Exhibit 4.16


 


GUARANTEE
AGREEMENT

by and between


 


CAPITAL
TRUST, INC.,

as Guarantor



and



THE BANK OF NEW YORK,

as Guarantee Trustee



relating to

CT PUBLIC PREFERRED TRUST [   ]


 


Dated
as of [     ], 2008


 

















 


CROSS-REFERENCE TABLE*


 


	
  Section of Trust Indenture
  Act of 1939, as amended

  	
   

  	
  Section of

  Guarantee

  Agreement

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  4.1(a)

  
	
  310(b)

  	
   

  	
  4.1(c), 2.8

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  2.2(b)

  
	
  311(b)

  	
   

  	
  2.2(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  2.2(a)

  
	
  312(b)

  	
   

  	
  2.2(b)

  
	
  313

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.5

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  1.1, 2.5, 3.2

  
	
  314(f)

  	
   

  	
  2.1, 3.2

  
	
  315(a)

  	
   

  	
  3.1(d)

  
	
  315(b)

  	
   

  	
  2.7

  
	
  315(c)

  	
   

  	
  3.1

  
	
  315(d)

  	
   

  	
  3.1(d)

  
	
  316(a)

  	
   

  	
  1.1, 2.6, 5.4

  
	
  316(b)

  	
   

  	
  5.3

  
	
  316(c)

  	
   

  	
  8.2

  
	
  317(a)

  	
   

  	
  Inapplicable

  
	
  317(b)

  	
   

  	
  Inapplicable

  
	
  318(a)

  	
   

  	
  2.1

  
	
  318(b)

  	
   

  	
  2.1

  
	
  318(c)

  	
   

  	
  2.1

  



 






* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.


 


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TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  TRUST INDENTURE ACT

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Trust Indenture Act; Application

  	
  4

  
	
  Section 2.2.

  	
  List of Holders

  	
  4

  
	
  Section 2.3.

  	
  Reports by the Guarantee Trustee

  	
  5

  
	
  Section 2.4.

  	
  Periodic Reports to the Guarantee Trustee

  	
  5

  
	
  Section 2.5.

  	
  Evidence of Compliance with Conditions Precedent

  	
  5

  
	
  Section 2.6.

  	
  Events of Default; Waiver

  	
  5

  
	
  Section 2.7.

  	
  Event of Default; Notice

  	
  6

  
	
  Section 2.8.

  	
  Conflicting Interests

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  POWERS, DUTIES AND
  RIGHTS OF THE GUARANTEE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Powers and Duties of the Guarantee Trustee

  	
  6

  
	
  Section 3.2.

  	
  Certain Rights of Guarantee Trustee

  	
  8

  
	
  Section 3.3.

  	
  Compensation; Indemnity; Fees

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  GUARANTEE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Guarantee Trustee; Eligibility

  	
  10

  
	
  Section 4.2.

  	
  Appointment, Removal and Resignation of the
  Guarantee Trustee

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  GUARANTEE

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Guarantee

  	
  11

  
	
  Section 5.2.

  	
  Waiver of Notice and Demand

  	
  11

  
	
  Section 5.3.

  	
  Obligations Not Affected

  	
  12

  
	
  Section 5.4.

  	
  Rights of Holders

  	
  12

  
	
  Section 5.5.

  	
  Guarantee of Payment

  	
  13

  
	
  Section 5.6.

  	
  Subrogation

  	
  13

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.7.

  	
  Independent Obligations

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  COVENANTS AND
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Subordination

  	
  13

  
	
  Section 6.2.

  	
  Pari Passu Guarantees

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  TERMINATION

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Termination

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
  Successors and Assigns

  	
  14

  
	
  Section 8.2.

  	
  Amendments

  	
  14

  
	
  Section 8.3.

  	
  Notices

  	
  14

  
	
  Section 8.4.

  	
  Benefit

  	
  15

  
	
  Section 8.5.

  	
  Governing Law

  	
  15

  
	
  Section 8.6.

  	
  Counterparts

  	
  15

  



 


iii

















 


GUARANTEE AGREEMENT, dated as of [    
], 2008 between CAPITAL TRUST, INC., a Maryland corporation (the “Guarantor”), having its principal office
at 410 Park Avenue, 14th Floor, New York, NY 10022 and THE BANK
OF NEW YORK, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of CT PUBLIC
PREFERRED TRUST [   ], a Delaware statutory trust (the “Issuer Trust”).


