financial tests and covenants in this Agreement will be measured
based on the consolidated position of Capital Trust, Inc. and its Subsidiaries.
Any provision hereof to the contrary notwithstanding, an Event of Default on the
part of either Seller hereunder shall be deemed to be an Event of Default by
both Sellers.
14.
REMEDIES
If an Event of Default shall occur and be continuing with respect to either
Seller, the following rights and remedies shall be available to Buyer:
(I)
AT THE OPTION OF BUYER, EXERCISED BY WRITTEN NOTICE TO EITHER
SELLER (WHICH OPTION SHALL BE DEEMED TO HAVE BEEN EXERCISED, EVEN IF NO NOTICE
IS GIVEN, IMMEDIATELY UPON THE OCCURRENCE OF AN ACT OF INSOLVENCY WITH RESPECT
TO EITHER SELLER), THE REPURCHASE DATE FOR ALL TRANSACTIONS HEREUNDER (FOR BOTH
SELLERS) SHALL, IF IT HAS NOT ALREADY OCCURRED, BE DEEMED IMMEDIATELY TO OCCUR
(THE DATE ON
40
WHICH SUCH OPTION IS EXERCISED OR DEEMED TO HAVE BEEN EXERCISED BEING REFERRED
TO HEREINAFTER AS THE "ACCELERATED REPURCHASE DATE").
(II)
IF BUYER EXERCISES OR IS DEEMED TO HAVE EXERCISED THE OPTION
REFERRED TO IN SECTION 14(I) OF THIS AGREEMENT:
(A)
Seller's obligations hereunder to repurchase
all Purchased Loans shall become immediately due and payable on and as of the
Accelerated Repurchase Date; and
(B)
to the extent permitted by applicable law,
the Pricing Rate with respect to each Transaction (determined as of the
Accelerated Repurchase Date) shall be the Pricing Rate prior to the date of the
Event of Default plus 200 basis points; and
(C)
the Custodian shall, upon the request of
Buyer, deliver to Buyer all instruments, certificates and other documents then
held by the Custodian relating to the Purchased Loans,
(III)
UNLESS SELLER HAS TENDERED THE REPURCHASE PRICE, UPON THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT WHICH HAS NOT
PREVIOUSLY OCCURRED WITH RESPECT TO SELLER (WITH RESPECT TO WHICH BUYER HAS NOT
AGREED TO FORBEARANCE OR ACCEPTED A WORKOUT ARRANGEMENT), BUYER MAY (A)
IMMEDIATELY SELL, AT A PUBLIC OR PRIVATE SALE AT SUCH PRICE OR PRICES AS BUYER
MAY DEEM SATISFACTORY ANY OR ALL OF THE PURCHASED LOANS OR (B) IN ITS SOLE
DISCRETION ELECT, IN LIEU OF SELLING ALL OR A PORTION OF SUCH PURCHASED LOANS,
TO GIVE SELLER CREDIT FOR SUCH PURCHASED LOANS IN AN AMOUNT EQUAL TO THE MARKET
VALUE OF SUCH PURCHASED LOANS AGAINST THE AGGREGATE UNPAID REPURCHASE PRICE FOR
SUCH PURCHASED LOANS AND ANY OTHER AMOUNTS OWING BY SELLER UNDER THE TRANSACTION
DOCUMENTS. NOTWITHSTANDING THE DEFINITION OF "MARKET VALUE" SET FORTH IN SECTION
1 HEREIN, FOR PURPOSES OF THIS SECTION 14(III), AS TO ANY PURCHASED LOAN THAT
HAS BEEN DELINQUENT FOR AT LEAST SIXTY (60) DAYS, BUYER SHALL DETERMINE A MARKET
VALUE FOR SUCH PURCHASED LOAN IN GOOD FAITH. THE PROCEEDS OF ANY DISPOSITION OF
PURCHASED LOANS EFFECTED PURSUANT TO THIS SECTION 14(III) SHALL BE APPLIED, (W)
FIRST, TO THE COSTS AND EXPENSES, INCLUDING LEGAL EXPENSES, INCURRED BY BUYER IN
CONNECTION WITH SELLER'S DEFAULT; (X) SECOND, TO THE REPURCHASE