SECOND OMNIBUS AMENDMENT TO REPURCHASE DOCUMENTS (Wachovia Transaction with the NorthStar Entities)
EXECUTION
VERSION
SECOND
OMNIBUS AMENDMENT TO
REPURCHASE
DOCUMENTS
(Wachovia
Transaction with the NorthStar Entities)
THIS
SECOND OMNIBUS AMENDMENT TO REPURCHASE DOCUMENTS,
dated
as of June 6, 2006 (this “Second
Omnibus Amendment”),
is
entered into by and among NRFC
WA HOLDINGS, LLC,
as an
existing seller (together with its successors and permitted assigns,
“NRFC”)
and
NRFC
WA HOLDINGS II, LLC,
as an
existing seller (together with its successors and permitted assigns,
“NRFC II”
and,
collectively with NRFC, the “Existing
Sellers”),
NRFC
WA HOLDINGS III, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC III”),
NRFC
WA HOLDINGS IV, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC IV”),
NRFC
WA HOLDINGS V, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC V”),
NRFC
WA HOLDINGS VI, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC VI”),
NRFC
WA HOLDINGS VII, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC VII”),
NRFC
WA HOLDINGS VIII, LLC,
as a
new seller (together with its successors and permitted assigns, “NRFC VIII”)
(the
Existing Sellers and NRFC III, NRFC IV, NRFC V, NRFC VI,
NRFC VII and NRFC VIII are collectively referred to herein as the
“Sellers”),
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as the
buyer (in such capacity, together with its successors and assigns, the
“Buyer”),
NORTHSTAR
REALTY FINANCE CORP.
(together with its successors and permitted assigns, “NorthStar”),
as
the existing guarantor (together with its successors and permitted assigns,
the
“Existing
Guarantor”)
and
NORTHSTAR
REALTY FINANCE L.P.,
as a
new guarantor (together with its successors and permitted assigns, the
“Operating
Partnership”
and
together with the Existing Guarantor, the “Guarantors”),
NRFC
SUB-REIT CORP.,
as the
pledgor (together with its successors and permitted assigns, the “Pledgor”),
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
(f/k/a
▇▇▇▇▇ Fargo Bank Minnesota, N.A.), as the custodian (in such capacity, together
with its successors and permitted assigns, the “Custodian”),
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as the
swap counterparty (in such capacity, together with its successors and assigns,
the “Swap
Counterparty”)
and as
the bank under the Account Agreement and the Securities Account Control
Agreement (in such capacity, together with its successors and assigns, the
“Bank”).
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
Existing Sellers, the Existing 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”),
that
certain Fourth Amendment to Master Repurchase Agreement, dated as of October
28,
2005 (“Amendment
No. 4”)
and
that certain Fifth Amendment to Master Repurchase Agreement, dated as of
February 28, 2006 (“Amendment
No. 5”)
(as
such Master Repurchase Agreement is amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time,
including pursuant to Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇
▇▇. ▇, the Omnibus Amendment, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇
and this Second Omnibus Amendment, the “Repurchase
Agreement”);
WHEREAS,
the
Existing Sellers and the Existing Guarantor desire to make certain modifications
to the Repurchase Documents, including, without limitation, adding additional
Sellers and an additional Guarantor;
WHEREAS,
the
Buyer is willing to modify the Repurchase Documents as requested by the Existing
Sellers and the Existing Guarantor on the terms and conditions specified herein;
and
WHEREAS,
the
Pledgor, the Custodian, the Swap Counterparty and the Bank are parties to other
Repurchase Documents and related agreements that may be affected, directly
or
indirectly, by this Second Omnibus Amendment and desire to evidence their
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. 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) “Advance
Rate:
With
respect to a Mortgage Asset of a certain Class and, as applicable, the
applicable Type of Underlying Mortgaged Property, the “Maximum Advance Rate” set
forth in the applicable column on Schedule 1
to the
Fee Letter or, with respect to Preferred Equity Interests and Construction
Loans, the “Advance Rate” set forth in the related Confirmation.”
(2) “Aggregate
Unpaids:
At any
time, an amount equal to the sum of the aggregate Purchase Price outstanding
for
all Transactions, the aggregate Price Differential outstanding, the aggregate
Margin Deficits outstanding, Breakage Costs (if any), Increased Costs (if any),
Taxes (if any), Additional Amounts (if any), Late Payment Fees (if any), any
fee
due under any fee letter or the Repurchase Documents (including, without
limitation, the Fee Letter and the Custodial Fee Letter) and all other amounts
owed by the Sellers or any other Person to the Buyer, any Affected Party or
any
other Person under or with respect to this Repurchase Agreement, the Repurchase
Documents or any Transaction entered into pursuant thereto (whether due or
accrued).”
2
(3) “Asset
Value:
As of
any date of determination for each Eligible Asset or Purchased Asset, as
applicable, with respect to a Mortgage Asset or Purchased Asset, as applicable,
of a certain Class, the lesser of (a) (i) for each Mortgage Asset or
Purchased Asset, as applicable, other than as provided in clause (a)(ii)
of this
definition, the product of the Book Value of such Mortgage Asset or Purchased
Asset, as applicable, times
the
Advance Rate applicable thereto and (ii) subject to Section 26
of
Annex I
to this
Agreement, for each Over-Advance Purchased Asset prior to an Event of Default,
the Book Value of such Over-Advance Purchased Asset and (b) (i) for
each Mortgage Asset or Purchased Asset, as applicable, other than as provided
in
clause (b)(ii)
of this
definition, the product of the Market Value of such Mortgage Asset or Purchased
Asset, as applicable, times
the
Advance Rate applicable thereto and (ii) subject to Section 26
of
Annex I
to this
Agreement, for each Over-Advance Purchased Asset prior to an Event of Default,
the Market Value of such Over-Advance Purchased Asset, in all cases under
clauses (a)
and
(b)
of this
definition taking into account the Maximum LTV percentages, applicable to such
Mortgaged Asset or Purchased Asset, as applicable, set forth on Schedule 1
to the
Fee Letter (or, in the case of Preferred Equity Interests and Construction
Loans, to the extent applicable, as set forth in the related Confirmation);
provided,
however,
the
Asset Value may be reduced in the Buyer’s discretion by an amount determined by
the Buyer in its discretion (which amount may, in the Buyer’s discretion, be
reduced to zero (0)), with respect to each Mortgage Asset or Purchased
Asset, as applicable (A) in respect of which one (1) or more
eligibility requirements set forth in Schedule 1
to this
Repurchase Agreement is not satisfied in any respect (assuming each such
criteria is determined as of the date the Asset Value is determined), in each
case without regard to any Seller’s knowledge or lack of knowledge thereof and
without regard to any Seller’s representations or warranties with respect to its
knowledge or lack of knowledge thereof, and, in the Buyer’s determination in its
discretion, the same impacts, impairs or affects the Market Value or Book Value
of such Mortgage Asset or Purchased Asset, (B) in respect of which the
complete Mortgage Asset File has not been delivered to the Custodian within
the
time period required by the Custodial Agreement, (C) which is a Table
Funded Purchased Asset in respect of which the Mortgage Asset File has not
been
delivered to the Custodian within three (3) Business Days following the
Purchase Date, or (D) which has been released from the possession of the
Custodian under the Custodial Agreement to a Seller or an Affiliate for a period
in excess of twenty (20) calendar days.”
(4) “Bridge
Loan:
A
performing Whole Loan that is otherwise an Eligible Asset except that the
Underlying Mortgaged Property is not stabilized or is otherwise considered
to be
in a transitional state, which exceptions shall be disclosed in writing to
the
Buyer and such exceptions must be acceptable to the Buyer in its discretion,
which acceptance may, in the Buyer’s discretion, be conditioned on additional
terms, conditions and requirements with respect to such Bridge Loan;
provided,
however,
the
debt and equity fundings for each Bridge Loan must be sufficient to finance
100%
of the completion of the improvements to the related Underlying Mortgaged
Property or there must exist sufficient net operating income or interest
reserves or guaranties to cover the debt service for all Indebtedness related
to
the Underlying Mortgaged Property.”
3
(5) “CDO
Closing Date:
The
Business Day occurring after the date of this Second Omnibus Amendment on which
some or all of the Purchased Assets are repurchased by the Sellers and sold
into
the CDO Securitization Transaction.”
(6) “CDO
Securitization Transaction:
A CDO
securitization transaction involving some or all of the Purchased Assets engaged
in by NStar Real Estate CDO VIII.”
(7) “Class:
With
respect to a Mortgage Asset, such Mortgage Asset’s classification as a Whole
Loan, a Junior Interest, a Mezzanine Loan, a Bridge Loan, a CMBS Security,
a CTL
Loan, a Subordinate CTL Loan, Senior Secured Bank Debt or a Preferred Equity
Interest.”
(8) “Construction
Loan:
A
performing Whole Loan, the Underlying Mortgaged Property for which has received
all necessary entitlements and approvals to develop the Underlying Mortgaged
Property and construct improvements thereon in a manner consistent with the
applicable Seller’s representations to the Buyer regarding such construction,
which information shall be set forth in the related Confirmation, such loan
and
the documents related thereto are otherwise acceptable to the Buyer in its
discretion and all construction related documents are delivered to the Custodian
as a part of the Mortgage Asset File for such Whole Loan.”
