal Revenue Code. All distributions will be made at the discretion of our board of directors and will depend on our earnings, our financial condition, maintenance of our REIT status and such other factors as our board of directors may deem relevant from time to time. There are no assurances that we will be able to pay dividends in the future. In addition, some of our distributions may include a return of capital, which would reduce the amount of capital available to operate our business. Recent tax legislation may have negative consequences for REITs. Recent tax legislation allows certain corporations to pay dividends that qualify for a reduced tax rate in the hands of certain shareholders. This legislation generally does not apply to REITs. Although the legislation does not adversely affect the tax treatment of REITs, it may cause investments in non-REIT corporations to become relatively more desirable. As a result, the capital markets may be less favorable to REITs, such as ourselves, when they seek to raise equity capital, and the prices at which REIT equity securities trade, including our class A common stock, may decline or underperform non-REIT corporations. We will be dependent on external sources of capital to finance our growth. As with other REITs, but unlike corporations generally, our ability to finance our growth must largely be funded by external sources of capital because we generally will have to distribute to our shareholders 90% of our taxable income in order to qualify as a REIT, including taxable income where we do not receive corresponding cash. -13- Our access to external capital will depend upon a number of factors, including general market conditions, the market's perception of our growth potential, our current and potential future earnings, cash distributions and the market price of our class A common stock. If we do not maintain our qualification as a REIT, we will be subject to tax as a regular corporation and face a substantial tax liability. Our taxable REIT subsidiaries will be subject to income tax. We expect to operate so as to qualify as a REIT under the Internal Revenue Code. However, qualification as a REIT involves the application of highly technical and complex Internal Revenue Code provisions for which only a limited number of judicial or administrative interpretations exist. Even a technical or inadvertent mistake could jeopardize our REIT status. Furthermore, new tax legislation, administrative guidance or court decisions, in each instance potentially with retroactive effect, could make it more difficult or impossible for us to qualify as a REIT. If we fail to qualify as a REIT in any tax year, then: o we would be taxed as a regular domestic corporation, which under current laws, among other things, means being unable to deduct distributions to shareholders in computing taxable income and being subject to federal income tax on our taxable income at regular corporate rates; o any resulting tax liability could be substantial, could have a material adverse effect on our book value and could reduce the amount of cash available for distribution to shareholders; and o unless we were entitled to relief under applicable statutory provisions, we would be required to pay taxes, and thus, our cash available for distribution to shareholders would be reduced for each of the years during which we did not qualify as a REIT. Income from our fund management business is expected to be realized by one of our taxable REIT subsidiaries, and, accordingly, will be subject to income tax. Complying with REIT requirements may cause us to forego otherwise attractive opportunities. In order to qualify as a REIT for federal income tax purposes, we must continually satisfy tests concerning, among other things, our sources of income, the nature of our investments in commercial real estate and related assets, the amounts we distribute to our shareholders and the ownership of our stock. We may also be required to make distributions to shareholders at disadvantageous times or when we do not have funds readily available for distribution. Thus, compliance with REIT requirements may hinder our ability to operate solely on the basis of maximizing profits. Complying with REIT requirements may force us to liquidate or restructure otherwise attractive investments. In order to qualify as a REIT, we must also ensure that at the end of each calendar quarter, at least 75% of the value of our assets consists of cash, cash items, government securities and qualified REIT real estate assets. The remainder of our investments in securities cannot include more than 10% of the outstanding voting securities of any one issuer or 10% of the total value of the outstanding securities of any one issuer. In addition, no more than 5% of the value of our assets can consist of the securities of any one issuer. If we fail to comply with these requirements, we must dispose of a portion of our assets within 30 days after the end of the calendar quarter in order to avoid losing our REIT status and suffering adverse tax consequences. Complying with REIT requirements may force us to borrow to make distributions to shareholders. From time to time, our taxable income may be greater than our cash flow available for distribution to shareholders. If we do not have other funds available in these situations, we may be unable to distribute substantially all of our taxable income as required by the REIT provisions of the Internal Revenue Code. Thus, we could be required to borrow funds, sell a portion of our assets at disadvantageous prices or find another alternative. These options could increase our costs or reduce our equity. -14- The "taxable mortgage pool" rules may limit the manner in which we effect future securitizations. Certain of our future securitizations could be considered to result in the creation of taxable mortgage pools for federal income tax purposes. Since we conduct our operations to qualify as a REIT, so long as we own 100% of the equity interests in a taxable mortgage pool, we would not be adversely affected by the characterization of the securitization as a taxable mortgage pool (assuming that we do not have any shareholders who might cause a corporate income tax to be imposed upon us by reason of our owning a taxable mortgage pool). We would be precluded, however, from selling to outside investors equity interests in such securitizations or from selling any debt securities issued in connection with such securitizations that might be considered to be equity interests for tax purposes. These limitations will preclude us from using certain techniques to maximize our returns from securitization transactions. If the securitization vehicles in which we participate were considered a taxable mortgage pool, shareholders who are tax-exempt and shareholders who are not United States persons may be required to pay tax on their share of any excess inclusion income. -15- -----END PRIVACY-ENHANCED MESSAGE-----