SETTLEMENT AGREEMENT
Exhibit
10
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SETTLEMENT
AGREEMENT, dated this 23rd day of April, 2008 (“Agreement”), by and among Arbor
Realty Trust, Inc., a Maryland corporation (“Arbor”) and Xxxx Xxxxxxx
(the foregoing entity and individual being collectively referred to herein
as the “Arbor Group”), and
CBRE Realty Finance, Inc., a Maryland corporation (the “Company”).
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WHEREAS,
the Arbor Group has made certain filings on Schedule 13D (all such
filings on Schedule 13D made by the Arbor Group with respect to the
Company, the “Arbor Schedule
13D”) with the Securities and Exchange Commission (the “SEC”) disclosing, among
other things, that the Arbor Group beneficially owns 2,939,465 shares of
common stock, par value $0.01 per share, of the Company;
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WHEREAS,
Arbor has submitted to the Company notice (the “Notice”) of its intention
to (i) nominate a slate of nominees for election to the Company’s
Board of Directors (the “Board”) at the Company’s
2008 annual meeting of stockholders (the “2008 Annual Meeting”), and
(ii) solicit proxies for the election of its nominees at the 2008
Annual Meeting (the “Proxy
Solicitation”); and
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WHEREAS,
the Company and the Arbor Group have determined that the interests of the
Company and its stockholders would be best served by (i) avoiding the
substantial expense, disruption and adverse publicity that would result
from the Proxy Solicitation and (ii) the other agreements, covenants,
rights and benefits as provided herein.
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NOW,
THEREFORE, in consideration of the foregoing premises and the respective
representations, warranties, covenants, agreements and conditions
hereinafter set forth, and, intending to be legally bound hereby, the
parties hereby agree as follows:
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1. 2008 Annual Meeting; Related
Matters.
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(a) The
Arbor Group hereby irrevocably withdraws the Notice and its nomination of
each of Xxxxx X. Xxxxx, Xxxx Xx Xxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx,
Xxxxxx X. Xxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx (and any
substitutions for such individuals) for election to the Board at the
2008 Annual Meeting and confirms that it waives its right to nominate any
directors, to make any other proposal or to present any other item of
business at the 2008 Annual Meeting. The Arbor Group will
promptly file an amendment to the Arbor Schedule 13D, reporting the
contents of this Agreement, amending applicable items to conform to its
obligations hereunder and appending this Agreement as an exhibit
thereto.
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(b) The
members of the Arbor Group, shall vote, and shall use their commercially
reasonable efforts to cause their respective Affiliates and Associates (as
herein defined) to vote, all Voting Securities (as herein
defined) which they are entitled to vote at the 2008 Annual Meeting
in favor of the election of each of the Company’s nominees to the
Board.
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2. Arbor’s Participation in any Sale
Process. The Company will not exclude Arbor from the
opportunity to participate in any sale process that may be initiated by
the Board during the 12-month period following the date of this Agreement
that seeks proposals for the acquisition of all or substantially all of
the common stock or assets of the Company; provided, that (i) the
Board may choose not to initiate any sale process and, if it does commence
a sale process, it may discontinue the sale process for any reason at any
time, and (ii) Arbor shall be required to comply with the terms and
conditions generally applicable to the other participants in any sale
process, including, but not limited to, the requirement that participants
of any such process enter into a customary form of confidentiality
agreement.
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3. Standstill.
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(a) Each
member of the Arbor Group severally, and not jointly, agrees that, for a
period of 12 months from the date of this Agreement, without the prior
written consent of the Board specifically expressed in a written
resolution adopted by a majority vote of the entire Board, he or it will
not, and will cause each of his or its officers, agents and other Persons,
including any Affiliates or Associates identified in the Arbor
Schedule 13D as members of the "Arbor Group" as therein defined, acting on
his or its behalf not to:
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(i) engage,
or in any way participate, directly or indirectly, in any “solicitation”
(as such term is defined in Rule 14a-1(l) promulgated by the SEC
under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of proxies or consents (whether or not relating to the
election or removal of directors); advise, encourage or influence any
Person (as herein defined) with respect to the voting of any Voting
Securities with respect to the 2008 Annual Meeting or any other meeting of
the Company’s stockholders that occurs prior to the termination of this
Agreement in a manner that is inconsistent with the terms of this
Agreement; nominate or propose any person for election to the Board; or
initiate, propose or otherwise “solicit” (as such term is defined in
Rule 14a-1(l) promulgated by the SEC under the Exchange
Act) stockholders of the Company for the approval of stockholder
proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 or
exempt solicitations pursuant to Rule 14a-2(b)(1) or
Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or
encourage any other Person to initiate any such stockholder proposal; or
otherwise communicate with the Company’s stockholders or others pursuant
to Rule 14a-1(1)(2)(iv) under the Exchange Act;
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(ii) other
than in connection with Section 2 hereof, seek or propose, or make any
statement with respect to, any merger, consolidation, business
combination, tender or exchange offer, sale or purchase of assets, sale or
purchase of securities (except that the Arbor Group may seek or propose a
sale or purchase of the shares of the Company beneficially owned by the
Arbor Group as of the date hereof), dissolution, liquidation,
restructuring, recapitalization or similar transactions of or involving
the Company or any of its Affiliates;