 


RECITALS
OF THE GUARANTOR AND THE ISSUER TRUST


 


WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of the date hereof (the “Trust Agreement”),
among Capital Trust, Inc., as Sponsor, The Bank of New York, as Property
Trustee, BNYM (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein, the Issuer Trust is issuing up to $[     ] aggregate Liquidation Amount (as defined
in the Trust Agreement) of its [     ]%
Fixed to Floating Rate Trust Preferred Securities (liquidation amount $1,000
per Preferred Security) (the “Preferred
Securities”), representing preferred undivided beneficial interests
in the assets of the Issuer Trust and having the terms set forth in the Trust
Agreement; and


 


WHEREAS, the Preferred Securities will be issued by the Issuer Trust
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust’s Common Securities (as defined herein), will be used to purchase
the Notes (as defined in the Trust Agreement) of the Guarantor, which Notes
will be deposited with The Bank of New York, as Property Trustee under the
Trust Agreement, as trust assets; and


 


WHEREAS, as an incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments
on the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the purchase of Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.


 


ARTICLE I



DEFINITIONS


 


Section 1.1.               Definitions.  For all purposes of this Guarantee Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:


 


(a)           The
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;


 


(b)           All
other terms used herein that are defined in the Trust Indenture Act (as defined
herein), either directly or by reference therein, have the meanings assigned to
them therein;


 

















 


(c)           The
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;


 


(d)           All
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles that are generally
accepted in the United States at the date or time of such computation; provided that when two or more principles
are so generally accepted, it shall mean that set of principles consistent with
those in use by the Guarantor;


 


(e)           Unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Guarantee
Agreement; and


 


(f)            The
words “hereby”, “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Guarantee Agreement as a whole and not to any particular
Article, Section or other subdivision.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control”,
when used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.


 


“Authorized Officer” of
any Person means any officer of such Person or any person authorized by or
pursuant to a resolution of the Board of Directors (or equivalent body) of such
Person.


 


“Board of Directors”
means the board of directors of the Guarantor or any committee of that board
duly authorized to act hereunder.


 


“Common Securities” means
the securities representing common undivided beneficial interests in the assets
of the Issuer Trust.


 


“Distributions” has the
meaning specified in the Trust Agreement.


 


“Event of Default” means (i) a
default by the Guarantor in any of its payment obligations under this Guarantee
Agreement or (ii) a default by the Guarantor in any other obligation
hereunder that remains unremedied for 30 days.


 


“Guarantee Agreement”
means this Guarantee Agreement, as modified, amended or supplemented from time
to time.


 


“Guarantee Payments”
means the following payments or distributions, without duplication, with
respect to the Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer Trust: (i) any accumulated and unpaid Distributions
required to be paid on the Preferred Securities, to the extent the Issuer Trust
shall have funds on hand available therefor 


 


2

















 


at such time; (ii) the Redemption Price (as defined in the Trust
Agreement) with respect to any Preferred Securities called for redemption by
the Issuer Trust, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless Notes are
distributed to the Holders, the lesser of (a) the Liquidation Distribution
(as defined in the Trust Agreement) with respect to the Preferred Securities,
to the extent that the Issuer Trust shall have funds on hand available therefor
at such time, and (b) the amount of assets of the Issuer Trust remaining
available for distribution to Holders on liquidation of the Issuer Trust.


 


“Guarantee Trustee” means
The Bank of New York, solely in its capacity as Guarantee Trustee and not in
its individual capacity, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee
Agreement, and thereafter means each such Successor Guarantee Trustee.


 


“Guarantor” has the
meaning specified in the first paragraph of this Guarantee Agreement.


 


“Holder” means any Holder
(as defined in the Trust Agreement) of any Preferred Securities; provided,
however, that in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, “Holder” shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.


 


“Indemnitee” has the
meaning specified in Section 3.3(c).


 


“Indenture” means the
Junior Subordinated Indenture, dated as of [    
], 2008, between Capital Trust, Inc. and The Bank of New York, as
trustee, as the same may be modified, amended or supplemented from time to
time, including by the First Supplemental Indenture thereto.


