FIRST AMENDMENT TO AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT (NorthStar Entities)
FIRST
AMENDMENT TO
AMENDED
AND RESTATED MASTER REPURCHASE AGREEMENT
(NorthStar
Entities)
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED MASTER REPURCHASE
AGREEMENT,
dated
as of June 22, 2007 (this “Amendment
No. 1”),
is
entered into by and among NRFC
WA HOLDINGS, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC”),
NRFC
WA HOLDINGS II, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC II”),
NRFC
WA HOLDINGS VII, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC VII”),
NRFC
WA HOLDINGS X, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC X”),
NRFC
WA HOLDINGS XI, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC XI”),
NRFC
WA HOLDINGS XII, LLC,
as a
seller (together with its successors and permitted assigns, “NRFC XII”,
and,
together with NRFC, NRFC II, NRFC VII, NRFC X and NRFC XI,
the “Seller”),
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as the
purchaser (together with its successors and assigns in such capacity, the
“Purchaser”),
NORTHSTAR
REALTY FINANCE CORP.,
as a
guarantor (together with its successors and assigns, “NorthStar”),
and
NORTHSTAR
REALTY FINANCE L.P.,
a
Delaware limited partnership, as a guarantor (together with its successors
and
permitted assigns, the “Operating
Partnership”,
and,
together with NorthStar, the “Guarantor”),
and
consented to by XXXXX
FARGO BANK, NATIONAL ASSOCIATION
(together with its successors and permitted assigns, the “Custodian”).
Capitalized terms used and not otherwise defined herein shall have the meanings
given to such terms in the Repurchase Agreement (as defined below).
RECITALS
WHEREAS,
the
Seller, the Guarantor and the Purchaser are parties to that certain Amended
and
Restated Master Repurchase Agreement, dated as of June 5, 2007 (as amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time, including this Amendment No. 1, the “Repurchase
Agreement”);
WHEREAS,
the
Seller and the Guarantor desire to make certain modifications to the Repurchase
Documents;
WHEREAS,
the
Purchaser is willing to modify the Repurchase Documents as requested by the
Seller and the Guarantor on the terms and conditions specified herein;
and
WHEREAS,
the
Custodian is a party to other Repurchase Documents and related agreements that
may be affected, directly or indirectly, by this Amendment No. 1 and
desires to evidence its agreement 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. Amendment
to Repurchase Agreement.
(a)The
definition of “Eurodollar Rate” contained in Subsection1.1 (b)
of the
Repurchase Agreement is hereby amended and restated as
follows:
““Eurodollar
Rate”:
With
respect to each Eurodollar Period during which a Transaction is outstanding,
the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
equal
to the rate appearing at Reuters Screen LIBORO1 Page (or any successor page)
as
the London interbank offered rate for deposits in Dollars at or about
9:00 a.m., Charlotte, North Carolina time, two (2) Business Days prior
to the beginning of such Eurodollar Period (and if such date is not a Business
Day, the Eurodollar Rate in effect on the Business Day immediately preceding
such date) for a term comparable to such Eurodollar Period, or, if no such
rate
appears on Reuters Screen LIBORO1 Page (or any successor page) at such time
and
day, then the Eurodollar Rate shall be determined by Wachovia at its principal
office in Charlotte, North Carolina as its rate (each such determination, absent
manifest error, to be conclusive and binding on all parties hereto and their
successors and assignees) at which thirty (30) day deposits in United
States Dollars are being, have been, or would be offered or quoted by Wachovia
to major banks in the applicable interbank market for Eurodollar deposits at
or
about 11:00 a.m. on such day. The Purchaser’s determination of Eurodollar
Rate shall be conclusive upon the parties absent manifest error on the part
of
the Purchaser.”
(b)Clause
(vi)
of
Subsection 5.1(v)
to the
Repurchase Agreement is hereby amended and restated as
follows:
“(i) Fixed
Charge Coverage.
