Unassociated Document


  
    
      AGREEMENT (this “Agreement”) dated as
of March 16, 2009, by Capital Trust, Inc. (the “Seller”) and Goldman
Sachs Mortgage Company (“Buyer”), each a
“Party”, and,
collectively, the “Parties”.

       

      Reference
is made to the Amended and Restated Master Repurchase Agreement between Buyer
and the Seller, dated as of August 15, 2006 as supplemented by that certain
Amended and Restated Annex I, dated as of October 30, 2007 (as amended,
supplemented or modified, and together with all schedules, annexes and exhibits
thereto, and all confirmations exchanged pursuant to the Transactions entered
into in connection therewith, the “Repurchase
Agreement”). All capitalized terms not otherwise defined herein have the
meaning set forth in the Repurchase Agreement.

       

      NOW,
THEREFORE, in consideration of the foregoing, the Parties have agreed as
follows:

       

      1.           Additional
Payments.  On the date hereof (the “Termination Date”),
Seller shall pay to Buyer an amount equal to the sum of $2,641,632.12 and the
TCAL Future Funding Amount (as defined below) (the “Paydown Amount”),
which amount shall be applied to reduce the Repurchase Price (excluding accrued
and unpaid Price Differential) under the Repurchase Agreement. The “TCAL
Future Funding Amount” means an amount equal to $1,811,508.90.

       

      2.           Purchase of Purchased
Loans.

       

      (a)           On
the Termination Date, (i) Buyer and Seller agree that the Repurchase Date for
all Transactions under the Repurchase Agreement shall be deemed to occur, (ii)
the Repurchase Price (including accrued and unpaid Price Differential) shall be
due and payable by Seller to Buyer, and, subject to receipt of the amount of
$83,828,683.39, plus accrued and unpaid Price Differential to but excluding the
Termination Date net of accrued and unpaid interest on the Closeout Loans (the
“Closeout Repurchase
Price”) (subject to the netting described below) (which Buyer agrees
shall satisfy in full the obligation of Seller to pay the Repurchase Price
(including accrued and unpaid Price Differential) pursuant to the Repurchase
Agreement), Buyer shall be obligated to transfer the Purchased Loans to Seller
pursuant to the Repurchase Agreement, (iii) the Seller shall sell and transfer
to Buyer, free and clear of all liens, claims, encumbrances, obligations,
liabilities or any similar interests whatsoever, and Buyer agrees to purchase,
the Purchased Loans other than the Excluded Purchased Loan (as defined below)
(the “Closeout
Loans”) at a purchase price equal to the Closeout Purchase Price (as
defined below) and (iv) upon consummation of the transactions described in the
foregoing clauses (i), (ii) and (iii), the Repurchase Agreement and the other
Transaction Documents shall terminate and be of no further force and
effect.  “Excluded Purchased
Loan” means the Woodfin Chase Purchased Loan.

       

      (b)           The
transactions contemplated by clauses (i), (ii) and (iii) of the prior sentence,
the payment of the Paydown Amount in accordance with Section 1 above and the
termination of the Repurchase Agreement and the other Transaction Documents
shall be confirmed by such form of confirmation or trade ticket as Buyer
customarily uses, provided, that, Buyer’s delivery of such confirmation or trade
ticket shall not be a condition precedent to the effectiveness of the
terminations and releases contained herein.  The Closeout Purchase
Price (as defined below) due from Buyer to Seller shall be adjusted, paid and
netted (as applicable) against the payment of the Closeout Repurchase Price
payable by Seller to Buyer and the obligation of Buyer to transfer the Purchased
Loans to Seller shall be netted against the obligation of Seller to transfer the
Closeout Loans to Buyer.  The “Closeout Purchase
Price” means $83,828,683.39.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      3.           Representations and
Warranties.  Each of Seller and Buyer represents and warrants
that (i) this Agreement has been duly authorized, executed and delivered, (ii)
the transactions contemplated hereby have been duly authorized by all necessary
action, do not violate any agreement, document or law or regulation or require
any consent or filing with any person or entity, and (iii) this Agreement
constitutes the legal, valid, and binding obligations of such Party, enforceable
against such Party in accordance with its terms. Buyer and Seller each
acknowledge and agree that the transactions hereunder constitute “reasonably
equivalent value” and “fair consideration” (as such terms are used in connection
with any applicable fraudulent conveyance, fraudulent transfer or other similar
laws) and are made in good faith.

