SHALL
HAVE BEEN RENDERED AGAINST A SELLER, AND REMAINED UNDISCHARGED OR UNPAID FOR A
PERIOD NINETY (90) DAYS, DURING WHICH PERIOD EXECUTION OF SUCH JUDGMENT IS NOT
EFFECTIVELY STAYED;
(XI)
A SELLER OR BUYER SHALL BREACH OR FAIL TO PERFORM ANY OF THE
TERMS, COVENANTS, OBLIGATIONS OR CONDITIONS OF THIS AGREEMENT, AND SUCH BREACH
OR FAILURE TO PERFORM IS NOT REMEDIED WITHIN TWENTY (20) DAYS, PROVIDED THAT ANY
FAILURE TO COMPLY WITH SECTION 11(J) MUST BE CURED WITHIN 5 DAYS (UNLESS
OTHERWISE SPECIFICALLY REFERRED TO IN THIS DEFINITION OF "EVENT OF DEFAULT");
(XII)
A SELLER SHALL HAVE DEFAULTED, SUCH DEFAULT HAVING NOT PREVIOUSLY
OCCURRED, (BEYOND APPLICABLE NOTICE AND CURE PERIOD) OR FAILED TO PERFORM UNDER
ANY OTHER NOTE, INDENTURE, LOAN AGREEMENT, GUARANTY, SWAP AGREEMENT OR ANY OTHER
39
CONTRACT, AGREEMENT OR TRANSACTION TO WHICH IT IS A PARTY, WHICH DEFAULT
(A) INVOLVES THE FAILURE TO PAY AN OBLIGATION IN EXCESS OF $5,000,000, OR
(B) PERMITS THE ACCELERATION OF THE MATURITY OF OBLIGATIONS IN EXCESS OF
$5,000,000 BY ANY OTHER PARTY TO OR BENEFICIARY OF SUCH NOTE, INDENTURE, LOAN
AGREEMENT, GUARANTY, SWAP AGREEMENT OR OTHER CONTRACT AGREEMENT OR TRANSACTION,
OR A SELLER SHALL BREACH ANY COVENANT OR CONDITION, SHALL FAIL TO PERFORM,
ADMITS 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;
(XIII)
SELLER AT ANY TIME FAILS TO MAINTAIN A RATIO OF SELLER'S EBITDA
TO ITS INTEREST EXPENSE COVERAGE OF MORE THAN 1.2X;
(XIV)
THE DEBT TO NET WORTH RATIO OF SELLER AT ANY TIME EXCEEDS 30:1;
(XV)
THE RATIO OF MODIFIED DEBT TO NET WORTH EXCEEDS 10:1; OR
(XVI)
THE RATIO OF MODIFIED RECOURSE DEBT TO NET WORTH EXCEEDS 5:1.
All of the 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 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 Assets
shall become immediately due and