For
each Test Period, NorthStar shall maintain a minimum Fixed Charge Coverage
Ratio
of 1.25x.”
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 any Repurchase Document shall be deemed
to
mean each Repurchase Document as modified by this Amendment No. 1. This
Amendment No. 1 shall not constitute a novation of the Repurchase
Documents, but shall constitute a modification thereof. The parties hereto
agree
to be bound by the terms and conditions of the Repurchase Documents, as modified
by this Amendment No. 1, as though such terms and conditions were set forth
herein.
Section
4. Representations.
Each
of
the Seller and the Guarantor represent and warrant, as of the date of this
Amendment No. 1, 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. 1 is within
its corporate, company or partnership powers, has been duly authorized and
does
not contravene (1) its Authority 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. 1;
(d) this
Amendment No. 1 has been duly executed and delivered by it;
(e) this
Amendment No. 1, as well as each of the Repurchase Documents as modified by
this Amendment No. 1, 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. 1; and
(g) each
of
the Repurchase Documents is in full force and effect and neither the Seller
nor
the Guarantor has any defense, offset, counterclaim, abatement, right of
rescission or other claims, legal or equitable, available to the Seller, the
Guarantor or any other Person with respect to this Amendment Xx. 0, xxx
Xxxxxxxxxx Xxxxxxxxx, 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 and the Guarantor to repay the
Obligations and other amounts due under the Repurchase Documents.
Section
5. Conditions
Precedent.
The
effectiveness of this Amendment No. 1 is subject to the following
conditions precedent: (i) delivery
to the Purchaser of this Amendment No. 1 duly executed by each of the
parties hereto; (ii) the payment of all reasonable legal fees and expenses
of Xxxxx & Xxx Xxxxx PLLC, as counsel to the Purchaser, in the amount to be
set forth on a separate invoice; and (iii) such other documents, agreements
or certifications as the Purchaser may reasonably require.
Section
6. Miscellaneous.
(a) This
Amendment No. 1 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. 1 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. 1 may not be amended or otherwise modified, waived or
supplemented except as provided in the Repurchase Agreement.
(d) The
interpretive provisions of Section 1.2
of the
Repurchase Agreement are incorporated herein mutatis mutandis.
(e) This
Amendment No. 1 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. 1
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT NO. 1
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]
IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 1 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
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| By: | /s/ Xxxxxx Xxxxx | |
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Name: Xxxxxx
Xxxxx
Title:
Executive
Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
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Xxxxxx
X. Xxxxxxx
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE SELLERS (cont.): | NRFC
WA HOLDINGS II, LLC,
a
Delaware limited liability company
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| |
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| By: | /s/ Xxxxxx Xxxxx | |
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Name:
Xxxxxx
Xxxxx
Title:
Executive Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings II, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
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Xxxxxx
X. Xxxxxxx
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||
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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||
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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||
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE SELLERS (cont.): | NRFC
WA HOLDINGS VII, LLC,
a
Delaware limited liability company
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| |
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| By: | /s/ Xxxxxx Xxxxx | |
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Name:
Xxxxxx
Xxxxx
Title:
Executive Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings VII, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
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Xxxxxx
X. Xxxxxxx
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||
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE SELLERS (cont.): | NRFC
WA HOLDINGS X, LLC,
a
Delaware limited liability company
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| |
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| By: | /s/ Xxxxxx Xxxxx | |
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Name:
Xxxxxx
Xxxxx
Title:
Executive Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings X, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
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Xxxxxx
X. Xxxxxxx
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE SELLERS (cont.): | NRFC
WA HOLDINGS XI, LLC,
a
Delaware limited liability company
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| |
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| By: | /s/ Xxxxxx Xxxxx | |
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Name:
Xxxxxx
Xxxxx
Title:
Executive Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings XI, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
|
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Xxxxxx
X. Xxxxxxx
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE SELLERS (cont.): | NRFC
WA HOLDINGS XII, LLC,
a
Delaware limited liability company
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| |
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| By: | /s/ Xxxxxx Xxxxx | |
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Name:
Xxxxxx
Xxxxx
Title:
Executive Vice President, General Counsel
and
Assistant Secretary
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NRFC
WA Holdings XII, LLC
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c/o
NorthStar Realty Finance Corp.