(9) “Debt
Service Coverage Ratio
or
DSCR:
With
respect to any Mortgage Asset
or
Purchased Asset, as applicable, as
of any
date of determination, for the period of time to be determined by the
Buyer
in
its reasonable discretion (it
being
understood that it is the Buyer’s intent to make the determination based on the
period of twelve (12) consecutive complete calendar months preceding such
date (or, if such Mortgage Asset was originated less than twelve (12)
months from the date of determination, the number of months from the date of
origination),
the
ratio
of (a) the aggregate Net Cash Flow in respect of the Underlying Mortgaged
Properties relating to such Mortgage Asset
or
Purchased Asset, as applicable, for
such
period to (b) the sum of (i) the aggregate amount of all amounts due
for such period in respect of all Indebtedness that was outstanding from time
to
time during such period that is secured, directly or indirectly, by such
Underlying Mortgaged Properties (including, without limitation, by way of a
pledge of the equity of the owner(s) of such Underlying Mortgaged Properties)
or
that is otherwise owing by the owner(s) of such Underlying Mortgaged Properties,
including, without limitation, all scheduled principal and/or interest payments
due for such period in respect of each Mortgage Asset or Purchased Asset, as
applicable, that
is
secured or supported by such Underlying Mortgaged Properties plus
(ii) the amount of all Ground Lease payments to be made in respect of such
Underlying Mortgaged Properties during such period, as any of the foregoing
elements of DSCR may be adjusted by the Buyer as determined by the Buyer in
its
discretion; provided,
however,
that,
with
respect to Junior Interests, Mezzanine Loans, Bridge Loans, Preferred Equity
Interests and Subordinate CTL Loans that are also Junior Interests or Mezzanine
Loans, all
such
calculations shall be made taking into account any senior or pari
passu
debt or
other obligations, including debt or other obligations secured directly or
indirectly by the applicable Underlying Mortgaged Property; provided,
further,
however,
the
DSCR shall not be less than the Minimum DSCR.”
4
(10) “Defaulted
Mortgage Asset:
Any
Mortgage Asset (a) that is ninety (90) days or more delinquent or
(b) for which there is a non-monetary default (beyond any applicable notice
and cure period) under the related Mortgage Loan Documents (including, with
respect to Preferred Equity Interests, amounts that are not paid current for
the
relevant period under the terms of the Mortgage Loan Documents).”
(11) “Delinquent
Mortgage Asset:
A
Mortgage Asset that is thirty (30) or more days, but less than
ninety (90) days, delinquent under the related Mortgage Loan Documents
(including, with respect to Preferred Equity Interests, amounts that are not
paid current for the relevant period under the terms of the Mortgage Loan
Documents).”
(12) “Eligible
Asset:
A
Mortgage Asset that, as of any date of determination, (i) is not a Defaulted
Mortgage Asset or Delinquent Mortgage Asset; (ii) satisfies each of the
eligibility criteria set forth on Schedule 1
hereto
in all material respects; (iii) with respect to the portion of such
Mortgage Asset to be acquired by the Buyer, the funding obligations have been
satisfied in full and there is no unfunded commitment with respect thereto
(unless otherwise approved by the Buyer in its discretion); (iv) has been
approved in writing by the Buyer in its discretion; (v) has, to the extent
applicable, an LTV not in excess of the Maximum LTV; (vi) has, to the
extent applicable, a DSCR equal to or greater than the Minimum DSCR;
(vii) is not a loan to an operating business (other than a hotel);
(viii) the purchase of such Eligible Asset will not violate any applicable
Sub-Limit; (ix) the Underlying Mortgage Property and the Borrower and its
Affiliates are domiciled in the United States (unless otherwise approved by
the
Buyer subject to such additional terms and conditions as the Buyer may require
in its discretion); and (x) such Mortgage Asset is denominated and payable
in Dollars; provided,
however,
notwithstanding a Mortgage Asset’s failure to conform to the criteria set forth
above (including, without limitation, a Mortgage Asset with a single or split
rating by a Rating Agency), the Buyer may, in its discretion and subject to
such
terms, conditions and requirements and Advance Rate and Pricing Spread
adjustments as the Buyer may require in its discretion, designate in writing
any
such non-compliant Mortgage Asset as an Eligible Asset, which designation shall
not be deemed a waiver of the requirement that all other Purchased Assets and
all other Mortgage Assets submitted for purchase by the Buyer, whether existing
or in the future, must be Eligible Assets.”
5
(13) “Fee
Letter:
The
Amended and Restated Fee Letter, dated as of June 6, 2006, among the
Sellers and the Buyer, as
amended, modified, restated, replaced, waived, substituted, supplemented or
extended from time to time.”
(14) “Guarantor:
Individually and collectively, as the context may require, NorthStar Realty
Finance Corp., a Maryland corporation (together with its successors and
permitted assigns) and NorthStar Realty Finance L.P., a Delaware limited
partnership (together with its successors and permitted assigns), as joint
and
several guarantors under the Guaranty.”
(15) “Liquidity:
An
amount equal to the (a) sum of (without duplication) (i) the amount of
unrestricted cash and unrestricted Cash Equivalents, (ii) Availability
under this Agreement and (iii) the amount of Borrowing Capacity under the
Other Credit Facilities in the aggregate, less,
(b) amounts necessary to satisfy Margin Deficits under this Repurchase
Agreement and the facilities described under (a)(iii)
of this
definition of Liquidity.”
(16) “Loan-to
Value Ratio
or
LTV:
With
respect to any Mortgage Asset or Purchased Asset (other than any CMBS Security),
as applicable, as of any date of determination, the ratio of the outstanding
principal amount of such Mortgage Asset or Purchased Asset, as applicable,
to
the market value of the related Underlying Mortgaged Property at such time
(or,
in the case of the Bridge Loans, the cost of completion of the intended
improvements), as determined by the Buyer, (i) in connection with the
initial purchase of a Mortgage Asset only and to the extent a Current Appraisal
is available, based on the Current Appraisal, as the LTV may be adjusted by
the
Buyer as the Buyer determines in its discretion, and, (ii) in all other
cases, as the Buyer may determine in its discretion based on such sources of
information as the Buyer may determine to rely on in its discretion;
provided,
however,
that,
with respect to Junior Interests, Mezzanine Loans, Bridge Loans, Preferred
Equity Interests and Subordinate CTL Loans that are also Junior Interests or
Mezzanine Loans, all such calculations shall be made taking into account any
senior or pari
passu debt
or
other obligations, including debt or other obligations secured
directly or indirectly by the applicable Underlying Mortgaged Property;
provided,
further,
however,
the LTV
shall not exceed the Maximum LTV.”
6
(17) “Maximum
Amount:
Means
$200,000,000, provided that, during the Temporary Increase Period, upon the
written request of the Sellers, the Buyer may, in its discretion (and in all
cases subject to the Buyer obtaining internal credit approval), increase the
Maximum Amount one (1) or more times to an aggregate amount not to exceed
$500,000,000, which increase(s) shall be set forth in writing and acknowledged
by the Sellers and the Guarantors; provided,
however,
after
the Temporary Increase Period, (i) in the event Purchased Assets are
repurchased and sold into the CDO Securitization Transaction on or prior to
the
Temporary Increase Expiration Date and the Sellers repay 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,
the
Maximum Amount shall be $200,000,000 and (ii) in the event the Sellers do
not satisfy clause (i)
of this
definition, the Maximum Amount shall be the sum of $200,000,000 and the highest
Temporary Increase Amount, which sum shall not exceed $500,000,000; provided,
further,
however,
on and
after the Facility Maturity Date, the Maximum Amount shall mean the aggregate
Purchase Price outstanding for all Transactions.”
(18) “Maximum
LTV:
With
respect to any Eligible Asset (other than any CMBS Security) at any time, the
Loan-to-Value Ratio for the related Underlying Mortgaged Property set forth
on
Schedule 1
to the
Fee Letter under the heading “End LTV” or “End LTC” (or, in the case of
Preferred Equity Interests and Construction Loans to the extent applicable,
as
set forth in the related Confirmation under the same or similar headings;
provided,
however,
in no
event shall the Maximum LTV for a Construction Loan exceed 85%) for the
applicable Class of such Mortgage Asset and, as applicable, the applicable
Type
of Underlying Mortgaged Property; provided,
however,
the
Maximum LTV shall take into account any senior or pari
passu debt
or
other obligations,
including debt or other obligations secured
directly or indirectly by the applicable Underlying Mortgaged
Property.”
(19) “Minimum
DSCR:
With
respect to any Mortgage Asset or Purchased Asset (other than any CMBS Security),
as applicable, at any time, the DSCR for the related Underlying Mortgaged
Property set forth on Schedule 1
to the
Fee Letter under the heading “In-Place DSCR” (or, in the case of Preferred
Equity Interests and Construction Loans to the extent applicable, as set forth
in the related Confirmation under the same or similar headings; provided,
however,
in no
event shall the Maximum LTV for a Construction Loan exceed 85%) for the
applicable Class of such Mortgage Asset and, as applicable, the applicable
Type
of Underlying Mortgaged Property; provided,
however,
the
Minimum DSCR shall take into account any senior or pari
passu debt
or
other obligations,
including debt or other obligations
secured
directly or indirectly by the applicable Underlying Property.”
7
(20) “Mortgage
Asset:
A Whole
Loan, a Junior Interest, a Mezzanine Loan, a Bridge Loan, a CMBS Security,
a CTL
Loan, a Subordinate CTL Loan, Senior Secured Bank Debt or a Preferred Equity
Interest, (i) the Underlying Mortgaged Property for which is included in
the categories for Types of Mortgage Assets, (ii) that is listed on a
Confirmation and (iii) for which the Custodian has been instructed by a
Seller to hold the related Mortgage Asset File for the Buyer pursuant to the
Custodial Agreement; provided,
however,
Mortgage Assets shall not include any Retained Interest (if any) (unless
approved by the Buyer in its discretion).”
(21) “Pricing
Rate:
With
respect to each Transaction, at any date of determination, a rate per annum
equal to the sum of (a) the applicable Rate on such date plus
(b) the applicable Pricing Spread for such Eligible Asset on such date, as
such Pricing Spreads are set forth in the Fee Letter (or, in the case of the
Preferred Equity Interests and Construction Loans, as set forth in the related
Confirmation).”
(22) “Pricing
Spread:
The
financing spreads set forth on Schedule 1
to the
Fee Letter (or, in the case of the Preferred Equity Interests and Construction
Loans, as set forth in the related Confirmation) corresponding to the Classes
and, as applicable, Types of Mortgage Assets set forth therein; provided,
however,
from
and after an Event of Default, the Pricing Spread for each Transaction shall
automatically be increased by an additional 500 basis points above and
beyond the applicable Pricing Spread set forth in the Fee Letter (or, in the
case of the Preferred Equity Interests and Construction Loans, as set forth
in
the Confirmation).”
(23) “Repurchase
Date:
The
earlier of (i) the Facility Maturity Date, (ii) the date that is 364
days from the Purchase Date or (iii) the Business Day on which any Seller
is to repurchase the Purchased Assets from the Buyer (a) as specified by
any Seller and agreed to by the Buyer in the related Confirmation or (b) if
a Transaction is terminable by any Seller on demand, the date determined in
accordance with Paragraph 3(a)(ix)
of
this
Repurchase Agreement, as such dates in clauses (i),
(ii)
and
(iii)
above
may be modified by application of the provisions of Paragraph 3
or
11
of this
Repurchase Agreement.”