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(iii) form,
join or in any way participate in any “group” (within the meaning of
Section 13(d)(3) of the Exchange Act) with respect to any
Voting Securities, other than a “group” that includes all or some lesser
number of the Persons identified as “Reporting Persons” in the Arbor
Schedule 13D, but does not include any other members who are not currently
identified as Reporting Persons;
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(iv) act,
alone or in concert with others, to control or seek to control, or
influence or seek to influence, the management, Board or policies of the
Company;
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(v) other
than as previously disclosed in the Arbor Schedule 13D, deposit any Voting
Securities in any voting trust or subject any Voting Securities to any
arrangement or agreement with respect to the voting of any Voting
Securities, except as expressly set forth in this Agreement;
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(vi) knowingly
enter into any arrangements, understanding or agreements (whether written
or oral) with, or advise, finance, assist or encourage, any other
Person in connection with any of the foregoing, or make any investment in
or enter into any arrangement with, any other Person that engages, or
offers or proposes to engage, in any of the foregoing;
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(vii) discuss
or communicate any confidential information with respect to the Company
and its business, including but not limited to information related to the
evaluation of any strategic alternatives under consideration by the Board;
and
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(viii) take
or cause or induce others to take any action inconsistent with any of the
foregoing.
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(b) The
Arbor Group hereby waives any right (whether by statute or
agreement) to inspect records and lists of Company stockholders
(including any list of non-objecting beneficial owners) in connection
with the 2008 Annual Meeting, including the rights Arbor has pursuant to
that certain agreement dated March 12, 2008, between Arbor and the
Company, that requires the Company to produce or provide access to certain
stockholder records.
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4.
Mutual
Release.
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(a) The
Arbor Group, for themselves and their respective members, officers,
directors, assigns, agents, and successors, past and present (each
individually, an “Arbor Group
Releasing Party”) does hereby expressly, absolutely and
forever release and discharge the Company and each officer, director,
stockholder, agent, affiliate, employee, attorney, assigns, predecessor,
and successor, past and present, of the Company (each individually, a
“Company Released Party”)
from, and forever fully releases and discharges each Company Released
Party of, any and all rights, claims, warranties, demands, debts,
obligations, liabilities, costs, attorneys’ fees, expenses, suits, losses,
and causes of action (“Claims”) of any kind or nature
whatsoever (including those arising under contract, statute or common
law), whether known or unknown, contingent or absolute, suspected or
unsuspected, arising in respect of or in connection with the Proxy
Solicitation, which any Arbor Group Releasing Party ever had or owned
arising at any time prior to the date of this Agreement (including the
future effects of such occurrences, conditions, acts or omissions); provided, however, that the foregoing
release does not apply to (i) any Claim relating to the performance
of obligations under this Agreement or for breach of or to enforce this
Agreement and (ii) any Claims that cannot be waived by law (with
clauses (i) and (ii) together, the “Arbor Excluded
Claims”). The Claims released pursuant to this Section
4(a) are referred to herein as “Arbor Group
Claims.” The Arbor Group, on behalf of itself and the
Arbor Group Releasing Parties, hereby irrevocably covenants to refrain
from asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Company Released
Party based upon any Arbor Group Claim.
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(b) The
Company, for itself and for its officers, directors, assigns, agents, and
successors, past and present (each individually, a “Company Releasing
Party”) does hereby expressly, absolutely and forever release
and discharge the Arbor Group and each of their respective officers,
directors, stockholders, agents, affiliates, employees, attorneys,
assigns, predecessors, and successors, past and present, of each member of
the Arbor Group (each individually, an “Arbor Group Released Party”)
from, and forever fully releases and discharges each Arbor Group Released
Party of, any and all Claims of any kind or nature whatsoever (including
those arising under contract, statute or common law), whether known or
unknown, contingent or absolute, suspected or unsuspected, arising in
respect of or in connection with the Proxy Solicitation, any Schedule 13D
or proxy filings made prior to the date hereof or in respect of or in
connection with the nomination and election of directors at the 2008
Annual Meeting or the other proposals contained in the Notice, which any
Company Releasing Party ever had or owned arising at any time prior to the
date of this Agreement (including the future effects of such occurrences,
conditions, acts or omissions); provided, however, that the foregoing
release does not apply to (i) any Claim relating to the performance
of obligations under this Agreement or for breach of or to enforce this
Agreement and (ii) any Claims that cannot be waived by law (with
clauses (i) and (ii) together, the
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| “Company Excluded Claims”). The Claims released pursuant to this Section 4(b) are referred to herein as “Company Claims.” The Company, on behalf of itself and the Company Releasing Parties, hereby irrevocably covenants to refrain from asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind against any Arbor Group Released Party or any member of the Arbor Group based upon any Company Claim. | |
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(c) The
parties hereto hereby acknowledge and agree that the Arbor Group Released
Parties and the Company Released Parties are intended third party
beneficiaries of the provisions of this Section 4 and may take any and all
action to enforce the obligations and agreements of the releasing parties
set forth herein.
