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EXECUTION VERSION
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THIRD AMENDMENT TO
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MASTER REPURCHASE AGREEMENT
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(WACHOVIA TRANSACTION WITH NRFC WA HOLDINGS, LLC)
THIS THIRD AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of
September 30, 2005 (this "Amendment No. 3"), is entered into by and among NRFC
WA HOLDINGS, LLC, as the seller (in such capacity, the "Seller"), 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"), ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION (f/k/a ▇▇▇▇▇ 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
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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") and that certain Second Amendment to Master Repurchase
Agreement, dated as of September 20, 2005 ("Amendment No. 2") (as such Master
Repurchase Agreement is amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time, including pursuant to
Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ and this Amendment No. 3, 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. 3 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.
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(a) The following new definitions are added to Section 1(a) of
Annex I to the Repurchase Agreement:
(1) "CDO Closing Date: The Business Day on which certain
Purchased Assets are repurchased by the Seller and sold into the
CDO Securitization."
(2) "Temporary Increase Amount: $200,000,000."
(3) "Ramp-Up Pricing: Defined in Section 24 of Annex I to the
Repurchase Agreement."
(b) The following definitions in Section 1(a) of Annex I to the
Repurchase Agreement are hereby amended and restated as follows:
(1) "Temporary Increase Expiration Date: The earlier of (a)
six (6) months from the date of this Amendment No. 3 (or, if such
day is not a Business Day, the next succeeding Business Day) and
(b) the CDO Closing Date."
(2) "Temporary Increase Period: The period of time from the
date of this Amendment No. 3 to and including the Temporary
Increase Expiration Date."
(3) "Temporary Increase Indebtedness: The aggregate amount of
the Purchase Price outstanding that exceeds $150,000,000."
(4) "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, on and after the Facility
Maturity Date, the Maximum Amount shall mean the aggregate
Purchase Price outstanding for all Transactions."
(c) Section 24 of Annex I to the Repurchase Agreement is hereby
amended and restated as follows:
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"Section 24 Temporary Increase Period.
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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 this 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) 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 ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, (▇▇) the Maximum Amount shall remain at $350,000,000
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 (ii) subject to the terms of
the Fee Letter. Notwithstanding the Buyer's agreement to this
Amendment No. 3, 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. AMENDMENT TO CUSTODIAL AGREEMENT.
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(a) Subsection 3.1(e)(i) is amended by deleting the words "a copy of"
at the beginning of this Subsection.
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SECTION 3. REPURCHASE DOCUMENTS IN FULL FORCE AND EFFECT AS MODIFIED.
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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. 3. This Amendment No. 3 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. 3, as though such terms and conditions were set forth
herein.
SECTION 4. REPRESENTATIONS.
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Each of the Seller, the Guarantor and the Pledgor represents and
warrants, as of the date of this Amendment No. 3, 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. 3 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. 3;
(d) this Amendment No. 3 has been duly executed and delivered by it;
(e) this Amendment No. 3, as well as each of the Repurchase Documents
as modified by this Amendment No. 3, 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. 3; 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 ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ Documents or any other instrument, document and/or agreement
described
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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.
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The effectiveness of this Amendment No. 3 is subject to the following
conditions precedent: (i) delivery to the Buyer of this Amendment No. 3 duly
executed by each of the parties hereto; (ii) delivery to the Buyer of an Opinion
of Counsel with respect to the enforceability of this Amendment No. 3 on behalf
of the Seller, the Pledgor and the Guarantor; (iii) payment of all reasonable
legal fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, as counsel to the Buyer, in
the amount to be set forth on a separate invoice; and (iv) such other documents,
agreements or certifications as the Buyer may reasonably require.
SECTION 6. MISCELLANEOUS.
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(a) This Amendment No. 3 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. 3 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. 3 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. 3 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. 3 AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT NO. 3 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.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER: NRFC WA HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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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.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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THE GUARANTOR: NORTHSTAR REALTY FINANCE CORP.,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
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Address for Notices:
NorthStar Realty Finance Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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THE BUYER: WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: Associate
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Wachovia Bank, National Association
One Wachovia Center, Mail Code: NC0166
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CONSENTED TO BY:
THE PLEDGOR: NRFC SUB-REIT CORP.,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
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NRFC Sub-REIT Corp.
c/o NorthStar Realty Finance Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CONSENTED TO BY:
THE CUSTODIAN: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Title: Corporate Trust Officer
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▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Assistant Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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THE SWAP COUNTERPARTY: WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director
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Wachovia Bank, National Association
One Wachovia Center, Mail Code: NC0166
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior
Vice President, Risk
Management
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE 1
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RAMP-UP PRICING
Advance Rate: 75%
Pricing Spread: 95 basis points; provided however, during the continuance of an
Event of Default, the Pricing Spread for each Transaction shall automatically be
increased by an additional 500 basis points.
Schedule 1
