EXHIBIT 10.19
SECOND AMENDMENT TO MASTER REPURCHASE AGREEMENT
SECOND AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as of January 6, 2016 (this “Amendment”), by and among NS INCOME DB LOAN, LLC, a Delaware limited liability company (“Master Seller”), NORTHSTAR REAL ESTATE INCOME TRUST, INC., a Maryland corporation (“Trust”), and NORTHSTAR REAL ESTATE INCOME TRUST OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“Operating Partnership”; and together with Trust, “Sponsor”), and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH, a branch of a foreign banking institution (“Buyer”), and acknowledged and agreed to by NS INCOME DB LOAN MEMBER, LLC, a Delaware limited liability company (“Member”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Repurchase Agreement (as hereinafter defined).
RECITALS
WHEREAS, Master Seller and Buyer are parties to that certain Master Repurchase Agreement, dated as of March 11, 2013 (as amended, modified and/or restated, the “Repurchase Agreement”), between Master Seller and Buyer;
WHEREAS, Sponsor guaranteed the obligations of Seller under the Repurchase Agreement and the other Transaction Documents pursuant to that certain Limited Guaranty, dated as of March 11, 2013 (as amended, modified and/or restated, the “Guaranty”), from Sponsor to Buyer;
WHEREAS, Master Seller and Buyer amended the Repurchase Agreement pursuant to that certain First Amendment to Master Repurchase Agreement, dated as of October 8, 2013 (the “First Amendment”), by and between Master Seller and Buyer, and acknowledged and agreed to by Sponsor and Member;
WHEREAS, Member guaranteed the obligations of Seller under the Repurchase Agreement and the other Transaction Documents pursuant to that certain Member Guaranty, dated as of March 11, 2013 (as amended, modified and/or restated, the “Member Guaranty”), from Member to Buyer;
WHEREAS, Master Seller, on behalf of itself and each Series Seller that is a party to a Transaction under the Repurchase Agreement as of the date hereof, and Buyer wish to further amend and modify the Repurchase Agreement upon the terms and conditions hereinafter set forth; and
WHEREAS, Sponsor and Buyer wish to amend and modify the Guaranty upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, (i) Master Seller, on behalf of itself and each Series Seller that is a party to a Transaction under the Repurchase Agreement as of the date hereof, and Buyer hereby agree that the Repurchase Agreement shall be amended and modified as follows, and (ii) Sponsor and Buyer hereby agree that the Guaranty shall be amended and modified as follows:
1.Amendments to the Repurchase Agreement.
a. The following defined terms as set forth in Section 2(a) of the Repurchase Agreement are hereby deleted in their entirety: “Amortization Event”, “Amortization Event Amount”, “Purchased Loan LTV”, “Stabilized Loan Maximum Original Purchase Amount”, “Stabilized Loan Maximum Original Purchase Percentage”, “Transition Loan Maximum Original Purchase Amount” and “Transition Loan Maximum Original Purchase Percentage”.
b. The following defined terms as set forth in Section 2(a) of the Repurchase Agreement are hereby amended and restated in their entirety to read as follows:
“Change of Control” shall mean any of the following events shall have occurred without the prior written approval of Buyer: (i) if Manager is no longer the manager of Trust; (ii) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the 1934 Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of 49% or more of the total voting power of all classes of ownership interests of Seller, Sponsor or Manager, entitled to vote generally in the election of the directors (or the applicable equivalent) of any such Person, (iii) Sponsor shall cease to own, of record and beneficially, 100% of the ownership interests in Member and Control Member, or (iv) Member shall cease to own, of record and beneficially, 100% of the ownership interests in Seller and Control Seller.
“Maximum Original Purchase Percentage” shall mean, with respect to any Transaction, the percentage specified as the Maximum Original Purchase Percentage in the Confirmation for such Transaction as determined by Buyer in its sole and absolute discretion.
“Maximum Repurchase Price” shall mean, with respect to any Purchased Loan as of any date of determination, an amount equal to (i) the product of (x) the then current Principal Balance of such Purchased Loan, (y) the Purchase Date Market Value Percentage of such Purchased Loan, and (z) the Maximum Original Purchase Percentage of such Purchased Loan,less (ii) the Net Market Value Decrease of such Purchased Loan.
c. The following defined terms are hereby added to Section 2(a) of the Repurchase Agreement (in the proper alphabetical order):
“Asset Management Agreement” shall mean the asset management agreement or advisory agreement entered into by Manager with respect to Sponsor or such other asset management or advisory agreement with respect to Sponsor acceptable to Buyer in its reasonable discretion, in each case, as the same may be amended, modified and/or restated from time to time.
“Credit Event Threshold” shall mean, for any Purchased Loan, any term, covenant or condition set forth in the Confirmation for the related Transaction designated as a Credit Event Threshold therein.
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“Manager” shall mean NorthStar Asset Management Group Inc., a Delaware corporation, or a subsidiary thereof.