(24) “Repurchase
Documents:
This
Repurchase Agreement, the Custodial Agreement, the Pledge and Security
Agreement, the Account Agreement, the Security Account Control Agreement, the
Fee Letter, the Guaranty, the Assignments, the Confirmations, the Custodial
Fee
Letter, all UCC financing statements (and amendments thereto) filed pursuant
to
the terms of this Repurchase Agreement or any other Repurchase Document, the
Preferred Equity Pledge and Security Agreement, any joinder agreement executed
by a Seller and any additional document, certificate or agreement, the execution
of which is necessary or incidental to or desirable for performing or carrying
out the terms of the foregoing documents.”
8
(25) “Seller:
Individually and collectively as the context requires, NRFC WA Holdings, LLC,
,
a Delaware limited liability company, NRFC WA Holdings II, LLC, a Delaware
limited liability company, NRFC WA Holdings III, LLC, a Delaware limited
liability company, NRFC WA Holdings IV, LLC, a Delaware limited liability
company, NRFC WA Holdings V, LLC, a Delaware limited liability company,
NRFC WA Holdings VI, LLC, a Delaware limited liability company, NRFC WA
Holdings VII, LLC, a Delaware limited liability company, NRFC WA
Holdings VIII, LLC, a Delaware limited liability company, and any other
Person that becomes a party to the Repurchase Documents as a Seller, in such
case together with their successors and permitted assigns. Each Seller shall
be
jointly and severally liable under the Repurchase Documents.”
(26) “Sub-Limit:
With
respect to the characteristics of the Mortgage Assets or Purchased Assets,
as
applicable:
(a) the
aggregate Purchase Price for all outstanding Transactions involving Mezzanine
Loans shall not exceed 67% of the Maximum Amount;
(b) the
aggregate Purchase Price for all outstanding Transactions involving CTL Loans
and/or Subordinate CTL Loans shall not exceed 50% of the Maximum
Amount;
(c) the
aggregate Purchase Price for all outstanding Transactions involving Ground
Leases shall not exceed 35% of the Maximum Amount;
(d) the
aggregate Purchase Price for all outstanding Transactions involving hotels
shall
not exceed 45% of the Maximum Amount;
(e) the
aggregate Purchase Price for all outstanding Transactions involving Construction
Loans shall not exceed 25% of the Maximum Amount;
(f) the
aggregate Purchase Price for all outstanding Transactions involving Underlying
Mortgage Properties located in the same metropolitan statistical area shall
not
exceed 50% of the Maximum Amount;
(g) the
aggregate Purchase Price for any single outstanding Transaction or for multiple
Transactions to a single Borrower (including any Affiliate of a Borrower) shall
not exceed 40% of the Maximum Amount;
(h) the
aggregate Purchase Price for all outstanding Transactions involving CMBS
Securities or Senior Secured Bank Debt rated BB- or below by any Rating Agency
shall not exceed 25% of the Maximum Amount;
9
(i) the
aggregate Purchase Price for all outstanding Transactions involving Preferred
Equity Interests shall not exceed 25% of the Maximum Amount; and
(j) the
aggregate Over-Advance Purchase Price for all Over-Advance Purchased Assets
shall not exceed $50,000,000.”
(27) “Temporary
Increase Amount:
An
amount determined by the Buyer in its discretion, but in any event, not greater
than $300,000,000.”
(28) “Temporary
Increase Expiration Date:
The
earlier of (a) March 23, 2007 (or, if such day is not a Business Day,
the next succeeding Business Day) and (b) the CDO Closing
Date.”
(29) “Temporary
Increase Indebtedness:
The
amount of the Purchase Price outstanding that exceeds
$200,000,000.”
(30) “Temporary
Increase Period:
The
period of time from the date of this Second Omnibus Amendment to and including
the Temporary Increase Expiration Date.”
(31) “Type:
With
respect to a Mortgage Asset, the classification of the Underlying Mortgaged
Property as one of the following: multifamily, mobile home park, retail, office,
industrial, hotel, self-storage facility, condominium conversions and entitled
land.”
(32) “Underlying
Mortgaged Property:
(a) In the case of a Whole Loan, the Mortgaged Property securing the Whole
Loan, (b) in the case of a Junior Interest, the Mortgaged Property securing
such Junior Interest (if the Junior Interest is of the type described in
clause (b)
of the
definition thereof), or the Mortgaged Property securing the mortgage loan in
which such Junior Interest represents a junior participation (if the Junior
Interest is of the type described in clause (a)
of the
definition thereof), (c) in the case of a Mezzanine Loan or a Junior
Interest in a Mezzanine Loan, the Mortgaged Property that secures the senior
mortgage loan, (d) in the case of a Bridge Loan, CTL Loan or Subordinate
CTL Loan, the Mortgaged Property securing the Whole Loan, Junior Interest or
Mezzanine Loan, as applicable, (e) in the case of a CMBS Security, the
Mortgaged Properties backing such CMBS Securities, (f) in the case of
Senior Secured Bank Debt, the Mortgaged Property, if any, securing such Senior
Secured Bank Debt and (g) in the case of a Preferred Equity Interest, the
Mortgaged Property owned directly or indirectly by the Preferred Equity
Grantor.”
(33) “Underwriting
Package:
With
respect to any Mortgage Asset (other than a CMBS Security), the Underwriting
Package shall include, to the extent applicable, (i) a copy of the Current
Appraisal or, if unavailable, any other recent appraisal, (ii) the current
rent roll, (iii) a minimum of two (2) years of property level
financial statements to the extent available, (iv) the current financial
statements of the Borrowers under the Mortgage Asset, and, if such Mortgage
Asset is not a Whole Loan, the Borrower under the Commercial Real Estate Loan
to
the extent provided to or reasonably available to the applicable Seller upon
request, (v) the loan documents, Governing Documents and title
commitment/policy to be included in the Mortgage Asset File, together with
copies of any appraisals, environmental reports, studies or assessments (to
include, at a minimum, a phase I report), evidence of zoning compliance,
property management agreements, assignments of property management agreements,
contracts, licenses and permits, in each case to the extent in the a Seller’s
possession or reasonably available to the a Seller and, if the Mortgage Asset
is
purchased by the Buyer, assignments of such documents by the Seller in blank
to
the extent covered by assignments in blank delivered to the Custodian,
(vi) any financial analysis, site inspection, market studies, environmental
reports and any other diligence conducted by or provided to the a Seller and
(vii) such further documents or information as the Buyer may reasonably
request. With respect to any CMBS Security, the Underwriting Package shall
consist of, to the extent applicable, (i) the related prospectus or
offering circular, (ii) all structural and collateral term sheets and all
other computational or other similar materials provided to the a Seller in
connection with its acquisition of such CMBS Security, (iii) all
distribution date statements issued in respect thereof during the immediately
preceding twelve (12) months (or, if less, since the date such CMBS
Security was issued), (iv) all monthly reporting packages issued in respect
of such CMBS Security during the immediately preceding twelve (12) months
(or, if less, since the date such CMBS Security was issued), (v) all Rating
Agency pre-sale reports, (vi) all asset summaries and any other due
diligence materials, including, without limitation, reports prepared by third
parties, provided to the a Seller in connection with its acquisition of such
CMBS Security, and (vii) such further documents or information as the Buyer
may reasonably request.”
10
(34) “Whole
Loan:
A
performing Commercial Real Estate whole loan (including, without limitation,
a
Construction Loan) secured by a first priority perfected security interest
in
the Underlying Mortgaged Property.”
(b) Terms
defined in this Second Omnibus Amendment and any other amendment are
incorporated into and made a part of the Repurchase Documents. In addition,
the
following new definitions are added to Section 1(a)
of
Annex I
to the
Repurchase Agreement as follows:
(1) “BofA
Facility:
That
certain facility evidenced by the Master Loan, Guarantee and Security Agreement,
dated as of September 28, 2005, among NorthStar Realty Finance L.P.,
NorthStar Realty Finance Corp., NS Advisors LLC, the other entities listed
as
guarantors on the signature pages thereof and Bank of America, N.A. (as amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from
time to time).”
11
(2) “Borrowing
Capacity:
The
ability to obtain draws or advances in the discretion of a Guarantor or any
Affiliate or Subsidiary of a Guarantor in Dollars and within two (2)
Business Days of the request therefor and to use or apply such draws or advances
to repay amounts under the Repurchase Documents or other
Indebtedness.”
(3) “Maximum
Aggregate Over-Advance Purchase Price Amount:
$50,000,000.”
(4) “Other
Credit Facilities:
Any
warehouse, repurchase, loan or credit facility provided by a national banking
association or any syndicate thereof (or any other financial institution
approved by the Buyer in its reasonable discretion) to a Guarantor or any
Affiliate or Subsidiary of a Guarantor, including, without limitation, the
BofA
Facility.”
(5) “Over-Advance
Advance Rate:
Defined
in the Fee Letter.”
(6) “Over-Advance
Draw Fee:
Defined
in the Fee Letter.”
(7) “Over-Advance
Pricing Spread:
Defined
in the Fee Letter.”
(8) “Over-Advance
Purchase Price:
The
amount of the Purchase Price paid by the Buyer for an Over-Advance Purchased
Asset minus
the
Purchase Price that would have been paid for such Purchased Asset applying
the
Advance Rate otherwise applicable to such Purchased Asset without giving effect
to this Second Omnibus Amendment.”
(9) “Over-Advance
Purchased Asset:
Defined
in Section 26
of
Annex
I
to the
Repurchase Agreement.”
(10) “Over-Advance
Repayment Date:
Defined
in the Fee Letter.”
(11) “Permitted
Indebtedness:
With
respect to Preferred Equity Interests, Indebtedness that is permitted under
the
related Mortgage Loan Documents and disclosed in writing to the Buyer in a
Transaction Request and a Confirmation.”
(12) “Preferred
Equity Grantor:
The
entity in which a Preferred Equity Interest represents an
investment.”
