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EXECUTION VERSION
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FOURTH AMENDMENT TO
MASTER REPURCHASE AGREEMENT
(WACHOVIA TRANSACTION WITH NRFC WA HOLDINGS, LLC)
THIS FOURTH AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of
October 28, 2005 (this "Amendment No. 4"), is entered into by and among NRFC WA
HOLDINGS, LLC, as a seller ("NRFC") and NRFC WA HOLDINGS II, LLC, as a seller
("NRFC II" and, collectively with NRFC, the "Sellers"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as the buyer (in such capacity, the "Buyer"), and NORTHSTAR REALTY
FINANCE CORP., as the guarantor (the "Guarantor"), and consented to by NRFC
SUB-REIT CORP., as the pledgor (the "Pledgor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION (f/k/a Xxxxx Fargo Bank Minnesota, N.A.), as the custodian (in such
capacity, the "Custodian"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as the swap
counterparty (in such capacity, the "Swap Counterparty"). Capitalized terms used
and not otherwise defined herein shall have the meanings given to such terms in
the Repurchase Agreement (as defined below).
R E C I T A L S
WHEREAS, the Seller, the Guarantor and the Buyer are parties to that
certain Master Repurchase Agreement (including all annexes, exhibits and
schedules thereto), dated as of July 13, 2005, as amended by that certain First
Amendment to Master Repurchase Agreement, dated as of August 24, 2005
("Amendment No. 1"), that certain Second Amendment to Master Repurchase
Agreement, dated as of September 20, 2005 ("Amendment No. 2"), that certain
Third Amendment to Master Repurchase Agreement, dated as of September 30, 2005
("Amendment No. 3"), and that certain Omnibus Amendment to Repurchase Documents
and Joinder, dated as of October 21, 2005 ("Omnibus Amendment") (as such Master
Repurchase Agreement is amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time, including pursuant to
Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, the Omnibus Amendment and
this Amendment No. 4, the "Repurchase Agreement");
WHEREAS, the Seller desires to make certain modifications to the
Repurchase Agreement;
WHEREAS, the Buyer is willing to modify the Repurchase Agreement as
requested by the Seller on the terms and conditions specified herein; and
WHEREAS, the Pledgor, the Custodian and the Swap Counterparty are
parties to other Repurchase Documents and related agreements that may be
affected, directly or indirectly, by this Amendment No. 4 and desire to consent
to the amendments and modifications set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. AMENDMENTS TO REPURCHASE AGREEMENT.
(a) The following new definitions are added to Section 1(a) of Annex I
to the Repurchase Agreement:
(1) "Bond Purchase Agreement: The Bond Purchase Agreement,
dated as of [OCTOBER 28], 2005, between the Purchaser and NRFC
Sub-REIT Corp."
(2) "Bond Purchase Price: The "Purchase Price" outstanding
under, and as defined in, the Bond Purchase Agreement."
(b) The following definitions in Section 1(a) of Annex I to the
Repurchase Agreement are hereby amended and restated as follows:
(1) "Maximum Amount: Means (a) during the Temporary Increase
Period, $350,000,000 and (b) after the Temporary Increase
Period, (i) in the event the Seller repays the Temporary
Increase Indebtedness plus all accrued and unpaid Price
Differential thereon and all related Breakage Costs on or
before the Temporary Increase Expiration Date, $150,000,000
and (ii) in the event the Seller does not satisfy clause
(b)(i) of this definition, $350,000,000; provided, however,
(1) the amounts under clauses (a) and (b) of this definition
shall be reduced by the amount of the Bond Purchase Price
outstanding under the Bond Purchase Agreement and (2) on and
after the Facility Maturity Date, the Maximum Amount shall
mean the aggregate Purchase Price outstanding for all
Transactions."
(2) "Seller-Related Obligations: Any obligations, liabilities
and/or Indebtedness of the Seller and/or any Indebtedness of
the Guarantor or the Pledgor under any other arrangement
between the Seller, the Guarantor and/or the Pledgor on the
one hand and the Buyer, an Affiliate of the Buyer (including,
without limitation the obligations, liabilities and
Indebtedness under the Swap Documents) and/or any commercial
paper conduit for which the Buyer or an Affiliate of the Buyer
acts as a liquidity provider, administrator or agent on the
other hand, including, without limitation, the obligations,
liabilities and Indebtedness of the Pledgor to the Purchaser
under the Bond Purchase Agreement."
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SECTION 2. [RESERVED].
SECTION 3. REPURCHASE DOCUMENTS IN FULL FORCE AND EFFECT AS MODIFIED.
Except as specifically modified hereby, the Repurchase Documents shall
remain in full force and effect. All references to the Repurchase Agreement
shall be deemed to mean the Repurchase Agreement as modified by this Amendment
No. 4. This Amendment No. 4 shall not constitute a novation of the Repurchase
Agreement, but shall constitute a modification thereof. The parties hereto agree
to be bound by the terms and conditions of the Repurchase Agreement, as modified
by this Amendment No. 4, as though such terms and conditions were set forth
herein.