 


“Issuer Trust” has the
meaning specified in the first paragraph of this Guarantee Agreement.


 


“Liquidation Distribution”
has the meaning specified in the Trust Agreement.


 


“List of Holders” has the
meaning specified in Section 2.2(a).


 


“Majority in Liquidation Amount of
the Preferred Securities” means, except as provided by the Trust
Indenture Act, Preferred Securities representing more than 50% of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of all Preferred
Securities then Outstanding (as defined in the Trust Agreement).


 


“Officers’ Certificate”
means, with respect to any Person, a certificate signed by any two Authorized
Officers of such person. Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee
Agreement shall include:


 


(a)           a statement by each
officer signing the Officers’ Certificate that such officer has read the
covenant or condition and the definitions relating thereto;


 


3

















 


(b)           a brief statement of
the nature and scope of the examination or investigation undertaken by such
officer in rendering the Officers’ Certificate;


 


(c)           a statement that
such officer has made such examination or investigation as, in such officer’s
opinion, is necessary to enable such officer to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(d)           a statement as to
whether, in the opinion of such officer, such condition or covenant has been
complied with.


 


“Person” means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint-stock company, company, limited liability company,
trust, business trust, statutory trust, unincorporated association, or government
or any agency or political subdivision thereof, or any other entity of whatever
nature.


 


“Preferred Securities”
has the meaning specified in the recitals to this Guarantee Agreement.


 


“Successor Guarantee Trustee”
means a successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.


 


“Trust Agreement” means
the Amended and Restated Trust Agreement of the Issuer Trust referred to in the
recitals to this Guarantee Agreement, as modified, amended or supplemented from
time to time.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as
of which this Guarantee Agreement was executed; provided, however, that in the event the Trust Indenture Act
of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.


 


ARTICLE II


 


TRUST INDENTURE ACT


 


Section 2.1.               Trust
Indenture Act; Application.


 


(a)           This
Guarantee Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions.


 


(b)           If
and to the extent that any provision of this Guarantee Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act through operation of Section 318(c) thereof,
such imposed duties shall control. If any provision of this Guarantee Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Guarantee Agreement as so modified or to be excluded, as the case may be.


 


4

















 


Section 2.2.               List of
Holders.


 


(a)           The
Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) semiannually,
on or before [     ] and [     ] of each year, a list, in such form as
the Guarantee Trustee may reasonably require, of the names and addresses of the
Holders (a “List of Holders”) as
of a date not more than 15 days prior to the delivery thereof, and (b) at
such other times as the Guarantee Trustee may request in writing, within 30
days after the receipt by the Guarantor of any such request, a List of Holders
as of a date not more than 15 days prior to the time such list is furnished, in
each case to the extent such information is in the possession or control of the
Guarantor and has not otherwise been received by the Guarantee Trustee in its
capacity as such. Notwithstanding the preceding sentence, the Guarantor shall
not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List
of Holders previously given to it on receipt of a new List of Holders.


 


(b)           The
Guarantee Trustee shall comply with the requirements of Section 311(a), Section 311(b) and
Section 312(b) of the Trust Indenture Act.


 


Section 2.3.               Reports by the Guarantee Trustee.  Within 60 days after [June 15] of each
year, commencing [June 15], 2008, the Guarantee Trustee shall provide to
the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313
of the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.


 


Section 2.4.               Periodic Reports to the Guarantee Trustee.  The Guarantor shall provide to the Guarantee
Trustee, the Securities and Exchange Commission and the Holders such documents,
reports and information, if any, as required by Section 314 of the Trust
Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.


 


Section 2.5.               Evidence of Compliance with Conditions Precedent.  The Guarantor shall provide to the Guarantee
Trustee such evidence of compliance with such conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer of the Guarantor pursuant to Section 314(c)(1) may
be given in the form of an Officers’ Certificate.


 


Section 2.6.               Events of Default; Waiver.  The Holders of at least a Majority in
Liquidation Amount of the Preferred Securities may, by vote, on behalf of the
Holders of all the Preferred Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any default or Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.


 


5














 


Section 2.7.               Event of Default; Notice.


 


(a)           The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders, notice
of any such Event of Default known to the Guarantee Trustee, unless such Event
of Default has been cured before the giving of such notice, provided that, except in the case of a
default in the payment of a Guarantee Payment, the Guarantee Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.


