Exhibit 10.37


 


NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP


 


Fifth Amendment to the

Agreement of Limited Partnership of NorthStar Realty Finance Limited
Partnership


 


This Amendment is made as of May 29, 2008, by
NORTHSTAR REALTY FINANCE CORP., a Maryland corporation, as general partner (the
“General Partner”), of NORTHSTAR REALTY FINANCE LIMITED PARTNERSHIP, a
Delaware limited partnership (the “Partnership”), for the purpose of
further amending the Agreement of Limited Partnership of the Partnership dated October 19,
2004, as amended by the First Amendment to the Agreement of Limited
Partnership, dated as of March 14, 2006, the Second Amendment to the
Agreement of Limited Partnership, dated September 14, 2006, the Third
Amendment to the Agreement of Limited Partnership, dated February 7, 2007
and the Fourth Amendment to the Agreement of Limited Partnership, dated May 24,
2007 (as so amended,
the “Partnership Agreement”).  All
capitalized terms used herein and not defined shall have the respective
meanings ascribed to them in the Partnership Agreement.


 


WHEREAS, Section 4.2(a) of the
Agreement grants the General Partner authority to cause the Partnership to
issue additional Partnership Interests in one or more classes or series, with
such designations, rights, powers, preferences and duties as may be determined
by the General Partner in its sole and absolute discretion;


 


WHEREAS, Section 7.3(c) of
the Partnership Agreement permits the General Partner, without the consent of
the Limited Partners, to amend the Partnership Agreement to facilitate the
purpose of issuing additional Partnership Interests in accordance with Section 4.2
of the Partnership Agreement; and


 


WHEREAS, the General Partner desires
by this Amendment to amend the Partnership Agreement as of the date hereof.


 


NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the General Partner hereby amends
the Partnership Agreement as follows:


 


1.                                       Amendments to Partnership Agreement.


 


The General Partner, as general partner of the
Partnership and as attorney-in-fact for its Limited Partners, hereby amends the
Partnership Agreement as follows:


 

















 


A.                                   Article I of the Partnership Agreement
is amended by inserting the following definition in alphabetical order:


 


“Book-Up
Target” for each LTIP Unit means the lesser of (i) the
Partnership Common Unit Economic Balance as determined on the date such LTIP
Unit was granted and as reduced (not to less than zero) by allocations of
Liquidating Gains pursuant to Section 6.3(b) and reallocations of
Economic Capital Account Balances to such LTIP Unit as a result of a forfeiture
of an LTIP Unit, as determined by the General Partner and (ii) the amount
required to be allocated to such LTIP Unit for the Economic Capital Account
Balance, to the extent attributable to such LTIP Unit, to be equal to the
Partnership Common Unit Economic Balance. 
Notwithstanding the foregoing, the Book-Up Target shall be equal to zero
for any LTIP Unit for which the Economic Capital Account Balance attributable
to such LTIP Unit has, at any time, reached an amount equal to the Partnership
Common Unit Economic Balance determined as of such time.


 


B.                                     Section 6.3(b) of the Partnership
Agreement is amended by replacing the existing text with the following:


 


(b) Special
Allocations Regarding LTIP Units.


 


(i)                                   In the event that Liquidating Gains or
Liquidating Losses are allocated under this Section 6.3(b), Net Income and
Net Loss shall be recomputed without regard to the Liquidating Gains or
Liquidating Losses so allocated (subject to any prior allocation of Net Income
or Net Loss otherwise provided for).


 


(ii)                                Notwithstanding the provisions of Section 6.2
above, but subject to the prior allocation of income, gain, deduction and loss
under paragraph (a) above and to the terms of any Partnership Unit
Designation in respect of any class of Partnership Interests ranking senior to
the LTIP Units with respect to return of capital or any preferential or
priority return, any Liquidating Gains shall first be allocated to the LTIP
Unitholders until the Economic Capital Account Balances of such LTIP
Unitholders, to the extent attributable to their ownership of LTIP Units, are
equal to (i) the Partnership Common Unit Economic Balance, multiplied by (ii) the
number of their LTIP Units.  Any such
allocations of Liquidating Gain shall be made among the LTIP Unitholders in
proportion to the amounts required to be allocated to each under this Section 6.3(b).


 


(iii)                             Liquidating Gain allocated to an LTIP
Unitholder under this Section 6.3(b) will be attributed to specific
LTIP Units of such LTIP Unitholder for purposes of determining (i) allocations
under this Section 6.3(b), (ii) the effect of the forfeiture or
conversion of specific LTIP Units on such LTIP Unitholder’s Economic Capital
Account Balance and (iii) the ability of such LTIP Unitholder to convert
specific LTIP Units into Common Units. 
Such Liquidating Gain will be attributed to LTIP Units in the 


 