(13) “Preferred
Equity Interest:
The
entire Capital Stock representing the preferred equity interest in an entity
that owns directly or indirectly Commercial Real Estate, including, but not
limited to, all equity interests representing a dividend on any of the Capital
Stock of the Preferred Equity Grantor or representing a distribution or return
of capital upon or in respect of the Capital Stock of the Preferred Equity
Grantor, in each case as it relates to a Preferred Equity Interest; provided,
however,
(i) such Preferred Equity Interest must contain a synthetic maturity
feature acceptable to the Buyer in its sole and absolute discretion,
(ii) the Buyer’s funding of the Preferred Equity Interest is subject to
regulatory and compliance criteria, (iii) the Buyer reserves the right in
its reasonable discretion to require that each Preferred Equity Interest be
acquired by and transferred to the Buyer by a special purpose entity as a
co-Seller under the Agreement and for the co-Seller to execute the Buyer’s then
current form of joinder agreement as a condition to the purchase of the
Preferred Equity Interest and (iv) the Preferred Equity Interest is
structured so as to avoid consolidation of the Preferred Equity Interest and
the
other equity interests in the Preferred Equity Grantor, as required by customary
legal and GAAP accounting requirements applicable to the Seller and the Buyer.
All references to, and calculations required to be made in respect of, any
principal and/or interest associated with any Preferred Equity Interest shall
be
deemed to refer to the face amount of such Preferred Equity Interest and the
preferred return or yield (however such terms are denominated, as set forth
in
the related Mortgage Loan Documents), whether payable or accrued.”
12
(14) “Preferred
Equity Interest Documents:
The
related Governing Documents of the Preferred Equity Grantor together with any
certificate, instrument or other tangible evidence of the Capital Stock in
the
Preferred Equity Grantor.”
(15) “Preferred
Equity Pledge and Security Agreement:
The
Amended and Restated Preferred Equity Interest Pledge and Security Agreement,
dated as of even date with this Second Omnibus Amendment, between the Sellers
and Buyer relating to the Preferred Equity Interests, as such agreement is
amended, modified, waived, supplemented, extended, restated or replaced from
time to time.”
(16) “Temporary
Ramp-Up Asset:
Defined
in Section 24
of
Annex I
to the
Repurchase Agreement.”
(17) “Temporary
Ramp-Up Pricing Terms:
Defined
in the Fee Letter.”
(c) The
third
to the last sentence of Paragraph 6(a)(ii)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“For
the
avoidance of doubt and not by way of limitation of the foregoing, (A) each
Purchased Item, including all Income related thereto, secures the obligations
of
each Seller with respect to all other Transactions and the obligations with
respect to all other Purchased Items, including those Purchased Assets that
are
junior in priority to the Purchased Item in question, (B) an Event of
Default by any Seller is a default by all Sellers and the Buyer may pursue
its
remedies in connection therewith against any of the Purchased Items and/or
against the assets and Properties of any or all Sellers, and (C) if an
Event of Default has occurred and is continuing, no Purchased Item will be
released from the Buyer’s Lien or transferred to the Sellers until the
Obligations are indefeasibly paid in full.”
13
(d) Paragraph 10(a)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(a) Organization
and Good Standing.
Each of
the Sellers and the Guarantors has been duly organized, and is validly existing
as a limited liability company, with respect to each Seller, and as a
corporation or limited partnership, as applicable, with respect to the
Guarantors, in good standing, under the laws of the state of its organization
or
formation, with all requisite power and authority to own or lease its Properties
and conduct its business as such business is presently conducted, and had,
at
all relevant times, and now has, all necessary power, authority and legal right
to acquire, own, sell and pledge the Purchased Items.”
(e) Paragraph 10(b)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(b) Due
Qualification.
Each of
the Sellers and the Guarantors is duly qualified to do business and is in good
standing as a limited liability company, corporation or partnership, as
applicable, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of its Property or the conduct
of
its business requires such qualification, licenses or approvals.”
(f) Paragraph 10(ss)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(ss) REIT
Status.
Subject
to Section 5(mm)
of
Annex I
to the
Repurchase Agreement, NorthStar qualifies as a REIT.”
(g) The
first
paragraph of Paragraph 11
of
Annex I
to the
Repurchase Agreement is amended as follows:
“(i) the
“or”
is deleted at the end of clause (xvii);
and
(ii) at
the
end of clause (xviii),
before
“(each an “Event
of Default”)”,
the
following provision shall be inserted: “or (xix) any of the Sellers and/or
any of the Guarantors fails to comply with or violates in any respect
Section 24
and/or
Section 26
of
Annex I
to the
Repurchase Agreement and the same continues unremedied for a period of
(a) two (2) Business Days, with respect to any monetary obligation,
and (b) in all other cases, five (5) Business Days, after notice from
the Buyer.””
14
(h) Clause (D)
of
Section 3(b)(vi)
of
Annex I
to the
Repurchase Agreement is amended by substituting “NorthStar” for “Guarantor” each
time the term Guarantor appears therein.
(i) The
following new Section 3(b)(xxii)
is added
to the end of Section 3
of
Annex I
to the
Repurchase Agreement as follows (and, in connection therewith, Section 3(b)(xx)
of
Annex I
to the
Repurchase Agreement is amended by deleting the “and” at the end thereof and
Section 3(b)(xxi) Annex
I
to the
Repurchase Agreement is amended by substituting a “; and” for the “.” at the end
thereof):
“(xxii) for
each
Preferred Equity Interest, the applicable Seller has executed and delivered
all
instruments and documents and has taken all further action reasonably necessary
and desirable or that the Buyer has reasonably requested in order to
(i) perfect and protect the Buyer’s security interest in such Preferred
Equity Interest (including, without limitation, execution and delivery of one
or
more control agreements reasonably acceptable to the Buyer, and any and all
other actions reasonably necessary to satisfy the Buyer that the Buyer has
obtained a first priority perfected security interest in such Preferred Equity
Interest); (ii) enable the Buyer to exercise and enforce its rights and
remedies hereunder in respect of such Preferred Equity Interest; and
(iii) otherwise effect the purposes of this Agreement, including, without
limitation and if requested by the Buyer, having delivered to the Buyer
irrevocable proxies in respect of such Preferred Equity Interest.”
(j) The
second to the last line of Section 5(i)(i)
of
Annex I
to the
Repurchase Agreement is amended by substituting “NorthStar” for
“Guarantor”.
(k) Section 5(s)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(i) Maintenance
of Liquidity.
NorthStar shall not permit, for any calendar quarter, its Liquidity for such
Test Period to be less than $12,000,000, $5,000,000 of which shall consist
of
cash or Cash Equivalents.
(ii) Maintenance
of Tangible Net Worth.
NorthStar shall not permit, for any Test Period, its Tangible Net Worth
(including NorthStar’s minority interest in the Operating Partnership) at any
time to be less than the sum of (A) $225,000,000 plus
(B) an amount equal to 75% of the aggregate net proceeds after costs and
expenses received by any Guarantor or any Subsidiaries of any Guarantor in
connection with the offering or issuance of any Capital Stock of any Guarantor
or Subsidiaries of any Guarantor after the Closing Date.
(iii) Maintenance
of Debt to Book Equity.
NorthStar shall not permit, for any Test Period, the ratio of its recourse
Indebtedness to Tangible Net Worth at any time to be greater than .80 to
1.0.
15
(iv) Interest
Coverage.
The
Sellers shall not permit, for any Test Period, the ratio of (A) the sum of
Consolidated Adjusted EBITDA for all Sellers for such Test Period to
(B) Interest Expense for all Sellers for such Test Period to be less than
1:5 to 1:0.”
(l) Section 5(mm)
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
“(mm) NorthStar
Status.
NorthStar shall remain listed on a nationally recognized securities exchange
in
good standing. NorthStar may change its status as a REIT provided it remains
in
compliance with the Financial Covenants in all respects.”
(m) The
following new Section 5(pp)
is added
to the end of Section 5
of
Annex I
to the
Repurchase Agreement as follows:
“Preferred
Equity Interests.
The
Sellers shall not permit any Capital Stock that is the subject of a Preferred
Equity Interest to consist of an interest in an entity other than a partnership
or limited liability company and, with respect to such limited partnership
and
limited liability company interests, shall not permit any such interest to:
(i) be dealt in or traded on a securities exchange or in a securities
market or (ii) be held in a Securities Account. The Sellers shall execute
and deliver, or cause to be executed or delivered, to the Buyer (or the
Custodian on its behalf) such agreements, documents and instruments as the
Buyer
may reasonably require to perfect its security interest in any such Capital
Stock.”
(n) Section 24
of
Annex I
to the
Repurchase Agreement is amended and restated as follows:
16
“Section 24 Temporary
Increase Period.