 


(b)           The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice, or an officer
of the Guarantee Trustee charged with the administration of this Guarantee
Agreement shall have obtained actual knowledge, of such Event of Default.


 


Section 2.8.               Conflicting Interests.  The Trust Agreement and the Indenture shall
be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.


 


ARTICLE III



POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE


 


Section 3.1.               Powers and Duties of the Guarantee Trustee.


 


(a)           This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except to a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of its appointment to act as Guarantee
Trustee hereunder. The right, title and interest of the Guarantee Trustee, as
such, hereunder shall automatically vest in any Successor Guarantee Trustee,
upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.


 


(b)           If
an Event of Default has occurred and is continuing of which the Guarantee
Trustee is deemed to have knowledge pursuant to Section 2.7(b) hereof,
the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.


 


(c)           The
Guarantee Trustee, before the occurrence of any Event of Default, and after the
curing of all Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee Agreement, and
no implied covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. The Guarantee Trustee shall, during the existence of any
Event of Default of which the Guarantee Trustee is deemed to have knowledge
pursuant to Section 2.7(b) hereof and which has not been cured or
waived pursuant to Section 2.6, exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of care and
skill in its exercise thereof, as a 


 


6

















 


prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


 


(d)           No provision of this
Guarantee Agreement shall be construed to relieve the Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:


 


(i)            Prior
to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:


 


(A)          the duties
and obligations of the Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement (including pursuant to Section 2.1),
and the Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Guarantee
Agreement; and


 


(B)           in the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to the requirements
of this Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture Act are
specifically required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement.


 


(ii)           The
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by an officer of the Guarantee Trustee, unless it shall be proved that
the Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made.


 


(iii)          The
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation Amount of the Preferred
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee Agreement.


 


(iv)          No
provision of this Guarantee Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.


 


7

















 


Section 3.2.               Certain Rights of Guarantee Trustee.


 


(a)           Subject to the
provisions of Section 3.1:


 


(i)            The
Guarantee Trustee may rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably believed
by it to be genuine and to have been signed, sent or presented by the proper
party or parties.


 


(ii)           Any
direction or act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise
prescribed herein.


 


(iii)          Whenever,
in the administration of this Guarantee Agreement, the Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers’ Certificate which,
upon receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.


 


(iv)          The
Guarantee Trustee may consult with legal counsel, and the written advice or
opinion of such legal counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance with
such advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.


 


(v)           The
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee Agreement at the request or direction of
any Holder unless such Holder shall have provided to the Guarantee Trustee such
adequate security and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee against the costs, expenses (including
attorneys’ fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided that nothing contained in this
Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement.


 


(vi)          The
Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.


 


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(vii)         The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents or attorneys,
and the Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed by it with due care
hereunder.


 


(viii)        Whenever
in the administration of this Guarantee Agreement the Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.


 


(b)           No
provision of this Guarantee Agreement shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.


 


Section 3.3.               Compensation; Indemnity; Fees.


 


The Guarantor agrees:


 


(a)           to
pay to the Guarantee Trustee from time to time such reasonable compensation for
all services rendered by it hereunder as may be agreed by the Guarantor and the
Guarantee Trustee from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);


 


(b)           except
as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or
made by the Guarantee Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful misconduct; and


 


(c)           to
indemnify the Guarantee Trustee and its directors, officers, employees and
agents (collectively with the Guarantee Trustee, the “Indemnitees”) for, and to hold them
harmless against, any loss, liability or expense, including without limitation,
damages, fines, suits, actions, demands, penalties, costs, out-of-pocket or
incidental expenses, reasonable legal fees and expenses and the costs and
expenses of defending itself against any claim in connection with the exercise
or performance of any of its powers or duties hereunder (collectively, “Losses”), that may be imposed on or
incurred by any Indemnitee for or in respect of the Guarantee Trustee’s (i) execution
and delivery of this Guarantee Agreement, (ii) compliance or attempted
compliance with or reliance upon any instruction or other direction upon which
the Guarantee Trustee is authorized to rely pursuant to the terms of this
Guarantee Agreement and (iii) performance under this Guarantee Agreement,
except in each case to the extent that the Loss 


 


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resulted from the Guarantee Trustee’s or such
Indemnitee’s negligence, willful misconduct or bad faith. The provisions of
this Section shall survive the termination of this Guarantee Agreement and
the resignation or removal of the Guarantee Trustee for any reason. The
Guarantee Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee Agreement.


