FIFTH AMENDMENT TO MASTER REPURCHASE AGREEMENT (Wachovia Transaction with NRFC WA Holdings, LLC)
EXECUTION
VERSION
FIFTH
AMENDMENT TO
(Wachovia
Transaction with NRFC WA Holdings, LLC)
THIS
FIFTH AMENDMENT TO MASTER REPURCHASE AGREEMENT,
dated
as of February 28, 2006 (this “Amendment
No. 5”),
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”),
that
certain Omnibus Amendment to Repurchase Documents and Joinder, dated as of
October 21, 2005 (“Omnibus
Amendment”),
and
that certain Fourth Amendment to Master Repurchase Agreement, dated as of
October 28, 2005 (“Amendment
No. 4”)
(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, Amendment No. 4 and this Amendment No.
5, 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. 5 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 definitions in Section 1(a)
of
Annex I
to the
Repurchase Agreement are hereby amended and restated in their entirety as
follows:
(1) “Eurodollar
Period:
With
respect to any Transaction, (i) initially, the period commencing on the
Purchase Date with respect to such Transaction and ending on the earlier of
(x)
the related Repurchase Date or (y) the first Payment Date following the
Purchase Date, and (ii) thereafter, each period commencing on the day
following the last day of the preceding Eurodollar Period applicable to such
Transaction and ending on the earliest of (x) the related Repurchase Date,
(y) the date that is one-month thereafter, or (z) the Facility
Maturity Date.”
(2) “Maximum
Amount:
Means
(a) during the Temporary Increase Period, $400,000,000 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, $400,000,000; 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.”
(3) “Payment
Date:
The
1st
day of
each calendar month, or, if such day is not a Business Day, the next Business
Day.”
(4) “Temporary
Increase Amount:
$250,000,000.”
(b) Section 24
of
Annex I
to the
Repurchase Agreement is hereby amended and restated as follows:
“Section 24 Temporary
Increase Period.
During
the Temporary Increase Period, (a) with respect to Mortgage Assets that are
eligible for the CDO Securitization and that the Buyer has agreed to purchase
(other than Over-Advance Assets), the Seller may elect, on or before the related
Purchase Date by written notice to the Buyer, the Advance Rates and the Pricing
Spreads reflected on Schedule 1
to
Amendment No. 3 (collectively, the “Ramp-Up
Pricing”)
in
lieu of the Advance Rate and Pricing Spreads contained in the Fee Letter that
are otherwise applicable to such Mortgage Assets (each such Purchased Asset,
a
“Ramp-Up
Asset”),
(b) the Unused Fee shall not accrue on the unused portion of the Temporary
Increase Amount (but it shall accrue on the unused portion of the Maximum Amount
in effect prior to Amendment No. 2 (i.e., $150,000,000) subject to the
terms of the Fee Letter) and (c) a commitment fee shall be payable by the Seller
to the Buyer on the Temporary Increase Amount only in accordance with
clause (b)(ii)
of the
second to last sentence of this Section 24.
In the
event the Seller elects the Ramp-Up Pricing for any Purchased Asset and any
such
Ramp-Up Assets are not repurchased by the Seller and sold into the CDO
Securitization on or before the Temporary Increase Expiration Date, (i) the
Ramp-Up Pricing shall cease to be effective with respect to each such Purchased
Asset from and after the Temporary Increase Expiration Date and, thereafter,
the
Advance Rate and Pricing Spread for each such Purchased Asset shall be the
applicable Pricing Spread and Advance Rate set forth in the Fee Letter and
(ii) the Seller shall, on or before the Temporary Increase Expiration Date,
make principal payments to the Buyer as necessary so that the Purchase Price
outstanding for each such Ramp-Up Asset is equal to or less than the Purchase
Price based on the applicable Advance Rate set forth in the Fee Letter. On
or
before the Temporary Increase Expiration Date, the Seller shall either
(a) pay to the Buyer the aggregate outstanding Temporary Increase
Indebtedness, any accrued Price Differential thereon and any related Breakage
Costs or (b) provided the CDO Securitization has not closed, (i) the
Seller shall pay to the Buyer on the Temporary Increase Expiration Date a
commitment fee in the amount of the product of the Temporary Increase Amount
and
00 xxxxx xxxxxx, (xx) the Maximum Amount shall remain at $400,000,000
subject to the definition thereof, and (iii) the Unused Fee shall commence
accruing based on the full amount of the Maximum Amount specified in the
preceding clause (b)(ii)
subject
to the terms of the Fee Letter. Notwithstanding the Buyer’s agreement to this
Amendment No. 5, including, without limitation, the preceding sentence, the
Buyer, has, retains and does not waive any of its rights and/or benefits under
the Repurchase Documents, including without limitation, the ability to determine
at any time the Asset Value of one or more Purchased Assets.”