“Market Value Percentage” shall mean, with respect to any Eligible Loan or Purchased Loan, as of any date, the fraction, expressed as a percentage and rounded to the next highest hundredth of a percent, the numerator of which is the then current Market Value of such Eligible Loan or Purchased Loan, and the denominator of which is the then current Principal Balance of such Eligible Loan or Purchased Loan.
“Net Market Value Decrease” shall mean, with respect to any Purchased Loan, as of any date of determination, an amount equal to the greater of (i) zero and (ii) the product of (1) the then current Principal Balance of such Purchased Loan and (2) (x) the Purchase Date Market Value Percentage of such Purchased Loan,less (y) the then current Market Value Percentage of such Purchased Loan.
“Purchase Date Market Value” shall mean, with respect to any Purchased Loan, the Market Value of such Purchased Loan as of the related Purchase Date, and which Purchase Date Market Value shall be set forth in the Confirmation for the related Transaction.
“Purchase Date Market Value Percentage” shall mean, with respect to any Purchased Loan, the fraction, expressed as a percentage and rounded to the next highest hundredth of a percent, the numerator of which is the Purchase Date Market Value of such Purchased Loan, and the denominator of which is the Principal Balance as of the related Purchase Date, and which Purchase Date Market Value Percentage shall be set forth in the Confirmation for the related Transaction.
d. The term “Cash Flow Deficiency” in Section 2(a) of the Repurchase Agreement is hereby amended by deleting: “or 5(f)(i)-(v)” in the third (3rd) line thereof and inserting the word “or” before “5(e)(i)-(v)” in the third (3rd) line thereof.
e. For all Transactions entered into under the Repurchase Agreement after the date of this Amendment, the term “Credit Event” in Section 2(a) of the Repurchase Agreement is hereby amended by deleting the word “and” after clause (iv) thereof, deleting the period after clause (v) thereof and adding the following at the end of such definition (it being acknowledged and agreed that the definition of “Credit Event” for all Transactions in effect under the Repurchase Agreement as of the date of this Amendment shall remain unmodified):
| “(vi) | the existence of any pending litigation, action, suit, arbitration, investigation or other legal or arbitration proceeding affecting any Mortgagor or guarantor for the Purchased Loan or the applicable Mortgaged Property which if adversely determined could reasonably be expected to have a material adverse effect on such Mortgagor, guarantor or the applicable Mortgaged Property; |
| (vii) | a failure to satisfy any Credit Event Threshold for such Purchased Loan; |
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| (viii) | the occurrence of a Securitization Extension Event: or |
| (ix) | the occurrence of a Securitization Failure Event.” |
f. The term “Debt Yield” in Section 2(a) of the Repurchase Agreement is hereby amended by deleting the words “underwritten net cash flow” in the second (2nd) line thereof and replacing same with “net operating income”.
g. The term “Market Value” in Section 2(a) of the Repurchase Agreement is hereby amended by adding the following sentence at the end of such definition: “Notwithstanding the foregoing, Buyer shall not reduce the Market Value for any Purchased Loan unless a Credit Event has occurred and is continuing with respect to such Purchased Loan.”
h. The term “Repurchase Price” in Section 2(a) of the Repurchase Agreement is hereby amended by deleting the words: “and 5(f)(iii)” and inserting the word “and” before “5(e)(iii)” in the last line thereof.
i. Section 5(f) of the Repurchase Agreement is hereby deleted in its entirety and replaced with the words “(f) Intentionally omitted.”.
j. Section 13(a)(I)(ii) of the Repurchase Agreement is hereby deleted in its entirety and replaced with the following:
| “(ii) | Seller, Sponsor, Member or Manager shall admit in writing its inability to, or its intention not to, perform any of its obligations hereunder or under any of the Transaction Documents;” |
k. Section 13(a)(I) of the Repurchase Agreement is hereby amended by adding the following as a new Section 13(a)(I)(xiv):
| “(xiv) | prior to an internalization of management of Trust, Manager resigns or is removed, terminated or otherwise no longer serves or is unable to serve as the asset manager and investment advisor of the Trust or Manager is in material breach of its duties or obligations under the Asset Management Agreement, which breach would give rise to a right to terminate the Asset Management Agreement pursuant to the terms thereof, beyond any applicable notice and cure period and Manager is not replaced with a successor manager reasonably acceptable to Buyer pursuant to a replacement asset management agreement acceptable to Buyer within sixty (60) days.” |
l. Exhibit I attached to the Repurchase Agreement is amended by inserting the following immediately prior to “Actual Original Purchase Percentage”:
“Purchase Date Market Value: [ ]
Purchase Date Market Value
Percentage: [ ]”.
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2.Amendment of Transaction Documents. From and after the date hereof, all references in the Repurchase Agreement to “this Agreement” and all references in the other Transaction Documents to “the Repurchase Agreement” shall be deemed to refer to the Repurchase Agreement as amended and modified by this Amendment, by the First Amendment and as same may be further amended, modified and/or restated.