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5. Representations and Warranties of the
Arbor Group. Each of the members of the Arbor Group
severally, and not jointly, represents and warrants as
follows:
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(a) Each
member of the Arbor Group has the power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and to consummate
the transactions contemplated hereby.
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(b) This
Agreement has been duly and validly authorized, executed, and delivered by
each member of the Arbor Group, and constitutes a valid and binding
obligation and agreement of each such member, and is enforceable against
each such member in accordance with its terms.
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(c) The
members of the Arbor Group, together with their respective Affiliates and
Associates identified in the Arbor Schedule 13D as members of the "Arbor
Group" as therein defined, beneficially own, directly or indirectly, as of
the date hereof, an aggregate of 2,939,465 shares of common stock of the
Company as set forth in Schedule A attached hereto
which constitutes all of the Voting Securities of the Company beneficially
owned by the members of the Arbor Group and their respective Affiliates
and Associates identified in the Arbor Schedule 13D as members of the
"Arbor Group" as therein defined.
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(d) The
execution, delivery and performance of this Agreement by each member of
the Arbor Group does not and will not violate or conflict with
(i) any law, rule, regulation, order, judgment or decree applicable
to it, or (ii) result in any breach or violation of or constitute a
default (or an event which with notice or lapse of time or both could
become a default) under or pursuant to, or result in the loss of a
material benefit under, or give any right of termination, amendment,
acceleration or cancellation of, any organizational document, agreement,
contract, commitment, understanding or arrangement to which such member is
a party or by which it is bound.
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(e) No
consent, approval, authorization, license or clearance of, or filing or
registration with, or notification to, any court, legislative, executive
or regulatory authority or agency is required in order to permit such
member to perform such member’s obligations under this Agreement, except
for such as have been obtained.
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6. Representations and Warranties of the
Company. The Company hereby represents and warrants as
follows:
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(a) The
Company has the corporate power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby.
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(b) This
Agreement has been duly and validly authorized, executed and delivered by
the Company, and constitutes a valid and binding obligation and agreement
of the Company, and is enforceable against the Company in accordance with
its terms.
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(c) The
execution, delivery and performance of this Agreement by the Company does
not and will not violate or conflict with (i) any law, rule,
regulation, order, judgment or decree applicable to it, or
(ii) result in any breach or violation of or constitute a default (or
an event which with notice or lapse of time or both could become a
default) under or pursuant to, or result in the loss of a material
benefit under, or give any right of termination, amendment, acceleration
or cancellation of, any organizational document, agreement, contract,
commitment, understanding or arrangement to which the Company is a party
or by which it is bound.
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(d) No
consent, approval, authorization, license or clearance of, or filing or
registration with, or notification to, any court, legislative, executive
or regulatory authority or agency is required in order to permit the
Company to perform its obligations under this Agreement, except for such
as have been obtained.
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7.
Non-Disparagement.
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(a) The
Company (on its own behalf and on behalf of its current directors, current
executive officers, and representatives (insofar as they are acting for or
on behalf of the Company), while they are serving as such, and on behalf
of its Affiliates which it controls (each individually, a “Company Party”)) agrees
that, for a period of 12 months from the date of this Agreement, the
Company and the Company Parties shall not directly or indirectly,
individually or in concert with others, engage in any conduct or solicit,
make, or cause to be made, any statement, observation or opinion, or
communicate any information (whether oral or written) that is
calculated to or reasonably could be expected to have the effect of
(i) undermining, impugning, disparaging or otherwise in any way
reflecting adversely or detrimentally upon any member of the Arbor Group
or its Affiliates or (ii) accusing or implying that any member of the
Arbor Group or its Affiliates engaged in any wrongful, unlawful or
improper conduct; except, in each case, with respect to any Company
Excluded Claim. The foregoing shall not apply to
(x) non−public oral statements made by the Company or its executive
officers or directors directly to any member of the Arbor Group or to any
of their respective directors, officers, members, employees or
representatives, (y) any compelled testimony, either by legal
process, subpoena or otherwise and (z) any response to any request
for information from any governmental authority having jurisdiction over
the Company; provided,
however, in the event that
any Company Party is requested pursuant to, or required by, applicable
law, regulation or legal process to testify or otherwise respond to a
request for information from any governmental authority, the Company shall
notify each member of the Arbor Group promptly so that they may seek a
protective order or other appropriate remedy or, in their sole discretion,
waive compliance with the terms of this Section 7(a). In the event that no
such protective order or other remedy is obtained, or each member of the
Arbor Group waives compliance with the terms of this Section 7(a), the
Company Party will furnish only such information which he or she has been
advised in writing by counsel is legally required and will exercise
reasonable efforts to obtain reliable assurance that such information will
be accorded confidential treatment.