SECTION 4. REPRESENTATIONS.
Each of the Sellers, the Guarantor and the Pledgor represents and
warrants, as of the date of this Amendment No. 4, as follows:
(a) it is duly incorporated or organized, validly existing and in good
standing under the laws of its jurisdiction of organization and each
jurisdiction where it conducts business;
(b) the execution, delivery and performance by it of this Amendment No.
4 is within its corporate, company or partnership powers, has been duly
authorized and does not contravene (1) its Governing Documents or its applicable
resolutions, (2) any Applicable Law or (3) any Contractual Obligation,
Indebtedness or Guarantee Obligation;
(c) no consent, license, permit, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority or other
Person is required in connection with the execution, delivery, performance,
validity or enforceability by or against it of this Amendment No. 4;
(d) this Amendment No. 4 has been duly executed and delivered by it;
(e) this Amendment No. 4, as well as each of the Repurchase Documents
as modified by this Amendment No. 4, constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity;
(f) no Default or Event of Default exists or will exist after giving
effect to this Amendment No. 4; and
(g) each of the Repurchase Documents is in full force and effect and
neither the Seller, the Guarantor nor the Pledgor have any defenses, offsets,
counterclaims, abatements, rights of rescission or other claims, legal or
equitable, available to the Seller, the Guarantor, the Pledgor or any other
Person with respect to this Amendment Xx. 0, xxx Xxxxxxxxxx Xxxxxxxxx,
0
xxx Xxxxxxxxxx Documents or any other instrument, document and/or agreement
described herein or therein, as modified and amended hereby, or with respect to
the obligation of the Seller to repay the Obligations and other amounts due
under the Repurchase Documents.
SECTION 5. CONDITIONS PRECEDENT.
The effectiveness of this Amendment No. 4 is subject to the following
conditions precedent: (i) delivery to the Buyer of this Amendment No. 4 duly
executed by each of the parties hereto; (ii) payment of all reasonable legal
fees and expenses of Xxxxx & Xxx Xxxxx PLLC, as counsel to the Buyer, in the
amount to be set forth on a separate invoice; and (iii) such other documents,
agreements or certifications as the Buyer may reasonably require.
SECTION 6. MISCELLANEOUS.
(a) This Amendment No. 4 may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement.
(b) The descriptive headings of the various sections of this Amendment
No. 4 are inserted for convenience of reference only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
(c) This Amendment No. 4 may not be amended or otherwise modified,
waived or supplemented except as provided in the Repurchase Agreement.
(d) The interpretive provisions of Section 1(b) of Annex I of the
Repurchase Agreement are incorporated herein mutadis mutandis.
(e) This Amendment No. 4 represents the final agreement among the
parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements between the parties. There are no unwritten oral
agreements between the parties.
(f) THIS AMENDMENT NO. 4 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT NO. 4 SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 4 to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLERS: NRFC WA HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Executive Vice President
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Address for Notices:
NRFC WA Holdings, LLC
c/o NorthStar Realty Finance Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(000) 000-0000
Confirmation No.: (000) 000-0000
(000) 000-0000
(000) 000-0000
with a copy to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 1
THE SELLERS (CONT.): NRFC WA HOLDINGS II, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Executive Vice President
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Address for Notices:
NRFC WA Holdings II, LLC
c/o NorthStar Realty Finance Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(000) 000-0000
Confirmation No.: (000) 000-0000
(000) 000-0000
(000) 000-0000
with a copy to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 2
THE GUARANTOR: NORTHSTAR REALTY FINANCE CORP.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title: Executive Vice President
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Address for Notices:
NorthStar Realty Finance Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(000) 000-0000
Confirmation No.: (000) 000-0000
(000) 000-0000
(000) 000-0000
with a copy to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 3
THE BUYER: WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Title: Associate
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Wachovia Bank, National Association
One Wachovia Center, Mail Code: NC0166
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 4
CONSENTED TO BY:
THE PLEDGOR: NRFC SUB-REIT CORP.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Executive Vice President
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NRFC Sub-REIT Corp.
c/o NorthStar Realty Finance Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(000) 000-0000
Confirmation No.: (000) 000-0000
(000) 000-0000
(000) 000-0000
with a copy to:
Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 5
CONSENTED TO BY:
THE CUSTODIAN: XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
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Title: Corporate Trust Officer
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Xxxxx Fargo Bank, National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx,
Assistant Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Schedule 6
THE SWAP COUNTERPARTY: WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxxx
---------------------------------------
Title: Director
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Wachovia Bank, National Association
One Wachovia Center, Mail Code: NC0166
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Senior Vice
President, Risk Management
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Schedule 7