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following order:  (i) first, to vested LTIP Units held for
more than two years, (ii) second, to vested LTIP Units held for two years
or less, (iii) third, to unvested LTIP Units that have remaining vesting
conditions that only require continued employment or service to the Company,
the Partnership or an Affiliate of either for a certain period of time (with
such Liquidating Gains being attributed in order of vesting from soonest
vesting to latest vesting), and (iv) fourth, to other unvested LTIP Units
(with such Liquidating Gains being attributed in order of issuance from
earliest issued to latest issued). 
Within each such category, Liquidating Gain will be allocated serially (i.e.,
entirely to the first unit in the category, then entirely to the next unit in
the category, and so on, until a full allocation is made to the last unit in
the category) in the order of smallest Book-Up Target to largest Book-Up Target
until the Economic Capital Account Balance of such LTIP Unitholder attributable
to such LTIP Unitholder’s ownership of each LTIP Unit in the category is equal
to the Partnership Common Unit Economic Balance;  provided, however, that if there is
not sufficient Liquidating Gain for the Economic Capital Account Balance of
such LTIP Unitholder attributable to such LTIP Unitholder’s ownership of each
LTIP Unit to be equal to the Partnership Common Unit Economic Balance and the
Book-Up Target for any LTIP Unit is less that the amount required to be
allocated to the LTIP Unit for the Economic Capital Account attributable to the
LTIP Unit to equal the Partnership Common Unit Economic Balance, then
Liquidating Gains shall be allocated pursuant to the waterfall set forth in 6.3(b) (iii)(i) –(iv) above
until the Book-Up Target of each such LTIP Unit in each category has been
reduced to zero and, thereafter, any remaining Liquidating Gain shall be
further allocated pursuant to such waterfall until the Economic Capital Account
Balance of an LTIP Unitholder attributable to such LTIP Unitholder’s ownership
of each LTIP Unit in the category is equal to the Partnership Common Unit
Economic Balance.


 


(iv)                            Notwithstanding the provisions of Section 6.2
above, but subject to the prior allocation of income, gain, deduction and loss
under paragraph (a) above and to the terms of any Partnership Unit
Designation in respect of any class of Partnership Interests ranking senior to
the LTIP Units with respect to return of capital or any preferential or
priority return, in the event that, due to distributions with respect to Common
Units in which the LTIP Units do not participate or otherwise, the Economic
Capital Account Balance of any present or former LTIP Unitholder, to the extent
attributable to the LTIP Unitholder’s ownership of LTIP Units, exceeds the
Partnership Common Unit Economic Balance, the amount of such excess shall be
re-allocated to such LTIP Unitholder’s remaining LTIP Units to the same extent
and in the same manner as would apply pursuant to Section 6.3(b)(v) below
in the event of a forfeiture of LTIP Units. 
To the extent such excess may not be re-allocated, Liquidating Losses
shall be allocated to such LTIP Unitholder to the extent necessary to reduce or



 


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eliminate the disparity;
provided, however, that if Liquidating Losses are insufficient to completely
eliminate all such disparities, such losses shall be allocated among the LTIP
Unitholders as reasonably determined by the General Partner.


 


(v)                               If an LTIP Unit Limited Partner forfeits
any LTIP Units to which Liquidating Gain has previously been allocated under
this Section 6.3(b) the Capital Account associated with such
forfeited LTIP Units will be re-allocated to that LTIP Unitholder’s remaining
LTIP Units using a methodology similar to that described in Section 6.3(b)(iii) above
to the extent necessary to cause such LTIP Unitholder’s  Economic Capital Account Balance attributable
to each LTIP Unit to equal the Partnership Common Unit Economic Balance.  To the extent such Liquidating Gains are not
re-allocated in accordance with the forgoing, such Liquidating Gains will be
forfeited and the LTIP Unitholder’s Economic Capital Account Balance will be
reduced accordingly.


 


(vi)                            For this purpose, “Liquidating Gains”
means any net capital gain realized in connection with the actual or
hypothetical sale of all or substantially all of the assets of the Partnership,
including but not limited to net capital gain realized in connection with an
adjustment to the Gross Asset Value of Partnership Assets under paragraph (b) of
the definition of “Gross Asset Value.” 
Similarly, “Liquidating Losses” means any net capital loss
realized in connection with any such event. 
The “Economic Capital Account Balances” of the LTIP Unitholders
will be equal to their Capital Account balances, plus the amount of their
shares of any Partner Minimum Gain or Partnership Minimum Gain, in either case
to the extent attributable to their ownership of LTIP Units.  Similarly, the “Partnership Common Unit
Economic Balance” shall mean (i) the Capital Account balance of the
General Partner, plus the amount of the General Partner’s share of any Partner
Minimum Gain or Partnership Minimum Gain, in either case to the extent
attributable to the General Partner’s ownership of Partnership Common Units and
computed on a hypothetical basis after taking into account all allocations
through the date on which any allocation is made under this Section 6.3(b),
divided by (ii) the number of the General Partner’s Partnership Common
Units.


 


(vii)                         The parties agree that the intent of this
Section 6.3(b) is to make the Capital Account balance associated with
each LTIP Unit economically equivalent to the Capital Account balance
associated with the General Partner’s Partnership Common Units (on a per-unit
basis).


 


2.                                       Continuation of Partnership Agreement.


 


The Partnership Agreement
and this Amendment shall be read together and shall have the same force and
effect as if the provisions of the Partnership Agreement and this 


 


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Amendment were contained in
one document.  Any provisions of the
Partnership Agreement not amended by this Amendment shall remain in full force
and effect as provided in the Partnership Agreement immediately prior to the
date hereof.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Amendment to the Partnership Agreement as of
the 29th day of May, 2008.


 


 


	
   

  	
  GENERAL PARTNER:

  
	
   

  	
   

  
	
   

  	
  NORTHSTAR REALTY FINANCE
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Albert Tylis

  	
   

  
	
   

  	
   

  	
  Name: Albert Tylis

  
	
   

  	
   

  	
  Title: Executive Vice
  President & General Counsel

  



 


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