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(b) Each
of the members of the Arbor Group (on its own behalf and on behalf of its
respective current directors, executive officers, members, partners,
managers and representatives (insofar as they are acting for or on behalf
of Arbor), while they are serving as such, and on behalf of their
Affiliates which any member of the Arbor Group controls (each
individually, an “Arbor
Party”)) agrees that, for a period of 12 months from the date
of this Agreement, each Arbor Party and the Arbor Parties shall not
directly or indirectly, individually or in concert with others, engage in
any conduct or solicit, make, or cause to be made, any statement,
observation or opinion, or communicate any information (whether oral or
written) that is calculated to or reasonably could be expected to
have the effect of (i) undermining, impugning, disparaging or
otherwise in any way reflecting adversely or detrimentally upon the
Company, its Affiliates and their respective directors and officers (the
“Company
Group”) or
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(ii) accusing
or implying that the Company or any member of the Company Group engaged in
any wrongful, unlawful or improper conduct; except, in each case, with
respect to any Arbor Excluded Claim. The foregoing shall not
apply to (x) non−public oral statements made by any member of the
Arbor Group directly to the Company or to its directors, officers,
employees or representatives, (y) any compelled testimony, either by
legal process, subpoena or otherwise and (z) any response to any
request for information from any governmental authority having
jurisdiction over the Arbor Parties; provided, however, in the event that any
Arbor Party is requested pursuant to, or required by, applicable law,
regulation or legal process to testify or otherwise respond to a request
for information from any governmental authority, the applicable Arbor
Party shall notify the Company promptly so that it may seek a protective
order or other appropriate remedy or, in their sole discretion, waive
compliance with the terms of this Section 7(b). In the event that no such
protective order or other remedy is obtained, or the Company waives
compliance with the terms of this Section 7(b), the applicable Arbor Party
will furnish only such information which they have been advised in writing
by counsel is legally required and will exercise reasonable efforts to
obtain reliable assurance that such information will be accorded
confidential treatment.
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8. Termination.
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(a) Unless
terminated earlier pursuant to Section 8(b), this Agreement shall remain
in full force and effect and shall be fully binding on the parties hereto
in accordance with the provisions hereof until the first anniversary of
the date of this Agreement.
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(b) The
provisions of this Agreement may be terminated by the non−breaching party
in the event of a final adjudication of a material breach by any party of
any of the terms of this Agreement (except that a member of the Arbor
Group may not terminate this Agreement based on a breach of this Agreement
by the other member of the Arbor Group). Any termination of
this Agreement as provided herein will be without prejudice to the rights
of any party arising out of the breach by any other party of any provision
of this Agreement.
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9. Specific
Performance. Each of the members of the Arbor Group, on
the one hand, and the Company, on the other hand, acknowledges and agrees
that irreparable injury to the other party hereto would occur in the event
any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached and that such injury
would not be adequately compensable in damages. It is
accordingly agreed that the members of the Arbor Group, on the one hand,
and the Company, on the other hand (the “Moving Party”), shall each be
entitled to specific enforcement of, and injunctive relief to prevent any
violation of, the terms hereof and the other party hereto will not take
action, directly or indirectly, in opposition to the Moving Party seeking
such relief on the grounds that any other remedy or relief is available at
law or in equity. However, the remedy set forth in this Section
9 shall not be deemed to be the excusive remedy for a breach of this
Agreement, but shall be in addition to all other remedies available at law
or in equity. The Company and each member of the Arbor Group
hereby agree to waive any requirements relating to the securing or posting
of any bond in connection with seeking any remedy hereunder.
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10. Press Release.
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(a) As
soon as practicable following the execution and delivery of this
Agreement, the Company and the Arbor Group shall issue the joint press
release attached hereto as Exhibit A (the “Press Release”).
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(b) None
of the parties hereto will, for a period of 12 months from the date of
this Agreement, make any public statements (including in any filing with
the SEC or any other regulatory or governmental agency, including any
stock exchange) that are inconsistent with, or otherwise contrary to,
the statements in the Press Release issued pursuant to this
Section 10, unless otherwise required by law.