3.Due Authority. Each of Master Seller, on behalf of itself and each Series Seller that is a party to a Transaction under the Repurchase Agreement as of the date hereof, Sponsor and Member hereby represents and warrants to Buyer that, as of the date hereof, (i) it has the power to execute, deliver and perform its respective obligations under this Amendment, (ii) this Amendment has been duly executed and delivered by it for good and valuable consideration, and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to equitable principles, and (iii) neither the execution and delivery of this Amendment, nor the consummation by it of the transactions contemplated by this Amendment, nor compliance by it with the terms, conditions and provisions of this Amendment will conflict with or result in a breach of any of the terms, conditions or provisions of (A) its organizational documents, (B) any contractual obligation to which it is now a party or the rights under which have been assigned to it or the obligations under which have been assumed by it or to which its assets are subject or constitute a default thereunder, or result thereunder in the creation or imposition of any lien upon any of its assets, other than pursuant to this Amendment, (C) any judgment or order, writ, injunction, decree or demand of any court applicable to it, or (D) any applicable Requirement of Law, in the case of clauses (A)-(C) above, to the extent that such conflict or breach is reasonably likely to result in a Material Adverse Effect.
4.Counterparts. This Amendment may be executed by each of the parties hereto in any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart thereof.
5.GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
6.Reaffirmation of Guaranty and Member Guaranty. Sponsor acknowledges the amendments and modifications of the Repurchase Agreement pursuant to this Amendment and hereby ratifies and reaffirms all of the terms, covenants and conditions of the Guaranty and agrees that the Guaranty remains unmodified and in full force and effect and enforceable in accordance with its terms. Member acknowledges the amendments and modifications of the Repurchase Agreement pursuant to this Amendment and hereby ratifies and reaffirms all of the terms, covenants and conditions of the Member Guaranty and agrees that the Member Guaranty remains unmodified and in full force and effect and enforceable in accordance with its terms.
7.Repurchase Agreement and Transaction Documents in Full Force and Effect. Except as expressly amended hereby, Master Seller, on behalf of itself and each Series Seller that is a party to a Transaction under the Repurchase Agreement as of the date hereof, Sponsor and
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Member acknowledge and agree that all of the terms, covenants and conditions of the Repurchase Agreement and the other Transaction Documents remain unmodified and in full force and effect and are hereby ratified and confirmed in all respects.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written.
| BUYER: | ||
| DEUTSCHE ANK AG, CAYMAN ISLANDS BRANCH | ||
| By: | /s/ Dean Aotani | |
| Name: Dean Aotani | ||
| Title: Managing Director | ||
| By: | /s/ R. Christopher Jones | |
| Name: R. Christopher Jones | ||
| Title: Director | ||
| MASTER SELLER: | ||||||||||
| NS INCOME DB LOAN, LLC, a Delaware limited liability company | ||||||||||
| By: | NS Income DB Loan Member, LLC, a Delaware | |||||||||
| limited liability company, its sole member | ||||||||||
| By: | NorthStar Real Estate Income Trust | |||||||||
| Operating Partnership, LP, a Delaware | ||||||||||
| limited partnership, its sole member | ||||||||||
| By: | NorthStar Real Estate Income | |||||||||
| Trust, Inc., a Maryland | ||||||||||
| corporation, its general partner | ||||||||||
| By: | /s/ Jenny B. Neslin | |||||||||
| Name: Jenny B. Neslin | ||||||||||
| Title: General Counsel and | ||||||||||
| Secretary | ||||||||||
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
| SPONSOR: | ||
| NORTHSTAR REAL ESTATE INCOME | ||
| TRUST, INC., a Maryland corporation | ||
| By: | /s/ Jenny B. Neslin | |
| Name: Jenny B. Neslin | ||
| Title: General Counsel and Secretary | ||
| NORTHSTAR REAL ESTATE INCOME | ||
| TRUST OPERATING PARTNERSHIP, LP, a | ||
| Delaware limited partnership | ||
| By: | NorthStar Real Estate Income Trust, Inc., a | |
| Maryland corporation, its general partner | ||
| By: | /s/ Jenny B. Neslin | |
| Name: Jenny B. Neslin | ||
| Title: General Counsel and Secretary | ||
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
| ACKNOWLEDGED AND AGREED TO | ||
| AS OF JANUARY 6, 2016: | ||
| MEMBER: | ||
| NS INCOME DB LOAN MEMBER, LLC, | ||
| a Delaware limited liability company | ||
| By: | NorthStar Real Estate Income Trust Operating | |
| Partnership, LP, its sole member | ||
| By: | NorthStar Real Estate Income Trust, Inc. | |
| its general partner | ||
| By: | /s/ Jenny B. Neslin | |
| Name: Jenny B. Neslin | ||
| Title: General Counsel and Secretary | ||