During
the Temporary Increase Period, provided there exists no Event of Default and
the
Buyer has agreed to a Temporarily Increase Amount of the Maximum Amount in
accordance with the definition thereof, (a) with respect to Mortgage Assets
that are eligible for the CDO Securitization Transaction, as determined by
the
Buyer in its discretion, and that the Buyer has agreed to purchase (other than
Over-Advance Purchased Assets), the Sellers may elect, on or before the related
Purchase Date by written notice to the Buyer, the Temporary Ramp-Up Pricing
Terms in lieu of the applicable Advance Rate and Pricing Spread contained in
the
Fee Letter (or the Confirmations in the case of Preferred Equity Interests
and
Construction Loans) that are otherwise applicable to such Mortgage Assets (each
such Purchased Asset, a “Temporary
Ramp-Up Asset”),
(b) the Unused Fee shall accrue in the manner described in the Fee Letter,
(c) an upsize fee shall be payable by the Sellers to the Buyer on the
Temporary Increase Amount only in accordance with clause (iii)
of the
penultimate sentence of this Section 24
and
(d) the Buyer may, in its discretion, on a monthly basis adjust the Advance
Rates under the Temporary Ramp-Up Pricing Terms for one (1) or more
Temporary Ramp-Up Assets, and, if any Advance Rate under the Temporary
Ramp-Pricing Terms is adjusted downward, the Sellers shall, no later than
two (2) Business Days from the date of the adjustment, make principal
payments to the Buyer as necessary so that the Purchase Price outstanding for
each applicable Temporary Ramp-Up Asset is equal to or less than the Purchase
Price based on the adjusted Advance Rate, and, in connection with such principal
payments, pay any Price Differential due thereon and any Breakage Costs payable
in connection therewith; provided,
however,
if
there exists no Event of Default and the principal amount due in connection
with
such adjustment is equal to or less than $5,000,000, the Sellers may repay
such
adjustment amounts pursuant to clause eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under such clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement. Subject to the terms herein, in the event the Sellers
elect the Temporary Ramp-Up Pricing Terms for any Purchased Asset as provided
above and any such Temporary Ramp-Up Assets are not repurchased by the Sellers
and sold into the CDO Securitization Transaction on or before the Temporary
Increase Expiration Date, (i) the Temporary Ramp-Up Pricing Terms shall
cease to be effective with respect to all Purchased Assets 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 (or the Confirmations in the case
of
Preferred Equity Interests and Construction Loans), (ii) the Sellers 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
Temporary Ramp-Up Asset is equal to or less than the Purchase Price based on
the
applicable Advance Rate set forth in the Fee Letter (or the Confirmations in
the
case of Preferred Equity Interests and Construction Loans), and, in connection
with such principal payments, pay any Price Differential due thereon and any
Breakage Costs payable in connection therewith, (iii) the Seller shall pay
to the Buyer on the Temporary Increase Expiration Date an upsize fee as provided
in the Fee Letter, (iv) the Maximum Amount shall thereafter be the sum of
$200,000,000 and the highest Temporary Increase Amount, which sum shall not
be
in excess of $500,000,000, in all cases subject to the definition of Maximum
Amount, (v) the Unused Fee shall commence accruing based on the full amount
of the Maximum Amount specified in the preceding clause (iv),
subject
to the terms of the Fee Letter, (vi) the limit on the Guaranteed
Indebtedness set forth in Section 1
of the
Guaranty shall be increased automatically to 10% of the new Maximum Amount
determined in accordance with clause (iv)
above
and (vii) the Buyer may, in its discretion, adjust any or all Advance Rates
set forth in Schedule 1
to the
Fee Letter (or the Confirmations in the case of Preferred Equity Interests
and
Construction Loans) with respect to the existing Purchased Assets to such
Advance Rates which, when considered on a portfolio basis, would result in
an
investment grade rating in a rated CDO securitization for such Purchased Assets,
and, if such adjustment is made, the Sellers shall make principal payments
to
the Buyer as necessary so that the Purchase Price outstanding for all Purchased
Assets is equal to or less than the Purchase Price for all Purchased Assets
based on the adjusted Advance Rates, which principal payments shall be applied
to the outstanding Purchase Price of one (1) or more Purchased Assets, as
determined by the Buyer in its discretion, and, in connection with such
principal payments, pay any Price Differential due thereon and any Breakage
Costs payable in connection therewith; provided,
however,
if
there exists no Event of Default and the principal amount due in connection
with
such adjustment is equal to or less than $5,000,000, the Sellers may repay
such
adjustment amounts pursuant to clause eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under such clause
eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement. Notwithstanding the Buyer’s agreement to this Second
Omnibus Amendment, 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.”
17
(o) The
following new Section 26
is added
to Annex I
to the
Repurchase Agreement as follows:
“Over-Advances.
(a) During
the Commitment Period and provided no Event of Default is then existing, the
Buyer may, in its discretion, purchase certain Mortgage Assets from the Sellers
using the Over-Advance Advance Rate (each an “Over-Advance
Purchased Asset”),
subject in each case to the satisfaction of the following requirements
(i) the Purchase Price for each Over-Advance Purchased Asset shall not
exceed a last dollar LTV of 85%, in each case as determined by the Buyer in
its
discretion, (ii) each such Over-Advance Purchased Asset shall be an
Eligible Asset, (iii) as a part of the Price Differential payment otherwise
due on each Payment Date with respect to each such Over-Advance Purchased Asset,
the Pricing Spread on the Over-Advance Purchase Price shall be the Over-Advance
Pricing Spread, (iv) on the Purchase Date for, and as a condition to the
advance of any such Over-Advance Purchase Price, the Sellers shall pay to the
Buyer a one-time draw fee for each Over-Advance Purchased Asset in the amount
of
the product of the Over-Advance Draw Fee and the amount of the related
Over-Advance Purchase Price, such fee not being applicable to any re-draw
following repayment in connection with such Over-Advance Purchased Asset,
(v) the aggregate Over-Advance Purchase Price shall not exceed the Maximum
Aggregate Over-Advance Purchase Price Amount, (vi) the Sellers shall repay
the Over-Advance Purchase Price for each such Over-Advance Purchased Asset
on or
before the earlier of (A) the Over-Advance Repayment Date and (B) the
Repurchase Date, (vii) the Sellers shall not be permitted to obtain any
Over-Advance Purchase Price at any time when the aggregate Purchase Price
outstanding exceeds 85% of the Asset Value of all Purchased Assets,
(viii) at no time shall the aggregate Purchase Price outstanding exceed 85%
of the Asset Value of all Purchased Assets, and, if the aggregate Purchase
Price
outstanding does exceed 85% of the Asset Value at any time (the “Excess
Purchase Price”),
the
Sellers shall immediately make principal payments to the Buyer in an amount
necessary to eliminate the Excess Purchase Price, which principal payments
shall
be applied to the outstanding Purchase Price of one (1) or more Purchased
Assets, as determined by the Buyer in its discretion, and, in connection with
the payment of such principal payments, the Sellers shall pay any Price
Differential due thereon and any Breakage Costs payable in connection therewith;
provided,
however,
if the
Excess Purchase Price is equal to or less than $5,000,000, the Sellers may
repay
such Excess Purchase Price pursuant to clause eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, as and when funds are available therefor under
clause eighth
of
Paragraph 5
of
Annex I
to the
Repurchase Agreement, (ix) no Over-Advance Purchase Price shall be
permitted for Construction Loans or Mortgage Assets that are collateralized
by
unimproved land, condominium projects or highly transitional properties,
(x) the Sellers, the Guarantors and the Pledgor are otherwise in compliance
with all of the terms, conditions, covenants, obligations, representations,
warranties and requirements contained in the Repurchase Documents, including,
without limitation, the Financial Covenants and (xi) in addition to the
Liquidity required under the Financial Covenants, NorthStar shall also maintain
Liquidity in an amount equal to 50% of the amount of Over-Advance Purchase
Price
outstanding at any given time. During the Commitment Period, provided there
is
no event of Default existing, amounts repaid under this Section 26
may be
readvanced subject to and in accordance with the terms of this Section 26
and the
other provisions of the Repurchase Documents.”
18
(p) Schedule 1
to
Annex I
to the
Repurchase Agreement is amended by adding thereto Schedule 1,
Part VII,
which
is attached hereto as Exhibit A
and is
incorporated herein by reference.
(q) The
Exhibits, Schedules and Annexes to the Repurchase Agreement are deemed amended,
as necessary, to include Preferred Equity Interests.
Section
2. Amendments
to Custodial Agreement.
(a) The
term
“Basic Mortgage Asset Documents” contained in Section 1.1
and
Annex 13
of the
Custodial Agreement is amended and restated as follows:
“Basic
Mortgage Asset Documents:
Means
the following original (except as otherwise permitted in Section 3.1
below),
fully executed and completed documents (in each case together with an original
Assignment, an original assignment or allonge, as applicable, of each Basic
Mortgage Asset Document, executed in blank (or, where permitted by Subsection 3.1(j),
an
original omnibus assignment executed in blank) and, as applicable, an original
assignment, assignment and assumption agreement or any similar document required
by the terms of the applicable Mortgage Loan Documents to effectuate an
assignment of such Mortgage Asset, executed by the Seller in blank),
(i) with respect to any Whole Loan, CTL Loan or Subordinate CTL Loan that
is a Whole Loan, the Mortgage Note, the Mortgage, the Assignment of Mortgage,
the Assignment of Leases, the Security Agreement, and, as applicable, the Pledge
Agreement, the stock, certificates or other instruments representing Pledged
Stock and any related stock, certificate or other similar power, (ii) with
respect to any Mezzanine Loan or Subordinate CTL Loan that is a Mezzanine Loan,
the Mezzanine Note, the Pledge Agreement, the stock, certificate or other
instruments representing Pledged Stock, any stock, certificate or other similar
power, and, as applicable, any Mortgage, Assignment of Mortgage, Assignment
of
Leases and Security Agreement, (iii) with respect to any Junior Interest or
Subordinate CTL Loan that is a Junior Interest, the Junior Interest Note and
the
Participation Agreement, (iv) with respect to a Bridge Loan, the Basic
Mortgage Asset Documents for a Whole Loan, (v) with respect to a CMBS
Security, the CMBS Security Certificate (if any), (vi) with respect to
Senior Secured Bank Debt, the Senior Secured Bank Debt Note(s), the Mortgage
(if
any), the Assignment of Mortgage (if any), the Assignment of Leases (if any),
the Security Agreement (if any), the Pledge Agreement (if any), the stock,
certificates or other instruments representing Pledged Stock (if any), any
related stock, certificate or other similar power and any other certificated
collateral and (vii) with respect to any Preferred Equity Interest, the
Preferred Equity Interest Documents.”
19
(b) Section 3.1(a)
of the
Custodial Agreement is amended by deleting “and” at the end of clause (xxv),
deleting the period at the end of clause (xxvi)
and
substituting “; and”, and adding the following new clause (xxvii).
“(xxvii) all
construction related documents related to such Whole Loan to the extent the
Whole Loan is a Construction Loan.”