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(c) Nothing
shall preclude or prevent any of the parties hereto from making public
statements that (A) are neither contrary to nor inconsistent with the
statements in the Press Release and (B) do not violate Sections 3, 7
and 10 hereof, in each case unless otherwise required by law; provided, however, that none of the
members of the Arbor Group, including their respective Affiliates or
Associates that they control, shall, for a period of 12 months from the
date of this Agreement, issue or cause the publication of any press
release or other public announcement with respect to this Agreement, the
Company, its management or the Board or the Company’s business without
first providing a copy of such information to the Board at least 48 hours
prior to public distribution and using commercially reasonable efforts to
consult with the Board prior to issuing such press release or making such
public statement; provided, further, that the Arbor Group,
without providing such notice to, or engaging in such consultation with,
the Board, may (i) file a new Schedule 13D or an amendment or
amendments to the Arbor Schedule 13D in accordance with
Section 1(a) of this Agreement or as otherwise required by law,
(ii) make any other filings as required by law, and (iii) make
any announcement or communication that is consistent with its obligations
pursuant to Sections 3, 7 and 10 hereof, including, without
limitation, any public announcements or positions as it deems appropriate
to the extent the Company or a stockholder of the Company makes a public
announcement regarding an extraordinary transaction of any kind or nature
involving the Company.
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11.
No Waiver. Any
right or obligation under this Agreement may be waived if, and only if,
such waiver is in writing and signed by the party against whom the waiver
is to be effective. Any waiver by either the Arbor
Representative (as herein defined) or the Company of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of either the Arbor
Representative or the Company to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
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12.
Definitions. As
used in this Agreement:
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“2008 Annual Meeting” has the
meaning set forth in the recitals.
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“Affiliates” and “Associates” shall have the
meanings set forth in Rule 12b-2 under the Exchange Act and shall
include Persons who become Affiliates or Associates of any Person
subsequent to the date hereof.
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“Agreement” has the meaning set
forth in the preamble.
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“Arbor” has the meaning set forth
in the preamble.
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“Arbor Excluded Claims” has the
meaning set forth in Section 4(a).
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“Arbor Group” has the meaning set
forth in the preamble.
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“Arbor Group Claims” has the
meaning set forth in Section 4(a).
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“Arbor Group Released Party” has
the meaning set forth in Section 4(b).
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“Arbor Group Releasing Party” has
the meaning set forth in Section 4(a).
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“Arbor Party” has the meaning set
forth in Section 7(b).
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“Arbor Representative” has the
meaning set forth in Section 21.
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“Arbor Schedule 13D” has the meaning set
forth in the recitals.
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“Board” has the meaning set forth
in the recitals.
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“Claims” has the meaning set
forth in Section 4(a).
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“Company” has the meaning set
forth in the preamble.
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“Company Claims” has the meaning
set forth in Section 4(b).
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“Company Excluded Claims” has the
meaning set forth in Section 4(b).
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“Company Group” has the meaning
set forth in Section 7(b).
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“Company Party” has the meaning
set forth in Section 7(a).
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“Company Released Party” has the
meaning set forth in Section 4(a).
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“Company Releasing Party” has the
meaning set forth in Section 4(b).
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“Exchange Act” has the meaning
set forth in Section 3(a)(i).
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“Moving Party” has the meaning
set forth in Section 9.
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“Notice” has the meaning set
forth in the recitals.
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“Person” shall mean any
individual, partnership, corporation, group, syndicate, trust, government
or agency, or any other organization, entity or enterprise.
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“Press Release” has the meaning
set forth in Section 10(a).
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“Proxy Solicitation” has the
meaning set forth in the recitals.
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“SEC” has the meaning set forth
in the recitals.
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“Voting Securities” shall mean
any securities of the Company entitled to vote in the election of
directors of the Company, or securities convertible into or exercisable or
exchangeable for such securities, whether or not subject to the passage of
time or other contingencies.
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13. Successors and
Assigns. Neither this Agreement nor any right, interest
or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other parties hereto and any attempt to do so
will be void. Subject to the preceding sentence, this Agreement
is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns.
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14. Entire Agreement;
Amendments. This Agreement contains the entire
understanding of the parties hereto with respect to its subject
matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings other than those
expressly set forth herein. This Agreement may be amended or
modified only by a written instrument duly executed by the parties hereto
or their respective successors or assigns.
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15. Interpretation and
Headings. The definitions in Section 12 will apply
equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun will include the
corresponding masculine, feminine and neuter forms. The word
“include” will be deemed to be followed by the phrase “without
limitation.” All references herein to Sections, Exhibits and
Schedules will be deemed to be references to Sections of, and Exhibits and
Schedules to, this Agreement unless the context will otherwise
require. The section headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. Unless the context
will otherwise require or provide, any reference to any agreement or other
instrument or statute or regulation is to such agreement, instrument,
statute or regulation as amended and supplemented from time to time (and,
in the case of a statute or regulation, to any successor
provision).