 


ARTICLE IV



GUARANTEE TRUSTEE


 


Section 4.1.               Guarantee Trustee; Eligibility.


 


(a)           There
shall at all times be a Guarantee Trustee that shall:


 


(i)            not be
an Affiliate of the Guarantor; and


 


(ii)           be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or
examining authority, then, for the purposes of this Section 4.1 and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.


 


(b)           If
at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a),
the Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2.


 


(c)           If
the Guarantee Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.


 


Section 4.2.               Appointment, Removal and Resignation of the Guarantee Trustee.


 


(a)           Subject
to Section 4.2(c), the Guarantee Trustee may be appointed or removed at
any time by the action of the Holders of a Majority in Liquidation Amount of
the Trust Preferred Securities delivered to the Guarantee Trustee and the
Guarantor (i) for cause or (ii) if a Note Event of Default (as
defined in the Trust Agreement) shall have occurred and be continuing at any
time.


 


(b)           Subject
to Section 4.2(c), the Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by giving written notice thereof to
the Holders and the Guarantor and by appointing a successor Guarantee Trustee.
The Guarantee Trustee shall appoint a successor by requesting from at least
three Persons meeting the requirements of Section 4.1(a) their
expenses and charges to serve as the Guarantee Trustee, and selecting the
Person who agrees to the lowest expenses and charges.


 


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(c)           The
Guarantee Trustee appointed hereunder shall hold office until a Successor
Guarantee Trustee shall have been appointed and shall have accepted such
appointment. No removal or resignation of a Guarantee Trustee shall be
effective until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and, in the case of any
resignation, the resigning Guarantee Trustee.


 


(d)           If
no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery
to the Holders and the Guarantor of a notice of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.


 


(e)           If
a resigning Guarantee Trustee shall fail to appoint a successor, or if a
Guarantee Trustee shall be removed or become incapable of acting as Guarantee
Trustee and a replacement shall not be appointed prior to such resignation or
removal, or if a vacancy shall occur in the office of Guarantee Trustee for any
cause, the Holders of the Preferred Securities, by the action of the Holders of
record of not less than 25% in aggregate Liquidation Amount (as defined in the
Trust Agreement) of the Preferred Securities then Outstanding (as defined in
the Trust Agreement) delivered to such Guarantee Trustee, may appoint a
Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee
shall have been so appointed by the Holders of the Preferred Securities and
accepted appointment, any Holder, on behalf of such Holder and all others
similarly situated, or any other Guarantee Trustee, may petition any court of
competent jurisdiction for the appointment of a successor Guarantee Trustee.


 


ARTICLE V



GUARANTEE


 


Section 5.1.               Guarantee.  The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (subject to the
limitations contained in the definition of that term and without duplication of
amounts theretofore paid by or on behalf of the Issuer Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer
Trust may have or assert, except the defense of payment. The Guarantor’s
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
Trust to pay such amounts to the Holders.


 


Section 5.2.               Waiver
of Notice and Demand.  The
Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
the Issuer Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.


 


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Section 5.3.               Obligations Not Affected.  The obligations, covenants, agreements and
duties of the Guarantor under this Guarantee Agreement shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:


 


(a)           the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer Trust of any express or implied agreement, covenant,
term or condition relating to the Preferred Securities to be performed or
observed by the Issuer Trust;


 


(b)           the
extension of time for the payment by the Issuer Trust of all or any portion of
the Distributions (other than an extension of time for payment of Distributions
that results from the extension of any interest payment period on the Notes as
provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities;


 


(c)           any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Holders pursuant to the terms of the Preferred Securities, or any action on
the part of the Issuer Trust granting indulgence or extension of any kind;


 


(d)           the
voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer Trust or any of the assets of the Issuer
Trust;


 


(e)           any
invalidity of, or defect or deficiency in, the Preferred Securities or any
agreement relating thereto (including, without limitation, this Guarantee
Agreement);


 


(f)            the
settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or


 


(g)           any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor (other than payment of the
underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.


 


There
shall be no obligation of the Holders to give notice to, or obtain the consent
of, the Guarantor with respect to the happening of any of the foregoing.