(c) Section 3.1(b)(iii)
of the
Custodial Agreement is amended and restated as follows:
“(iii) (A) if
the Seller is the holder of any original document referred to in Subsections 3.1(a),
3.1(c)
or
3.1(g),
as
applicable (other than clauses (xxiv),
(xxv)
and
(xxvi)
in the
case of Subsection 3.1(a)
and
other than the last three (3) clauses of Subsections 3.1(c)
or
3.1(g)),
the
Seller shall deliver the same to the Custodian as part of the Mortgage Asset
File, together with (1) the originals of all intervening assignments
thereof, showing a complete chain of assignment from the Originator to the
Seller, and (2) an original assignment of the related document, agreement
or instrument, executed by the Seller in blank or (B) if the Seller is not
the
holder of any such original document referred to in Subsections 3.1(a),
3.1(c)
or
3.1(g),
as
applicable (other than clauses (xxiv),
(xxv)
and
(xxvi)
in the
case of Subsection 3.1(a)
and
other than the last three (3) clauses of Subsections 3.1(c)
or
3.1(g)),
the
Seller shall deliver an original of such document (if it has possession of
or
has an ability to obtain possession of an original, or, if not, a copy of such
documents) to the Custodian as part of the Mortgage Asset File (together with
originals or copies, as applicable, of all intervening assignments thereof,
showing a complete chain of assignment from the Originator to the Senior
Interest Holder or other holder); provided,
however,
an
assignment of such documents, instruments and agreement referred in this
clause (iii)(B)
from the
Seller in blank shall not be required.”
20
(d) Section 3.1(e)
of the
Custodial Agreement is amended by changing clause (viii)
to
(ix)
and
inserting the following new clause (viii):
“(viii) with
respect to CMBS Securities that are uncertificated securities, an original
executed agreement granting control of such CMBS Security to the Buyer and
providing that, after a Default or Event of Default, the issuer shall comply
with the instructions of the Buyer without the consent of any Seller of any
other Person.”
(e) Section 3.1(h)
of the
Custodial Agreement is amended by deleting “Subsection (a),
(b),
(c),
(d),
(e),
(f)
and
(g)”
in
the
last sentence and substituting in its place “Subsection 3.1(a),
(b),
(c),
(d),
(e),
(f),
(g)
and
(k)”.
(f) The
following new Section 3.1(k)
is added
to the Custodial Agreement:
With
respect to each Preferred Equity Interest:
“(i) the
original Preferred Equity Interest Documents (other than the Governing
Documents) (if any), which Preferred Equity Interest Documents shall (A) be
endorsed (either on the face thereof or pursuant to a separate allonge) by
the
most recent endorsee prior to the applicable Seller, without recourse, to the
order of the applicable Seller and further reflect a complete, unbroken chain
of
endorsement from the Originator to the applicable Seller and (B) be
accompanied by a separate allonge pursuant to which the applicable Seller has
endorsed such Preferred Equity Interest Documents, without recourse, in
blank;
(ii) certified
copies of the Governing Documents of the Preferred Equity Grantor;
(iii) with
regard to the Preferred Equity Grantor, an original secretary’s certificate,
certificate of incumbency and resolution authorizing, among other things, the
issuance of the Preferred Equity Interest only if the Preferred Equity Documents
do not so provide;
(iv) the
original Assignment required by the Repurchase Agreement;
21
(v) original
good standing certificates for the Preferred Equity Grantor (and any entity
signing for each entity) in the jurisdiction of its formation;
(vi) to
the
extent applicable, the original related Interest Rate Protection Agreement
and
the original assignments thereof to the Buyer;
(vii) if
applicable, an original power of attorney;
(viii) originals
of each agreement, letter of credit, cash management agreement, environmental
indemnity, guaranty or other indemnity agreement relating to the subject
Preferred Equity Interest, together with (A) originals of any intervening
assignments of each such document that precede the assignment thereof referred
to in clause (k)(viii)(B),
(B) if the applicable Seller is not the Originator, an original assignment
of each such document, in favor of the applicable Seller, executed by the
Originator (or, if such document was previously assigned, by the most recent
assignee), and (C) an original assignment of each such document, in blank,
executed by the applicable Seller;
(ix) if
applicable, an undated original stock, membership or similar power covering
each
Preferred Equity Interest, duly executed in blank with, if the Buyer so
requests, signature guaranteed;
(x) any
applicable Servicing Agreement or Pooling and Servicing Agreement;
(xi) the
original assignment document(s) (if any) required under the terms of the
Mortgage Loan Documents to effectuate an assignment thereunder of the Mortgage
Asset by the applicable Seller, executed by the applicable Seller in blank,
together with (A) originals of any intervening assignments that precede the
assignment referred to in clause (k)(xi)(B),
and
(B) if the applicable Seller is not the Originator, original assignment
documents, in favor of the applicable Seller, executed by the Originator (or,
if
such document was previously assigned by the most recent assignee);
(xii) if
applicable, a copy of the UCC financing statement(s) filed with respect to
the
Preferred Equity Interests and naming the Originator as secured party, together
with copies of any intervening UCC financing statements or UCC financing
statement amendments, as applicable, disclosing assignments prior to the
assignment to the applicable Seller, in each case with evidence of filing in
the
applicable jurisdiction indicated thereon;
(xiii) if
applicable, if the applicable Seller is not the Originator, a copy of a UCC
financing statement or UCC financing statement amendment, as applicable, in
favor of the applicable Seller, with evidence of filing in the applicable
jurisdiction indicated thereon, disclosing the assignment of each UCC financing
statements referred to in clause (k)(xii)
above,
executed by the Originator (or, if such UCC financing statement(s) was/were
previously assigned, by the most recent assignee);
22
(xiv) if
applicable, a copy of a UCC financing statement or UCC financing statement
amendment, as applicable, in blank, in form suitable for filing, disclosing
the
assignment of each UCC financing statement referred to in clause (k)(xii)
above,
executed by the applicable Seller (if applicable);
(xv) with
respect to each Preferred Equity Interest that is an uncertificated security,
an
original executed agreement granting control of such Preferred Equity Interest
to the Buyer and providing that the Preferred Equity Interest Grantor, after
a
Default or Event of Default, shall comply with the instructions of the Buyer
with respect to the Preferred Equity Interest without the consent of any Seller
or any other Person;
(xvi) either
a
Seller’s Release Letter or a Warehouse Lender’s Release Letter;
(xvii) any
additional documents identified on any Mortgage Asset File Checklist delivered
to the Custodian; and
(xviii) any
additional documents required to be added to the Mortgage Asset File by the
Buyer pursuant to Section 3.2(a)
of this
Agreement or otherwise required to be delivered pursuant to this Agreement,
the
Repurchase Agreement or the related Servicing Agreement.”
(g) Sections 3.1(j)(iv),
5.1
(last
sentence), 5.2
(last
sentence), 7.3
(first
and fourth sentences), 11.2(b)(iii)(A)
and
(B)
and
Annex 4
(Paragraphs 2,
7
and
11)
of the
Custodial Agreement are amended by adding “the Preferred Equity Interest
Documents,” after the term “Mezzanine Note” or “Mezzanine Notes”, as applicable,
each time such terms appear therein.
(h) Section 3.2(a)
of the
Custodial Agreement is amended by adding the following to the end
thereof:
“With
respect to each Preferred Equity Interest, the Custodian shall, no later than
one (1) Business Day before the requested Purchase Date, review the
Mortgage Asset File delivered by the Seller and provide by Electronic
Transmission a written summary report to the Buyer describing the documents
contained in the Mortgage Asset File and any exceptions to the delivery
requirements set forth in Section 3.1(k).
Based
on the summary report provided by the Custodian to the Buyer, the Buyer will
provide the Custodian and the Seller with written notice as to whether the
list
of Mortgage Loan Documents received by the Custodian is acceptable to the Buyer
in its discretion or whether the Buyer will require in its discretion, as a
condition to the purchase of the Preferred Equity Interest, that the Seller
deliver additional documents to the Custodian to be included as a part of
Mortgage Asset File for the Preferred Equity Interest. Regardless of the
proposed Purchase Date for a Preferred Equity Interest, and subject to the
satisfaction of all other conditions contained the Repurchase Documents, the
Buyer will not purchase any Preferred Equity Interest until it has the
opportunity to review and consider the summary report from the Custodian and,
as
applicable, the Seller provides to the Custodian with any additional documents
requested by the Buyer; provided,
however,
the
Buyer may waive or modify in writing all or any part of this requirement as
the
Buyer determines in its discretion.”
23
(i) Annex 9
of the
Custodial Agreement is amended by adding “Preferred Equity Interest Documents/”
after the term “Mezzanine Note” or “Mezzanine Notes”, as applicable, each time
such term appears therein in Paragraphs 2,
3,
4,
5
and
9.
(j) Annex 12
of the
Custodial Agreement is amended by adding the following paragraphs to the end
of
Annex 12:
|
“131.
|
Preferred
Equity Interest Document (other than Governing Documents) (if
any)
|
|
|
132.
|
Allonge/endorsement
to Preferred Equity Interest Document (other than Governing Documents)
(if
any)
|
|
|
Endorsed
to: ________________
|
||
|
List
complete chain: ______________
|
||
|
133.
|
Governing
Documents for Preferred Equity Grantor (and any entity signing
for such
entity)
|
|
|
134.
|
Good
Standing Certificate (and any entity signing for such
entity)
|
|
|
135.
|
Secretary’s
Certificate/certificate of incumbency/resolutions of Preferred
Equity
Interest Grantor (and any entity signing for such
entity)
|
|
|
136.
|
Other
agreements executed in connection with a Preferred Equity
Interest
|
|
|
137.
|
Interim
assignment of other Preferred Equity Interest
agreements
|
|
|
Assignee
(if any): _________________
|
||
|
138.
|
Assignment
of other Preferred Equity Interest agreements
|
|
|
Assignee:
Seller
|
||
|
139.
|
Assignment
of other Preferred Equity Interest agreements
|
|
|
Assignee:
blank
|
||
|
140.
|
Original
assignment document(s) required under the terms of the Mortgage
Loan
Documents to effectuate an assignment thereunder of the Mortgage
Asset by
the applicable Seller, executed in blank by the applicable
Seller
|
|
|
141.
|
Interim
assignment
|
|
|
Assignee
(if any): ______________________
|
||
|
142.
|
Assignment
to applicable Seller
|
|
|
143.
|
UCC
Financing Statement (Preferred Equity Interest) -
|
|
|
Filing
jurisdiction = _____________________
|
||
|
144.
|
UCC
assignment/UCC Financing Statement
|
|
|
amendment
(Preferred Equity Interest)
|
||
|
Filing
jurisdiction = _____________________
|
||
|
Assignee
= ___________________________
|
24
|
145.
|
UCC
assignment/UCC Financing Statement
|
|
|
amendment
(Preferred Equity Interest)
|
||
|
Filing
jurisdiction = _______________________
|
||
|
Assignee
=
blank
|
||
|
146.
|
With
respect to any CMBS Security or Preferred Equity Interest that
is an
uncertificated security, an executed control agreement
|
|
|
147.
|
All
construction related documents for any Construction
Loan
|
|
|
148.
|
Interim
assignment of construction documents
|
|
|
Assignee
(if any): ___________________
|
||
|
149.
|
Assignment
of construction documents
|
|
|
Assignee
=
Seller
|
||
|
150.
|
Assignment
of construction documents
|
|
|
Assignee
=
blank”
|
(k) Annex 13
of the
Custodial Agreement is hereby deleted in its entirety and is replaced with
the
Annex 13
which is
attached hereto as Exhibit D
and is
incorporated herein by reference.