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16. Notices. All notices,
demands and other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall
be deemed to have been given (a) when delivered by hand (with written
confirmation of receipt), (b) upon sending if sent by facsimile, with
electronic confirmation of sending; provided, however, that a copy is sent on
the same day by registered mail, return receipt requested, in each case to
the appropriate mailing addresses set forth below (or to such other
mailing addresses as a party may designate by notice to the other parties
in accordance with this provision), (c) upon receipt, after being
sent by a nationally recognized overnight carrier to the addresses set
forth below (or to such other mailing addresses as a party may designate
by notice to the other parties in accordance with this
Section 16) or (d) when actually delivered if sent by any
other method that results in delivery (with written confirmation of
receipt):
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If
to the Company:
CBRE
Realty Finance, Inc.
000
Xxxxxx Xxxxxx
City
Place 1, 31st floor
Attn: Xxxxx
X. Xxx, Esq., General Counsel
with
a copy to:
Xxxxxxxx
Chance US LLP
00
Xxxx 00xx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxxx
X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Email: xxxxx.xxxxxxxxx@xxxxxxxxxxxxxx.xxx
If
to the Arbor Group:
Arbor
Realty Trust, Inc.
000
Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxx, Esq., General Counsel
-9-
with
a copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxx
X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Email: xxxx.xxxxx@xxxxxxx.xxx
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or
to such other mailing address or facsimile address as the Person to whom
notice is given may have previously furnished to the others in writing in
the manner set forth above.
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17. Governing Law;
Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New
York. Each party hereto agrees, on behalf of itself and its
Affiliates and Associates that it controls, that any actions, suits or
proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby will be brought solely and exclusively in
the courts of the State of New York and/or the courts of the United States
of America located in the State of New York (and the parties agree not to
commence any action, suit or proceeding relating thereto except in such
courts), and further agrees that service of any process, summons, notice
or document by U.S. registered mail to the respective addresses set forth
in Section 16 will be effective service of process for any such
action, suit or proceeding brought against any party in any such
court. Each party, on behalf of itself and its Affiliates and
Associates that it controls, irrevocably and unconditionally waives trial
by jury and any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contemplated
hereby, in the courts of the State of New York or the United States of
America located in the State of New York, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court
has been brought in any inconvenient forum. Any judgment
rendered by a New York court may be enforced in any other jurisdiction in
the United States. Nothing in this Section 17 shall
prevent any of the parties hereto from enforcing its rights under this
Agreement or shall impose any limitation on any of the parties or their
respective past, present or future general partners, directors, officers,
or employees in defending any claim, action, cause of action, suit,
administrative action or proceeding of any kind, including, without
limitation, any federal, state or other governmental proceeding of any
kind, against any of them. The rights and remedies provided in
this Agreement are cumulative and do not exclude any rights or remedies
provided by law.
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18. Counterparts. This
Agreement may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
Agreement.
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19. No Presumption Against
Draftsperson. Each of the undersigned hereby
acknowledges that the undersigned fully negotiated the terms of this
Agreement, that each such party had an equal opportunity to influence the
drafting of the language contained in this Agreement and that there shall
be no presumption against any such party on the ground that such party was
responsible for preparing this Agreement or any part hereof. All prior
working drafts of this Agreement, and any notes and communications
prepared in connection therewith, shall be disregarded for purposes of
interpreting the meaning of any provision contained herein.
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20. Survival. Except as otherwise
provided herein, all representations, warranties and agreements made by
the parties in this Agreement or pursuant hereto shall survive the date
hereof. Except as expressly set forth in this Agreement, no
party has made any representation, warranty, covenant or
agreement.
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21. Arbor
Representative. Each member of the Arbor Group hereby
irrevocably appoints Xxxx Xxxxxxx as such member’s attorney-in-fact and
representative (the “Arbor Representative”), in such member’s place and
stead, to do any and all things and to execute any and all documents and
give and receive any and all notices or instructions in connection with
this Agreement and the transactions contemplated hereby. The
Company shall be entitled to rely, as being binding on each member of the
Arbor Group, upon any action taken by the Arbor Representative or upon any
document, notice, instruction or other writing given or executed by the
Arbor Representative.
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22. Severability. If any
term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that the parties would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid,
void or unenforceable. In addition, the parties agree to use
all commercially reasonable efforts to agree upon and substitute a valid
and enforceable term, provision, covenant or restriction for any of such
that is held invalid, void or enforceable by a court of competent
jurisdiction.
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23. Litigation
Expenses. In the event of any litigation among any of
the parties hereto concerning this Agreement or the transactions
contemplated hereby, the prevailing party in such litigation shall be
entitled to reimbursement from the party opposing such prevailing party of
all reasonable attorneys’ fees and costs incurred in connection
therewith.
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24. Third Party
Beneficiaries. Except for the provisions of Section 4
which are intended for the benefit of, and to be enforceable by, the
Persons described therein, nothing contained in this Agreement shall
create any rights in, or be deemed to have been executed for the benefit
of, any Person or entity that is not a party hereto or a successor or
permitted assign of such a party.
