Exhibit 10.3
FIRST AMENDMENT TO MASTER REPURCHASE AGREEMENT
FIRST AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of
August 26, 2003 (this "Amendment"), to the Master Repurchase Agreement, dated as
of May 28, 2003 (the "Repurchase Agreement"), by and between Xxxxxxx Xxxxx
Mortgage Company, as a buyer ("GSMC") and Capital Trust, Inc., as seller
("Seller"). Commerzbank AG, New York Branch ("Commerzbank") is executing this
Amendment as a buyer under the Repurchase Agreement pursuant to the assignment
of the Undivided Interest (as defined below) by GSMC to Commerzbank in the
Purchased Loans and the Transaction Documents. In addition, Xxxxxxx Sachs
Mortgage Company is executing this Amendment as administrative agent (in such
capacity, and together with its successors and permitted assigns in such
capacity, the "Administrative Agent"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Repurchase Agreement.
RECITAL
-------
WHEREAS, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties have agreed to
increase the Facility Amount under the Repurchase Agreement;
WHEREAS, as of the date hereof, GSMC has assigned a 50% undivided
interest (the "Undivided Interest") in the Purchased Loans acquired to date and
in the Transaction Documents and all rights and obligations thereunder to
Commerzbank AG, New York Branch ("Commerzbank"); and
WHEREAS, the parties have agreed to amend the Transaction
Documents to provide for the increase in the Facility Amount and to provide for
the express recognition by Seller of Commerzbank's rights and obligations as a
Buyer under the Transaction Documents.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Facility Amount. The definition of "Facility Amount" in
Section 2(c) of Annex I to the Repurchase Agreement is hereby deleted in its
entirety and replaced with the following:
"`Facility Amount' means $100,000,000."
2. Other Amendments.
(a) Definition of Administrative Agent. The following definition
of "Administrative Agent" is added to Section 2(c) of Annex I to the Repurchase
Agreement (in the appropriate alphabetical order):
"'Administrative Agent' means Xxxxxxx Xxxxx Mortgage Company, as
Administrative Agent under the Agreement and the other
Transaction Documents or any successor or permitted assign
appointed in such capacity."
(b) Preliminary Due Diligence Package: The definition of the
defined term "Preliminary Due Diligence Package" set forth in Section 2(c) of
Annex I to the Repurchase Agreement is hereby amended as follows:
Subclauses (xi) through (xv) of the definition of "Preliminary
Due Diligence Package" are hereby renumbered as subclauses (x)
through (xiv). The reference to "and (x)" in the renumbered
subclause (xiii) is hereby deleted.
(c) Diligence Fee: The parenthetical "(not to exceed $35,000
annually)" in the definition "Diligence Fee" set forth in Section 2(c) of Annex
I to the Repurchase Agreement is hereby deleted.
(d) Eligible Loans: The parenthetical "(other than conduit
loans)" is hereby added in subclause (ii) of the defined term "Eligible Loans"
set forth in Section 2(c) of Annex I to the Repurchase Agreement after the words
"performing Mortgage Loans."
(e) Section 3(b): Section 3(b) of Annex I to the Repurchase
Agreement is hereby replaced by the following:
"(b) Upon Buyer's receipt of a complete Preliminary Due Diligence
Package with respect to a proposed Transaction, Buyer shall have
the right within five (5) Business Days, to request in a
Supplemental Due Diligence List such additional Diligence
Materials and deliveries that Buyer deems necessary to properly
evaluate the New Loans. Buyer's failure to respond to Seller
shall be deemed to be a denial of Seller's request to enter into
the proposed Transaction, unless Buyer and Seller have agreed
otherwise in writing. Notwithstanding anything to the contrary
herein, Buyer may deny, in Buyer's sole and absolute discretion,
Seller's request for a Transaction at any time prior to the
issuance of a Confirmation irrespective of Buyer's request for
additional Diligence Materials."
(f) Section 3(c): The words "Upon Seller's receipt of Buyer's
Preliminary Approval with respect to a Transaction," are hereby deleted from the
first sentence of Section 3(c) of Annex I to the Repurchase Agreement.
(g) Section 3(e)(8): The reference to 40% in Section 3(e)(8) of
Annex I to the Repurchase Agreement is hereby changed to read "30%".
(h) Section 5(a): The reference to "Section 5(c)" in the last
sentence of Section 5(a) of the Repurchase Agreement is changed to "Section
5(d)".
(i) Section 14(a)(iii): The words "and 6(d)" are deleted in
subclause (iii)(A) and in subclause (iii)(B) of Section 14(a).
3. Assignment of Transaction Documents. (a) Pursuant to Section
17(a) of Annex I to the Repurchase Agreement, GSMC has assigned the Undivided
Interest in the
2
Transaction Documents and the Purchased Loans to Commerzbank and Seller hereby
acknowledges such assignment and agrees, except as otherwise provided in
Sections 3(b), 3(c) and 5 hereof, to recognize Commerzbank as a Buyer under the
Transaction Documents with the same rights and obligations as GSMC thereunder.
With respect to any New Loan for which a Confirmation shall have been issued,
each Buyer shall be obligated to fund only its pro-rata share (based on its
percentage of Undivided Interest in the Transaction Documents) of the Purchase
Price for such New Loan and, notwithstanding anything to the contrary herein,
shall not be obligated to fund the other Buyer's pro-rata share of the Purchase
Price.