 


Section 5.4.               Rights of Holders.  The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in Liquidation Amount of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor 


 


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to enforce its rights under this Guarantee Agreement
without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer Trust or any other Person.


 


Section 5.5.               Guarantee
of Payment.  This Guarantee
Agreement creates a guarantee of payment and not of collection.


 


Section 5.6.               Subrogation.  The Guarantor shall be subrogated to all
rights (if any) of the Holders against the Issuer Trust in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement.  If any amount shall be paid to the Guarantor
in violation of the preceding sentence, the Guarantor agrees to hold such
amount in trust for the Holders and to pay over such amount to the Holders.


 


Section 5.7.               Independent Obligations.  The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer Trust
with respect to the Preferred Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.


 


ARTICLE VI



COVENANTS AND SUBORDINATION


 


Section 6.1.               Subordination.  The obligations of the Guarantor under this
Guarantee Agreement will constitute unsecured obligations of the Guarantor and
will rank subordinate and junior in right of payment and upon liquidation to
all Senior and Subordinated Debt (as defined in the Indenture) of the Guarantor
to the extent and in the manner set forth in the Indenture with respect to the
Notes, and the provisions of Article XIII of the Indenture will apply, mutatis mutandis, to the obligations of
the Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior and Subordinated Debt of the Guarantor.


 


Section 6.2.               Pari
Passu Guarantees.  The
obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (i) any similar guarantee agreements issued by the
Guarantor on behalf of the holders of preferred or capital securities issued by
any statutory trust the assets of which consist of debt securities that are pari passu to the Notes and the proceeds
thereof, (ii) the Indenture and the Securities (as defined therein) issued
thereunder, and (iii) any other security, guarantee or other agreement or
obligation that is expressly stated to rank pari
passu with the obligations of the Guarantor under this Guarantee
Agreement or with any obligation that ranks pari
passu with the obligations of the Guarantor under this Guarantee
Agreement.


 


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ARTICLE VII



TERMINATION


 


Section 7.1.               Termination.  This Guarantee Agreement shall terminate and
be of no further force and effect upon (i) full payment of the Redemption
Price (as defined in the Trust Agreement) of all Preferred Securities, (ii) the
distribution of Notes to the Holders in exchange for all of the Preferred
Securities or (iii) full payment of the amounts payable in accordance with
Article IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
is required to repay any sums paid with respect to Preferred Securities or this
Guarantee Agreement.


 


ARTICLE VIII


 


MISCELLANEOUS


 


Section 8.1.               Successors and Assigns.  All guarantees and agreements contained in
this Guarantee Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that is permitted
under Article VIII of the Indenture and pursuant to which the successor or
assignee agrees in writing to perform the Guarantor’s obligations hereunder,
the Guarantor shall not assign its obligations hereunder, and any purported
assignment other than in accordance with this provision shall be void.


 


Section 8.2.               Amendments.  Except with respect to any changes that do
not adversely affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not
less than a Majority in Liquidation Amount of the Preferred Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of the
Holders shall apply to the giving of such approval.


 


Section 8.3.               Notices. 
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:


 


(a)           if given to the
Guarantor, to the address or facsimile number set forth below or such other
address or facsimile number as the Guarantor may give notice to the Guarantee
Trustee and the Holders:


 


Capital Trust, Inc.

410 Park Avenue, 14th Floor

New York, NY  10022

Facsimile No.:  (212) 655-0044 

Attention: [Secretary]


 


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(b)           if given to the
Guarantee Trustee, at the address or facsimile number set forth below or such
other address or facsimile number as the Guarantee Trustee may give notice to
the Guarantor and the Holders:


 


The Bank of New York

101 Barclay Street

Floor 8 West

New York, New York 10286

Facsimile No.:  [        ]

Attention:  [Corporate Trust Department]


 


(c)           if
given to any Holder, at the address set forth on the books and records of the
Issuer Trust.


 


All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.


 


Section 8.4.               Benefit.  This Guarantee Agreement is solely for the
benefit of the Holders and is not separately transferable from the Preferred
Securities.


 


Section 8.5.               Governing Law.  THIS GUARANTEE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


Section 8.6.               Counterparts.  This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.


 


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IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.


 


	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK, as Guarantee

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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