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25. Further Actions. Upon
and subject to the terms of this Agreement, each of the parties hereto
agrees to use its or his commercially reasonable efforts to cause to be
taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other party in doing, all things necessary, proper or
advisable to consummate or make effective, in the most expeditious manner
practicable, the matters contemplated by this Agreement.
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26. Change in
Control. Except as contemplated herein, no change in the
control, ownership, operations or assets of the Company or Arbor or any of
their respective Affiliates shall have any effect whatsoever on the
obligations of the parties to this Agreement.
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27. Facsimile/PDF Signatures. This
Agreement may be executed and delivered by facsimile or by email in
portable document format (pdf or similar format) and upon delivery of
the signature by such method will be deemed to have the same effect as if
the original signature had been delivered to the other
parties.
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28. No Admission. Nothing
contained herein shall constitute an admission by any party hereto of
liability or wrongdoing. The obligations of the members of the
Arbor Group hereunder shall be several and not joint.
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[Signature
Page Follows]
-11-
IN
WITNESS WHEREOF, and intending to be legally bound hereby, each of the
undersigned parties has executed or caused this Agreement to be executed on the
date first above written.
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CBRE
REALTY FINANCE, INC.
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||||
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By:
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/s/ Xxxxxxx X. Xxxxxx | |||
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Name:
Xxxxxxx
X. Xxxxxx
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Title:
President
and Chief Executive Officer
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ARBOR
REALTY TRUST, INC.
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||||
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By:
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/s/ Xxxx Xxxxxxx | |||
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Name:
Xxxx
Xxxxxxx
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|||
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Title:
President
and Chief Executive Officer
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|||
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XXXX
XXXXXXX
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||||
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By:
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/s/ Xxxx Xxxxxxx | |||
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Name:
Xxxx
Xxxxxxx
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Schedule
A
As
of April 23, 2008, the members of the Arbor Group, together with their
respective Affiliates and Associates identified in the Arbor Schedule 13D as
members of the “Arbor Group” as therein defined, beneficially owned an aggregate
of 2,939,465 shares of common stock of the Company.
Exhibit
A
NOT FOR IMMEDIATE
RELEASE
FOR
FURTHER INFORMATION
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AT
CBRE REALTY FINANCE:
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AT
ARBOR REALTY TRUST:
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Xxxxxxx
Xxxxxxxxx
Chief
Financial Officer
(000)
000-0000
xxxxxxx.xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
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Xxxx
Xxxxxx (Investors)
Chief
Financial Officer
(000)
000-0000
xxxxxxx@xxxxx.xxx
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Xxxxxx
Xxxxxx (Media)
SVP
of Marketing
(000)
000-0000
xxxxxxx@xxxxx.xxx
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Xxxxxxxxx
Xxxxxxxxxx
(Investors)
The
Xxxx Group
(000)
000-0000
xxxxxxxxxxx@xxxxxxxxxxxx.xxx
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||
APRIL
23, 2008
CBRE
REALTY FINANCE, INC. AND
ARBOR
REALTY TRUST, INC. REACH AGREEMENT
Arbor
Withdraws Director Slate
Hartford, CT and Uniondale, N.Y.,
April 23, 2008 – CBRE
Realty Finance, Inc. (NYSE: CBF) (the “Company”) and Arbor Realty Trust, Inc. (NYSE:
ABR) today announced that they have reached an agreement relating to the
CBRE Realty Finance 2008 Annual Meeting of Stockholders.
Under
the terms of the agreement, Arbor has withdrawn its nomination of a slate of
directors for election at the CBRE Realty Finance 2008 Annual Meeting of
Stockholders and will not initiate any proxy solicitation. Arbor has
also agreed to vote all shares which it is entitled to vote in support of all of
the CBRE Realty Finance Board’s director nominees at the 2008 Annual
Meeting. Arbor also has agreed to abide by certain standstill
provisions for the next 12 months.
CBRE
Realty Finance has agreed that, if its Board during the next 12 months begins a
process of seeking proposals for the acquisition of all or substantially all of
the common stock or assets of the Company, Arbor will be afforded the
opportunity to participate in such a process. CBRE Realty Finance is
not required to run any process of this type, and there is no assurance that it
will.
Xxxxxxx
X. Xxxxxx, President and Chief Executive Officer of CBRE Realty Finance, said,
“We are pleased to have reached this agreement with Arbor and believe this
outcome is in the best interests of our Company and all of our
stockholders. Our Board and management team remain focused on
improving the Company’s operations and financial
performance. Furthermore, our Board continues to actively work with
our financial advisor to identify and evaluate a range of strategic and
operational initiatives to enhance stockholder value.”