Section
3. Amendments
to Guaranty.
(a) Section 1
of the
Guaranty is amended and restated as follows:
“1. Limited
Guaranty of Payment and Performance.
Each
Guarantor hereby absolutely,
primarily, unconditionally and irrevocably guarantees, as primary obligor and
as
guarantor of payment and performance and not merely as surety or guarantor
of
collection, to
the
Buyer
subject
to the terms of this Section 1
(i) the payment, when due, by acceleration or otherwise, of the Guaranteed
Indebtedness,
and
(ii) the
full
and timely performance of, and compliance with, each and every duty, agreement,
undertaking, indemnity and obligation of the Sellers under the Repurchase
Documents strictly in accordance with the terms thereof (collectively, the
“Guarantee
Obligations”),
in
each case, however created, arising or evidenced, whether direct or indirect,
primary or secondary, absolute or contingent, joint or several and whether
now
or hereafter existing or due or to become due.
For the
purposes hereof, the term “Guaranteed
Indebtedness”
means
any and all Indebtedness of the Sellers or the Pledgor to the Buyer
and
any other Affected Party
in
connection with the Repurchase Documents, including, but not limited to,
the
aggregate
Repurchase Price outstanding, the aggregate Price Differential outstanding
and
all other Aggregate Unpaids and Obligations outstanding, howsoever evidenced,
whether existing now or arising hereafter, as such Guaranteed Indebtedness
may
be amended, modified, extended, renewed or replaced from time to time;
provided,
however,
that,
notwithstanding anything to the contrary contained herein, the Guarantors shall
not be liable for any Guaranteed Indebtedness in excess of ten percent
(10%) of the then Maximum Amount (not including any temporary increases in
the
Maximum Amount during the Temporary Increase Period), which Maximum Amount
the
Guarantors acknowledge and agree may be adjusted from time to time under the
terms of the Repurchase Agreement, which adjustments would result in automatic
adjustments to the Guarantors’ liability under this Guaranty. Notwithstanding
any provision to the contrary contained herein or in any of the other Repurchase
Documents, the
obligations of the Guarantors hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the Bankruptcy Code or any
comparable provisions of any Applicable Law of any state.”
25
(b) Section 9(a)(i)
of the
Guaranty is amended and restated as follows:
“(i) It
is
duly organized, validly existing and in good standing as a corporation or
limited partnership, as applicable, under the laws of the state of its formation
and is duly qualified to do business and is in good standing in all
jurisdictions in which the character of its property, the nature of its business
or the performance of its obligations under any agreement to which it is a
party
or is bound makes such qualification necessary.”
(c) Section 29
of the
Guaranty is amended and restated as follows:
“29. Joint
and Several Obligations.
(a) At
all
times during which there is more than one (1) Guarantor under the
Guaranty,
the
liability of each Guarantor shall be joint and several and the joint and several
obligations of each Guarantor under the Repurchase Documents
(a) (i) shall be absolute and unconditional and shall remain in full
force and effect (or be reinstated) until all the Obligations shall have been
paid in full and the expiration of any applicable preference or similar period
pursuant to any bankruptcy, insolvency, reorganization, moratorium or similar
law, or at law or in equity, without any claim having been made before the
expiration of such period asserting an interest in all or any part of any
payment(s) received by the Buyer, and (ii) until such payment has been
made, shall not be discharged, affected, modified or impaired on the happening
from time to time of any event, including, without limitation, any of the
following, whether or not with notice to or the consent of any Seller, any
Guarantor or the Pledgor, (A) the waiver, compromise, settlement, release,
termination or amendment (including, without limitation, any extension or
postponement of the time for payment or performance or renewal or refinancing)
of any or all of the obligations or agreements of any Seller, any Guarantor
or
the Pledgor under the Repurchase Agreement or any Repurchase Document,
(B) the failure to give notice to any Seller, any Guarantor or the Pledgor
of the occurrence of an Event of Default under any of the Repurchase Documents,
(C) the release, substitution or exchange by the Buyer of any or all of the
Purchased Items or the Equity Interests (in each case, whether with or without
consideration) or the acceptance by the Buyer of any additional collateral
or
the availability or claimed availability of any other collateral or source
of
repayment or any nonperfection or other impairment of collateral, (D) the
release of any Person primarily or secondarily liable for all or any part of
the
Obligations, whether by the Buyer or in connection with any voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors or similar event or proceeding affecting
any or all Sellers, any Guarantors, the Pledgor or any other Person who, or
any
of whose Property, shall at the time in question be obligated in respect of
the
Obligations or any part thereof, or (E) to the extent permitted by
Applicable Law, any other event, occurrence, action or circumstance that would,
in the absence of this Section 29,
result
in the release or discharge of any or all Guarantors from the performance or
observance of any obligation, covenant or agreement contained in the Repurchase
Documents; (b) each Guarantor expressly agrees that the Buyer shall not be
required first to initiate any suit or to exhaust its remedies against any
Seller, any Guarantor, the Pledgor or any other Person to become liable, or
against any of the Purchased Items or the Equity Interests, in order to enforce
this Guaranty or the other Repurchase Documents and each Guarantor expressly
agrees that, notwithstanding the occurrence of any of the foregoing, each
Guarantor shall be and remain directly and primarily liable for all sums due
under the Repurchase Agreement or any of the Repurchase Documents, as and to
the
extent limited by this Guaranty;
and,
(c) on disposition by the Buyer of any Property encumbered by any Purchased
Items or the Equity Interests, each Guarantor shall be and shall remain jointly
and severally liable for any deficiency, as and to the extent limited by this
Guaranty.
26
(b) Each
Guarantor
hereby
agrees that, to the extent another Guarantor
shall
have paid more than its proportionate share of any payment made hereunder,
the
Guarantor
shall
be
entitled to seek and receive contribution from and against any other
Guarantor
which
has
not paid its proportionate share of such payment; provided however,
that
the provisions of this Section 29(b)
shall in
no respect limit the obligations and liabilities of any Guarantor
to
the
Buyer, and, notwithstanding any payment or payments made by any Guarantor
(the
“paying
Guarantor”)
hereunder or any set-off or application of funds of the paying Guarantor
by
the
Buyer, the paying Guarantor
shall
not
be entitled to be subrogated to any of the rights of the Buyer against any
other
Guarantor
or
any
collateral security or guarantee or right of offset held by the Buyer, nor
shall
the paying Guarantor
seek
or
be entitled to seek any contribution or reimbursement from the other
Guarantor
in
respect of payments made by the paying Guarantor
hereunder,
until all amounts owing to the Buyer by the Guarantors
under
the
Repurchase Documents are paid in full. If any amount shall be paid to the paying
Guarantor
on
account of such subrogation rights at any time when all such amounts shall
not
have been paid in full, such amount shall be held by the paying Guarantor
in
trust
for the Buyer, segregated from other funds of the paying Guarantor,
and
shall, forthwith upon receipt by the paying Guarantor,
be
turned over to the Buyer in the exact form received by the paying Guarantor
(duly
indorsed by the paying Guarantor
to
the
Buyer, if required), to be applied against amounts owing to the Buyer by the
Guarantors
under
the
Repurchase Documents, whether matured or unmatured, in such order as the Buyer
may determine in its discretion.”
27
Section
4. Amendments
to Fee Letter.
In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
execute the Fee Letter.
Section
5. [Reserved].
Section
6. Miscellaneous
Amendments.
(a) In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
execute the Amended and Restated Preferred Equity Pledge and Security Agreement
which is attached hereto as Exhibit C
and is
incorporated herein by reference.
(b) Amendments
to the existing UCC financing statement filed against the Existing Sellers
and
the Pledgor shall also be filed in connection with the closing of this Second
Omnibus Amendment to incorporate the changes reflected herein.
(c) The
term
“Seller,” as used in each of the Repurchase Documents, is hereby amended, in
each case mutatis mutandis,
to
refer to “Sellers” and the term Sellers to refer to (individually and
collectively as the context may require) NRFC WA Holdings, LLC, a Delaware
limited liability company (together with its successors and permitted assigns),
NRFC WA Holdings II, LLC, a Delaware limited liability company (together with
its successors and permitted assigns), NRFC WA Holdings III, LLC, a
Delaware limited liability company (together with its successors and permitted
assigns), NRFC WA Holdings IV, LLC, a Delaware limited liability company
(together with its successors and permitted assigns), NRFC WA Holdings IV,
LLC, a Delaware limited liability company (together with its successors and
permitted assigns), NRFC WA Holdings V, LLC, a Delaware limited liability
company (together with its successors and permitted assigns), NRFC WA
Holdings VI, LLC, a Delaware limited liability company (together with its
successors and permitted assigns), NRFC WA Holdings VII, LLC, a Delaware
limited liability company (together with its successors and permitted assigns),
and NRFC WA Holdings VIII, LLC, a Delaware limited liability company
(together with its successors and permitted assigns), as the Sellers, each
jointly and severally liable under the Repurchase Documents.
(d) The
term
“Guarantor,” as used in each of the Repurchase Documents, is hereby amended, in
each case mutatis mutandis,
to
refer to “Guarantors” and the term Guarantors to refer to (individually and
collectively as the context may require) NorthStar Realty Finance Corp., a
Maryland corporation (together with its successors and permitted assigns) and
NorthStar Realty Finance L.P., a Delaware limited partnership (together with
its
successors and permitted assigns), as the Guarantors, each jointly and severally
liable as Guarantors under the Guaranty.
28
(e) The
term
“Obligations,” as used in each of the Repurchase Documents, shall include all
Obligations of each Seller, jointly and severally, under the Repurchase
Agreement and under each other Repurchase Document.