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. 5. This
Amendment No. 5 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. 5, 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. 5, 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. 5 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. 5;
(d) this
Amendment No. 5 has been duly executed and delivered by it;
(e) this
Amendment No. 5, as well as each of the Repurchase Documents as modified by
this Amendment No. 5, 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. 5; 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, 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. 5 is subject to the following
conditions precedent: (i) delivery to the Buyer of this Amendment
No. 5 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.
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
4
Section
6. Miscellaneous.
(a) This
Amendment No. 5 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. 5 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. 5 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. 5 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. 5 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT NO. 5 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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
5
IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 5 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 Xxxxxxx | ||
| Name: Xxxxxx Xxxxxxx | ||
| Title: Executive Vice President | ||
| 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
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||
|
Xxxxxx
X. Xxxxxxx
|
||
|
Facsimile
No:
|
(000)
000-0000
|
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|
(000)
000-0000
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|
Confirmation
No.:
|
(000)
000-0000
|
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|
(000)
000-0000
|
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|
(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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-1
| THE SELLERS (cont.): | NRFC WA HOLDINGS II, LLC, | |
| a Delaware limited liability company | ||
| By: /s/ Xxxxxx Xxxxxxx | ||
| Name: Xxxxxx Xxxxxxx | ||
| Title: Executive Vice President | ||
| 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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-2
| THE GUARANTOR: | NORTHSTAR REALTY FINANCE CORP., | |
| a Maryland corporation | ||
| By: /s/ Xxxxxx Xxxxxxx | ||
| Name: Xxxxxx Xxxxxxx | ||
| Title: Executive Vice President | ||
| 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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-3
| THE BUYER: | WACHOVIA BANK, NATIONAL | |
| ASSOCIATION, a national banking association | ||
| By: /s/ Xxx Xxxxxx | ||
| Name: Xxx Xxxxxx | ||
| Title: Vice President | ||
|
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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-4
CONSENTED TO BY:
| THE PLEDGOR: | NRFC SUB–REIT CORP., | |
| a Maryland corporation | ||
| By: /s/ Xxxxxx Xxxxxxx | ||
| Name: Xxxxxx Xxxxxxx | ||
| Title: Executive Vice President | ||
|
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]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-5
CONSENTED
TO BY:
| THE CUSTODIAN: | XXXXX FARGO BANK, NATIONAL ASSOCIATION | |
| By: /s/ Xxxxxxx Xxxxxxxxxxxx | ||
| Name: Xxxxxxx Xxxxxxxxxxxx | ||
| Title: Corporate Trust Officer | ||
|
Xxxxx
Fargo Bank, National Association
|
||
|
CMBS
Department
|
||
|
0000
00xx
Xxxxxx XX
|
||
|
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
||
| Attention: | Xxxx Xxxxxxxx, | |
| Assistant Vice President | ||
| Facsimile No.: | (000) 000-0000 | |
| Confirmation No.: | (000) 000-0000 | |
[SIGNATURES
CONTINUED ON FOLLOWING PAGE]
Amendment
No. 5 to Master Repurchase Agreement
(Wachovia/NorthStar)
S-6
| THE SWAP COUNTERPARTY: | WACHOVIA BANK, NATIONAL | |
| ASSOCIATION, a national banking association | ||
| By: /s/ Xxxxxx X. Xxxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: Director | ||
|
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 | |
Amendment
Xx. 0 xx Xxxxxx Xxxxxxxxxx Xxxxxxxxx
(Xxxxxxxx/XxxxxXxxx)
X-0