A-1
“We are pleased that
Arbor and CBRE Realty Finance have resolved our differences and that there will
be no contested election at the CBRE Realty Finance stockholder meeting this
year,” said Xxxx Xxxxxxx, Chairman, President and Chief Executive Officer of
Arbor. “It was always Arbor’s objective to sit down with CBRE Realty
Finance and try to work out a mutual deal and Arbor believes this puts it in a
good position to accomplish this, avoiding a lengthy, adversarial and expensive
proxy contest. This also allows the management teams of each company
to concentrate on their businesses and focus on increasing stockholder
value.”
The
Company plans to file with the SEC and mail to its stockholders a definitive
proxy statement (the "2008 Proxy Statement") relating to its 2008 annual meeting
of stockholders, which has not yet been scheduled. The Company, its
directors and certain of its officers may be deemed, under the SEC's rules, to
be participants in a solicitation of proxies from its stockholders in connection
with the 2008 annual meeting of stockholders. Information regarding those
directors and officers and their respective interests is set forth in the
Schedule 14A filed by the Company with the SEC on February 4, 2008. Investors
should read the 2008 Proxy Statement when it becomes available because it will
contain important information. Investors can obtain the Schedule 14A and, after
it is filed, will be able to obtain the 2008 Proxy Statement for free at the
SEC's website at xxx.xxx.xxx and
the Company's
website at xxx.xxxxxxxxxxxxxxxxx.xxx.
About
CBRE Realty Finance, Inc.
CBRE
Realty Finance, Inc. is a commercial real estate specialty finance company
primarily focused on originating, acquiring, investing in, financing and
managing a diversified portfolio of commercial real estate-related loans and
securities. CBRE Realty Finance has elected to qualify to be taxed as a real
estate investment trust, or REIT, for federal income tax purposes. CBRE Realty
Finance is externally managed and advised by CBRE Realty Finance Management,
LLC, an indirect subsidiary of CB Xxxxxxx Xxxxx Group, Inc. and a direct
subsidiary of CBRE/Melody & Company. For more information on the Company,
please visit the Company's website at xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx.
Forward-Looking
Information
This
press release contains forward-looking statements based upon the Company's
beliefs, assumptions and expectations of its future performance, taking into
account all information currently available. These beliefs, assumptions and
expectations can change as a result of many possible events or factors, not all
of which are known to the Company or are within its control. If a change occurs,
the Company's business, financial condition, liquidity and results of operations
may vary materially from those expressed in its forward-looking statements. The
factors that could cause actual results to vary from the Company's
forward-looking statements include the Company's future operating results, its
business operations and prospects, general volatility of the securities market
in which the Company invests and the market prices of its common stock, the
Company's ability to begin making investments in the future, availability, terms
and development of short-term and long-term capital, availability of qualified
personnel, changes in the industry, interest rates, the debt securities, credit
and capital markets, the general economy or the commercial finance and real
estate markets specifically, performance and financial condition of borrowers
and corporate customers, increased prepayments of the mortgage and other loans
underlying the Company's investments, the status of the class action lawsuit and
any future litigation that may arise, the ultimate proceeds of the EOP assets
that underlie the Company's $40 million mezzanine investment and resolution of
the Company's $42.8 million B-note investment, and other factors, which are
beyond the Company's control. The Company undertakes no obligation to publicly
update or revise any of the forward-looking statements. For further information,
please refer to the Company's filings with the Securities and Exchange
Commission.
About
Arbor Realty Trust, Inc.
A-2
Arbor
Realty Trust, Inc. is a real estate investment trust which invests in a
diversified portfolio of multifamily and commercial real estate related bridge
and mezzanine loans, preferred equity investments, mortgage related securities
and other real estate related assets. Arbor commenced operations in July 2003
and conducts substantially all of its operations through its operating
partnership, Arbor Realty Limited Partnership and its subsidiaries. Arbor is
externally managed and advised by Arbor Commercial Mortgage, LLC, a national
commercial real estate finance company operating through 11 sales and
origination support offices in the US that specializes in debt and equity
financing for multi-family and commercial real estate.
Safe
Harbor Statement
Certain
items in this press release may constitute forward-looking statements within the
meaning of the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. These statements are based on management's current
expectations and beliefs and are subject to a number of trends and uncertainties
that could cause actual results to differ materially from those described in the
forward-looking statements. Arbor can give no assurance that its expectations
will be attained. Factors that could cause actual results to differ materially
from Arbor's expectations include, but are not limited to, continued ability to
source new investments, changes in interest rates and/or credit spreads, changes
in the real estate markets, and other risks detailed in Arbor's Annual Report on
Form 10-K for the year ended December 31, 2007 and its other reports filed with
the SEC. Such forward- looking statements speak only as of the date of this
press release. Arbor expressly disclaims any obligation or undertaking to
release publicly any updates or revisions to any forward-looking statements
contained herein to reflect any change in Arbor's expectations with regard
thereto or change in events, conditions, or circumstances on which any such
statement is based.
#
# #
A-3