(b) Except as otherwise provided in this Section 3(b) and in
Sections 3(c) and 5 hereof, from and after the date hereof, the term "Buyer"
shall be deemed to refer to both GSMC and Commerzbank, together with their
respective successors and assigns. References to "Buyer" in the second paragraph
of Section 17(a) of Annex I to the Repurchase Agreement shall continue to refer
only to GSMC, irrespective of the assignment of the Undivided Interest to
Commerzbank; provided, however, Seller acknowledges and agrees that GSMC shall
be acting in its capacity as Administrative Agent on behalf of the Buyer in
accordance with Paragraph 4 hereof, and may be obligated to consent, withhold
its consent or otherwise take any action hereunder upon the direction or with
the consent or concurrence of the Buyer pursuant to a separate agreement between
GSMC and Commerzbank, each as a Buyer and GSMC, as Administrative Agent.
(c) Notwithstanding anything to the contrary herein but without
in any way limiting any indemnity set forth in the Transaction Documents from
Seller to any Buyer, prior to an Event of Default, Seller shall not be
responsible for any incremental costs arising solely as a result of more than
one Buyer holding an interest in the Purchased Loans. For the avoidance of
doubt, in connection with the purchase of any New Loan by Buyer, Seller shall be
responsible for amounts relating to legal fees and disbursements payable to a
single law firm only.
(d) If either Buyer further assigns or participates its interest
in the Transaction Documents or any Purchased Loan, Seller shall not be
obligated to pay any fees or costs relating thereto, unless such assignment
results in an increase in the Facility Amount or is otherwise at the request of
Seller.
(e) Seller hereby acknowledges and agrees that Commerzbank is a
Permitted Transferee.
4. Administrative Agent. (a) Each Buyer hereby appoints and
designates GSMC as Administrative Agent, and each Buyer hereby authorizes
Administrative Agent to take such action on its behalf under the provisions of
the Repurchase Agreement and each other Transaction Document and to exercise
such powers and perform such duties on behalf of each Buyer as are expressly
delegated to it by the terms of the Repurchase Agreement or any other
Transaction Document, together with such powers as are reasonably incidental
thereto.
(b) Administrative Agent may execute any of its respective duties
under the Repurchase Agreement or any other Transaction Document or with respect
to the Purchased Loans by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. Administrative Agent shall not be
3
responsible to any Buyer or the Seller for the negligence or misconduct of any
agent, employee or attorney-in-fact that it selects with reasonable care.
(c ) Neither Administrative Agent, its Affiliates, nor their
respective officers, directors, employees, agents, or attorneys-in-fact (all of
the foregoing being collectively referred to as the "Agent-Related Persons")
shall be liable to Seller or any Buyer for any action taken or omitted to be
taken by any of them under or in connection with this Agreement, the Purchased
Loans or any other Transaction Document (except for its own gross negligence or
willful misconduct).
5. Security Interest. GSMC has assigned to Administrative Agent
for the benefit of each Buyer all pledges and security interests made and
granted by Seller to GSMC pursuant to the Repurchase Agreement and the other
Transaction Documents (the "Pledges and Security Interests") as security for
obligations of Seller under Transactions (that are deemed to be loans). In order
to give effect to such assignment, (a) Sections 6(a) and 6(b) of, and Schedules
7-A and 7-B to, Annex I to the Repurchase Agreement are amended by substituting
for the word "Buyer" each time such word appears therein the words
"Administrative Agent for the benefit of each Buyer", (b) all references in the
Repurchase Agreement and the other Transaction Documents to Buyer as pledgee or
secured party with respect to any Pledges and Security Interests (including,
without limitation, in Sections 7(b), 14(a) and 26(b) of Annex I to the
Repurchase Agreement) shall be deemed to be references to Administrative Agent
as such pledgee or secured party, and (c) all rights and remedies of the secured
party with respect to the Pledges and Security Interests shall be exercisable by
Administrative Agent for the benefit of each Buyer (subject, however, to the
proviso to the last sentence of Section 3(b) hereof).
6. Annex II; Notices; Payments. (a) Notices to Administrative
Agent shall be sent to the names and addresses for GSMC as set forth in Annex
II. The following names and addresses are added to Annex II of the Repurchase
Agreement under notices for Buyer:
Commerzbank AG, New York Branch
2 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: 000-000-0000
with a copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
4
(b) Seller agrees to send to Commerzbank copies of all notices
delivered to GSMC, as Buyer, under the Transaction Documents, provided, however,
the failure by Seller to provide such notices to Commerzbank shall not
constitute an Event of Default.
(c) All payments to Buyer (i.e., as of the date hereof, both GSMC
and Commerzbank) under the Repurchase Agreement shall continue to be made to the
account specified in Annex II to the Repurchase Agreement.
7. Continuing Effect. Except as expressly amended by this
Amendment, the Repurchase Agreement and the other Transaction Documents remain
in full force and effect in accordance with their respective terms, and are
hereby in all respects ratified and confirmed.
8. References to Repurchase Agreement. All references to the
Repurchase Agreement in any Transaction Document or in any other document
executed or delivered in connection therewith shall, from and after the
execution and delivery of this Amendment, be deemed a reference to the
Repurchase Agreement as amended hereby, unless the context expressly requires
otherwise.
9. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with the laws of the State of New York.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered in their names as of the date first above
written.
XXXXXXX XXXXX MORTGAGE COMPANY,
as a Buyer
By: Xxxxxxx Sachs Real Estate Funding
Corp.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
as Administrative Agent
By: Xxxxxxx Sachs Real Estate Funding
Corp.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
COMMERZBANK AG, NEW YORK BRANCH,
as a Buyer
By:/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
By:/s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
6
CAPITAL TRUST, INC., as Seller
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
7