Section
7. Consent
to Joinder; Related Acknowledgments and Agreements.
(a) Subject
to the terms of this Second Omnibus Amendment, including, but not limited to,
satisfaction in full of the requirements set forth in Section 11
of this
Second Omnibus Amendment, the Buyer consents to (i) the addition of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII as additional Sellers, to be jointly and severally liable with
the Existing Sellers under the Repurchase Documents and (ii) the addition
of the Operating Partnership as an additional Guarantor, to be jointly and
severally liable with the Existing Guarantor under the Repurchase Documents
to
which the Guarantors are a party. All parties acknowledge and agree that the
Buyer’s consent hereto shall not be deemed a waiver of the Buyer’s rights to
prohibit or to refuse to consent to future transfers, additions, substitutions,
waivers or other matters under Repurchase Documents.
(b) All
parties to this Second Omnibus Amendment acknowledge, agree and confirm that,
upon execution of this Second Omnibus Amendment, (i) each of NRFC III,
NRFC IV, NRFC V, NRFC VI, NRFC VII and NRFC VIII shall
each be deemed to be a party to, and a “Seller” under, the Repurchase Documents
for all purposes, (ii) the Operating Partnership shall be deemed to be a
party to and a “Guarantor” under the Repurchase Documents for all purposes,
(iii) the obligations and liabilities of each Seller and each Guarantor, as
applicable, under the Repurchase Documents shall be joint and several,
(iv) the Pledge and Security Agreement shall now constitute a pledge of the
Capital Stock of all Sellers, (v) the Guaranty shall now be an obligation
of both Guarantors and the Guaranty shall apply to and cover the Obligations
of
all Sellers, (vi) the Repurchase Documents to which the Sellers are a party
and
the Transactions thereunder shall now be obligations of all Sellers,
(vii) each Seller, each Guarantor, the Pledgor and the Custodian hereby
acknowledges and confirms that the Repurchase Agreement and all other Repurchase
Documents are, and upon each of NRFC III, NRFC IV, NRFC V,
NRFC VI, NRFC VII and NRFC VIII becoming a Seller and the
Operating Partnership becoming a Guarantor, shall continue to be, valid, binding
and enforceable and in full force and effect, and (viii) each of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership shall have all of the rights,
duties, obligations and liabilities of a Seller or Guarantor, as applicable,
under the Repurchase Documents, the same as if each had executed each of the
Repurchase Documents, as a Seller or Guarantor, as applicable, in each case
mutatis mutandis.
(c) Each
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions, conditions,
duties, obligations and liabilities applicable to a Seller or a Guarantor,
as
applicable, and contained in the Repurchase Documents (including all exhibits,
annexes, schedules and attachments thereto), in each case mutatis mutandis,
including, without limitation, (i) all of the representations, warranties
and certifications applicable to a Seller or a Guarantor set forth in the
Repurchase Documents, which representations, warranties and certifications
each
of NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership hereby makes as of the date hereof
(and will make as of each future date required by the Repurchase Documents)
and
hereby certifies that such representations, warranties and certifications are
true and correct in all material respects as of the date of this Second Omnibus
Amendment, (ii) all of the duties, obligations, liabilities and affirmative
and negative covenants applicable to a Seller and/or a Guarantor, as applicable,
set forth in the applicable Repurchase Documents, (iii) the indemnification
provisions contained in the Repurchase Documents applicable to a Seller or
a
Guarantor, as applicable, (iv) the obligation to pay within the time period
specified in the Repurchase Agreement any and all Margin Deficits with respect
to any and all Purchased Assets and all other amounts due under the Repurchase
Documents, and (v) all other terms, provisions, obligations, duties,
agreements and liabilities applicable to a Seller and/or a Guarantor, as
applicable, set forth in the applicable Repurchase Documents.
29
(d) For
the
avoidance of doubt, (i) each of the Sellers hereby assigns, pledges and
grants a security interest in all of its right, title and interest in, to and
under the Purchased Items in favor of the Buyer (on behalf of the Buyer and
the
Swap Counterparty) to secure, and each of the Sellers agrees to pay, jointly
and
severally, the Obligations as and when due under the Repurchase Documents,
(ii) the Pledgor hereby assigns, pledges and grants a security interest to
the Buyer (on behalf of the Buyer and the Swap Counterparty) in all of its
right, title and interest in, to and under the Pledged Collateral (which now
includes, but is not limited to, the Equity Interests in all Sellers) to secure
payment of the Pledged Obligations, which includes the Obligations of all
Sellers, and (iii) the Guarantors acknowledge and agree that the Guarantee
Obligations and the Guarantee Indebtedness now include, but are not limited
to,
the Obligations and Indebtedness of all Sellers and the Pledgor.
(e) Each
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII and the Operating Partnership acknowledges and confirms that it
has received a copy of each and every Repurchase Document and the schedules,
annexes, exhibits and attachments thereto.
(f) The
address for notice purposes under the Repurchase Documents for each Seller
and
each Guarantor shall be the address set forth on the signature page of the
applicable Seller or Guarantor, as applicable.
(g) The
Sellers, the Guarantor and the Pledgor acknowledge and agree that the joinder
of
NRFC III, NRFC IV, NRFC V, NRFC VI, NRFC VII and
NRFC VIII as Sellers, the joinder of the Operating Partnership as Guarantor
and the amendments set forth in this Second Omnibus Amendment do not and shall
not release, reduce, diminish, impair or adversely affect the obligations of
such parties under the Repurchase Documents, as amended by this Second Omnibus
Amendment.
(h) Each
of
the Sellers, the Guarantors, the Pledgor and the Custodian agrees that, at
any
time and from time to time, upon the written request of the Buyer, it will
execute and deliver such further documents and do such further acts as the
Buyer
may reasonably request in order to carry out the purposes and intent of this
Second Omnibus Amendment.
30
Section
8. Fees.
In
connection with the closing of this Second Omnibus Amendment, the Sellers shall
pay to the Buyer the upsize fee described in the Fee Letter in immediately
available funds and without and reduction for or an account of any defense,
counterclaim or set-off.
Section
9. 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 Second Omnibus Amendment.
This
Second Omnibus Amendment 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 Second Omnibus Amendment, as though such terms and conditions were
set
forth herein.
Section
10. Representations.
Each
of
the Sellers, each of the Guarantors and the Pledgor represents and warrants,
as
of the date of this Second Omnibus Amendment, 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 Second Omnibus Amendment
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 Second Omnibus Amendment;
(d) this
Second Omnibus Amendment has been duly executed and delivered by
it;
(e) this
Second Omnibus Amendment, as well as each of the Repurchase Documents as
modified by this Second Omnibus Amendment, 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
Second Omnibus Amendment; and
31
(g) each
of
the Repurchase Documents is in full force and effect and no Seller, no Guarantor
or the Pledgor has any defense, offset, counterclaim, abatement, right of
rescission or other claims, legal or equitable, available to any Seller, any
Guarantor, the Pledgor or any other Person with respect to this Second Omnibus
Amendment, the Repurchase Agreement, the Repurchase 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 Sellers and the
Guarantors to repay the Obligations and other amounts due under the Repurchase
Documents.
Section
11. Conditions
Precedent.
The
effectiveness of this Second Omnibus Amendment is subject to the following
conditions precedent: (i) delivery to the Buyer of this Second Omnibus
Amendment, the Fee Letter and Preferred Equity Pledge and Security Agreement
duly executed by each of the parties thereto; (ii) delivery to the Buyer
with respect to each NRFC III, NRFC IV, NRFC V, NRFC VI,
NRFC VII, NRFC VIII and the Operating Partnership of the following in
form and substance satisfactory to the Buyer in its reasonable discretion:
Governing Documents, recent good standing certificates, an executed secretary’s
certificate, an executed incumbency certificate, executed resolutions, an
executed Perfection Certificate in the form attached hereto as Exhibit E
to this
Second Omnibus Amendment (for the new Sellers only), a Power of Attorney in
the
form of Exhibit F
to this
Second Omnibus Amendment (for the new Sellers only) and such information as
the
Buyer may require to comply with the U. S. Patriot Act and related
Applicable Laws with respect to the new Sellers and the new Guarantor;
(iii) modification of the Collection Account and Securities Account, as
appropriate, to address the interests of all Sellers therein; (iv) delivery
to the Buyer of an Opinion of Counsel with respect to the Sellers, the Pledgor
and the Guarantor and this Second Omnibus Amendment and the Repurchase Documents
as modified by this Second Omnibus Amendment; (v) payment of the fee
referred to in Section 8
of this
Second Omnibus Amendment; (vi) the filing of UCC financing statement
amendments in the applicable jurisdiction against the Sellers and the Pledgor
and the new Sellers; (vii) the 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; (viii) an Officer’s Certificate as
provided in the last paragraph of the Fee Letter; and (ix) such other
documents, agreements or certifications as the Buyer may reasonably require.
Section
12. Miscellaneous.
(a) This
Second Omnibus Amendment 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 Second Omnibus Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
32
(c) This
Second Omnibus Amendment 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 mutatis mutandis.
(e) This
Second Omnibus Amendment 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
SECOND OMNIBUS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS SECOND OMNIBUS AMENDMENT 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]
33
IN
WITNESS WHEREOF,
the
parties have caused this Second Omnibus Amendment 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Executive
Vice President
|
||
|
Address
for Notices:
NRFC
WA Holdings, LLC
c/o
NorthStar Realty Finance Corp.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
| Attention: |
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
| Facsimile No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| Confirmation No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| with a copy to: | ||
|
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
| Attention: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. | |
| Facsimile No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Confirmation No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
[SIGNATURES
CONTINUED ON FOLLOWING PAGE]
Exhibit
F-1
| THE BUYER: |
WACHOVIA
BANK, NATIONAL ASSOCIATION,
a
national banking association
|
|
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice
President
|
||
|
Wachovia
Bank, National Association
One
Wachovia Center, Mail Code: NC0166
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
| Attention: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Facsimile No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Confirmation No.: | (▇▇▇) ▇▇▇-▇▇▇▇ | |
[ADDITIONAL
SIGNATURE
PAGES INTENTIONALLY OMITTED]
Exhibit
F-2