SATISFACTION, TERMINATION AND RELEASE AGREEMENT
Exhibit 10.71
This
SATISFACTION, TERMINATION AND RELEASE AGREEMENT (this “Agreement”) is dated as of
February 25, 2009, between UBS REAL ESTATE SECURITIES INC. (“Buyer”), having an address at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, and CAPITAL TRUST, INC. (“Seller”), having an address at
000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000.
RECITALS
WHEREAS,
Buyer and Seller are parties to that certain Master Repurchase Agreement, dated
as of October 30, 2007, as supplemented by that certain Confirmation to Master
Repurchase Agreement, dated as of October 30, 2007 (collectively, the “Repurchase
Agreement”);
WHEREAS,
by the Repurchase Agreement, Seller is obligated to repurchase the Purchased
Security at the Repurchase Price on the Repurchase Date and, upon payment by
Seller to Buyer of the Repurchase Price, Buyer is obligated to deliver the
Purchased Security to Seller;
WHEREAS,
Seller does not wish to repurchase the Purchased Security and Buyer wishes to
retain the Purchased Security;
WHEREAS,
Buyer has proposed, and Seller has consented to transfer to Buyer, and Buyer
unconditionally accept and retain, all of Seller’s right, title and interest in
the Purchased Security, in full satisfaction of the Seller Obligations;
and
WHEREAS,
each of the parties hereto desire to terminate its respective right, title and
interest in, to and under the Repurchase Agreement and to each release the other
from all obligations and liabilities under the Repurchase Agreement as set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties hereby agree as
follows:
1. Satisfaction, Termination
and Release.
(a) Capitalized
terms used herein and not defined herein shall have the respective meanings
attributed thereto in the Repurchase Agreement.
(b) Buyer
hereby proposes, and Seller hereby consents, and Buyer and Seller hereby
acknowledge, that (i) Seller by this Agreement transfers to Buyer, and Buyer
unconditionally accepts and retains, all of Seller’s right, title and interest
in the Purchased Security (the “Transfer”) and (ii) the
Transfer shall unconditionally and fully satisfy the Seller Obligations in all
respects, including, without limitation, Seller’s obligations to pay the
Repurchase Price and all other amounts owed to Buyer under the Repurchase
Agreement and other Repurchase Documents. As such, Seller shall have
no further rights with respect to the Purchased Security or under the Repurchase
Documents and no further obligations with respect to the Seller Obligations, and
Buyer shall be entitled to all rights of ownership of the Purchased Security and
shall have no further rights to collect or otherwise enforce the Seller
Obligations.
(c) Buyer
and Seller hereby acknowledge that the Repurchase Agreement, all other
Repurchase Documents and the Transactions contemplated thereby are hereby
terminated and of no further force and effect and that (x) Buyer and Seller are
each hereby released and discharged from all their respective obligations or
liabilities under the Repurchase Agreement and all other Repurchase Documents,
and (y) the rights of Buyer and Seller under the Repurchase Agreement and all
other Repurchase Documents are terminated. Buyer authorizes Seller to
file a UCC Financing Statement Amendment to terminate UCC Financing Statement
#0001489904 filed with the State of Maryland Department of Assessments and
Taxation on November 14, 2007 naming Seller as debtor and Buyer as secured
party.
2. Representations and
Warranties. Each of the parties hereto represent and warrant
to each other, that, as of the date hereof: (a) it has the requisite authority
and power to enter into this Agreement and the transactions contemplated hereby,
and (b) the execution and delivery of this Agreement has been duly authorized
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms.
3. Further
Assurances. Each party hereto shall promptly execute and
deliver, or to cause to be executed and delivered, all such instruments and to
take all such actions as the other party may reasonably request to effectuate
the intent and purposes, and to carry out the terms, of this Agreement,
including, without limitation, the delivery and transfer by Seller to Buyer of
the Purchased Security.
4. Counterparts. This
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all of which when taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement in Portable Document Format
(PDF) or by facsimile transmission shall be effective as delivery of a manually
executed original counterpart thereof.
5. Amendment. This
Agreement may not be amended or modified, except by an instrument in writing
signed by the Buyer and Seller.
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6. Costs and
Expenses. Each of the parties hereto shall be liable for its
own costs and expenses in connection with the preparation, negotiation,
execution and performance of this Agreement.
7. Severability. The
illegality, invalidity, or unenforceability of any provision of this Agreement
under the law of any jurisdiction shall not affect its legality, validity or
enforceability under the law of any other jurisdiction nor the legality,
validity or enforceability of any other provision.
8. Successors and
Assigns. The terms of this Agreement and the respective rights
and obligations of the parties hereunder shall be binding upon, and inure to the
benefit of, their respective successors and assigns.
9. Governing Law; Waiver of
Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PROVISIONS OF THE STATE OF NEW YORK.
[Signature
pages follow]
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IN
WITNESS WHEREOF, this Agreement has been duly executed as of the date first
written above.
| UBS REAL ESTATE SECURITIES INC., as Buyer | ||||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx | ||
| Name: | Xxxxxx X. Xxxxxxxxxxx | |||
| Title: |
Executive
Director
|
|||
|
By:
|
/s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: |
Executive
Director
|
|||
| CAPITAL TRUST, INC., as Seller | ||||
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