       

      4.           Releases.  On
the Termination Date, upon consummation of the termination of the Transactions,
the Repurchase Agreement and the other Transaction Documents pursuant to this
Agreement and the sale of the Closeout Loans in accordance with this Agreement
each Party hereby releases, acquits and forever discharges each other Party, and
each of their respective subsidiaries, affiliates, officers, directors, agents,
employees, partners, members, managers, servants, attorneys and representatives,
as well as the heirs, personal representatives, predecessors-in-interest,
successors and assigns from any and all claims, demands, debts, actions, causes
of action, suits, contracts, agreements, obligations, liabilities, accounts,
defenses, offsets against the liabilities and obligations arising under or
related to the Repurchase Agreement and the other Transaction Documents and the
Transactions contemplated therein or related thereto, including, without
limitation, all such claims, defenses and liabilities of any kind or character
whatsoever, whether known or unknown, suspected or unsuspected, in contract, in
tort or statutory, at law or in equity, including, without limitation, such
claims and defenses as fraud, misrepresentation, breach of duty, mistake,
duress, usury, claims pertaining to so-called “lender liability,” and claims
pertaining to creditor’s rights, which such Party ever had, now has, or might
hereafter have against the other, jointly or severally, for or by reason of any
matter, act, omission, cause or thing whatsoever occurring, on or prior to or
subsequent to the date of this Agreement, that is related to, in whole or in
part, directly or indirectly the Repurchase Agreement, the other Transaction
Documents and/or any of the Transactions; provided, however, that nothing
in this Agreement or these releases shall be deemed to release any obligation of
Buyer or Seller, as the case may be, arising under this Agreement or the
transactions contemplated hereunder.  In connection with the releases
granted herein, each of the Parties hereby waives all rights conferred by the
provisions of California Civil Code Section 1542 and/or any similar state or
federal law.  California Civil Code Section 1542 provides as
follows:

       

      A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.

       

      The
Parties understand and acknowledge the significance and consequence of their
waiver of Section 1542 of the California Civil Code, as well as any other
federal or state statute or common law principle of similar effect, and
acknowledge that this waiver is a material inducement to and consideration for
each other Party’s execution of this Agreement.

       

      
        
          
          

        

        
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      5.           Safe Harbor
Rights.  Seller acknowledges and agrees that (i) this Agreement
and the Repurchase Agreement constitute a “repurchase agreement” within the
meaning of section 101(47) of the United States Bankruptcy Code (the “Code”), and a
“securities contract” within the meaning of section 741(7) of the Code, (ii) the
exercise by Buyer of rights hereunder and as set forth in the Repurchase
Agreement are rights described in and protected by sections 362(b)(6),
362(b)(7), 362(b)(27), 555, 559 and 561 of the Code, (iii) Buyer is entitled to
all rights and protections applicable to “repurchase agreements” and “securities
contracts” under the Code, including, without limitation, the rights and
protections described in the Code sections referenced in (ii) of this Section 5,
the rights and protections afforded under sections 546(e), 546(f), 546(j),
548(d)(2)(B), 548(d)(2)(C) of the Code, and the rights and protections
applicable to setoffs or netting described in sections 362(b)(6), 362(b)(7),
555, 559 and 561 of the Code.

      


      6.           Miscellaneous.  This
Agreement embodies the entire agreement and understanding of the Parties with
respect to the subject matter of this Agreement, and supersedes all prior or
contemporaneous agreements or understandings, whether written or oral, between
or among the Parties with respect to that subject matter.  This
Agreement may be amended, and the terms hereof may be waived, only by a written
instrument signed by each of the Parties, or, in the case of a waiver, by the
Party waiving compliance. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.  This Agreement may be executed and
delivered by facsimile or PDF.  Any facsimile or PDF signatures shall
have the same legal effect as manual signatures.  The Seller shall not
have any right to transfer or delegate (whether by way of security or otherwise)
this Agreement or any right, title, interest, power, privilege, remedy,
obligation or duty in, to or under this Agreement, in whole or in part, without
the prior written consent of Buyer.  Buyer may transfer or delegate
(whether by way of security or otherwise) this Agreement or any right, title,
interest, power, privilege, remedy, obligation or duty in, to or under this
Agreement, in whole or in part, to an affiliate of Buyer or any entity sponsored
or organized by, or on behalf of or for the benefit of, Buyer without the
consent of the Seller.

      


      This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (without reference to its conflicts of laws principles) and
the Parties agree to submit to the non-exclusive jurisdiction of the federal and
state courts in the borough of Manhattan in New York, New York in relation to
any dispute arising out of or in connection with this Agreement.

       

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      IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first above written.

       

      
        
          
            
              
                
                  
                    
                      
                        	 	
                                GOLDMAN
      SACH MORTGAGE COMPANY,

                                a
      New York limited partnership

                              	 
	 	 	 	 
	 	
                                By: Goldman
      Sachs Real Estate Funding Corp., its general
      partner 

                              	 
	 	 	 	 
	 	
                                By: 

                              	/s/ Mark
    Buono	 
	 	 	Name: Mark
      Buono	 
	 	 	Title: Vice
      President	 
	 	 	 	 


                      

                    

                  

                

              

            

          


        


        
          
            
              
                
                  
                    	 	 	 
	 	
                            CAPITAL TRUST, INC.,
      a
      Maryland corporation

                          	 
	 	 	 	 
	
                              

                          	
                            By:
      

                          	/s/ Geoffrey G.
      Jervis	 
	 	 	Name: Geoffrey
      G. Jervis	 
	 	 	Title: Chief
      Financial Officer