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
|
Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
|
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Xxxxxx
X. Xxxxxxx
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Facsimile
No.:
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(000)
000-0000
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|
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Confirmation
No.:
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(212)
547-2650
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(212)
547-2641
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(000)
000-0000
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with
a copy to:
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Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
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Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
THE
PURCHASER:
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||
| |
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| By: | /s/ H. Xxx Xxxxx III | |
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Name: H.
Xxx Xxxxx III
Title: Vice
President
|
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Wachovia
Bank, National Association
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One
Wachovia Center, Mail Code: NC0166
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000
Xxxxx Xxxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
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Attention:
|
Xxx
Xxxxx
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE GUARANTORS: |
NORTHSTAR
REALTY FINANCE CORP.,
a
Maryland corporation
|
|
| |
|
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| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Xxxxxx
Xxxxx
Title:
Executive
Vice President, General Counsel
and
Assistant Secretary
|
||
|
NorthStar
Realty Finance Corp.
|
||
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000
Xxxx Xxxxxx, 00xx xxxxx
|
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
|
Xxxx
Xxxxxxxxxx
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Al
Tylis, Esq.
|
||
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Xxxxxx
X. Xxxxxxx
|
||
|
Facsimile
No.:
|
(000)
000-0000
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|
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Confirmation
No.:
|
(212)
547-2650
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(212)
547-2641
|
||
|
(000)
000-0000
|
||
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with
a copy to:
|
||
|
Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
|
||
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
|
Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
| THE GUARANTORS (cont.): | NORTHSTAR
REALTY FINANCE L.P.,
a
Delaware limited partnership,
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| |
|
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| By: |
NorthStar
Realty Finance Corp., a Maryland corporation, its general
partner
|
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|
||
| By: | /s/ Xxxxxx Xxxxx | |
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President, General Counsel
and
Assistant Secretary
|
||
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NorthStar
Realty Finance L.P.
|
||
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c/o
NorthStar Realty Finance Corp.
|
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
|
||
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Attention:
|
Xxxx
Xxxxxxxxxx
|
|
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Al
Tylis, Esq.
|
||
|
Xxxxxx
X. Xxxxxxx
|
||
|
Facsimile
No.:
|
(000)
000-0000
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|
|
Confirmation
No.:
|
(212)
547-2650
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(212)
547-2641
|
||
|
(000)
000-0000
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||
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with
a copy to:
|
||
|
Xxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
|
||
|
00
Xxxx 00xx
Xxxxxx
|
||
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Xxx
Xxxx, Xxx Xxxx
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00000
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Attention:
|
Xxxxxx
X. Xxxxxx, Esq.
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Facsimile
No.:
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(000)
000-0000
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Confirmation
No.:
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(000)
000-0000
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[Signatures
Continued on the Following Page]
Acknowledged
and Agreed to:
| THE CUSTODIAN: | XXXXX FARGO BANK, NATIONAL ASSOCIATION | |
| |
|
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| By: | /s/ Xxxxxxxxx Xxxxxxxx | |
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Name:
Xxxxxxxxx
Xxxxxxxx
Title: Assistant
Vice President
|
||
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Xxxxx
Fargo Bank, National Association
|
||
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0000
00xx Xxxxxx XX
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Xxxxxxxxxxx,
Xxxxxxxxx
|
00000 | |
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Attention:
|
Xxxx
Xxxxxxxx,
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Assistant
Vice President
|
||
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Facsimile:
No:
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(000)
000-0000
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Confirmation
No:
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(000)
000-0000
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