Exhibit 10.37


 


AMENDMENT
NO. 1 TO

MASTER REPURCHASE AGREEMENT


 


AMENDMENT NO. 1 TO MASTER
REPURCHASE AGREEMENT, dated as of October 7, 2008 (this “Amendment”),
by and among NRFC JP HOLDINGS, LLC (the “Seller”), and JPMORGAN CHASE
BANK, N.A. (the “Buyer”).  Capitalized
terms used but not otherwise defined herein shall have the meanings given to
them in the Existing Repurchase Agreement (as defined below).


 


RECITALS


 


WHEREAS, the Seller and the Buyer are parties to that certain Master Repurchase Agreement, dated August 8,
2007 (the “Existing Repurchase Agreement”); and


 


WHEREAS, the Seller and the Buyer have agreed to amend the Existing
Repurchase Agreement to remove the concept of the Facility Amount (while
maintaining the uncommitted nature of the facility), to modify the servicing
provisions and to eliminate the existing Advance Rates and Applicable Pricing Rates.


 


Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Seller and the Buyer hereby agree as follows:


 


SECTION 1.                            Amendments.


 


(a)                                  Article 2
of the Existing Repurchase Agreement is hereby modified by deleting the defined
terms “Asset Type Grouping” and “Facility Amount” in their entirety.


 


(b)                                 Article 2
of the Existing Repurchase Agreement is hereby modified by inserting the
following new defined term in its proper alphabetical order:


 


““Wachovia Credit Facility” shall mean that certain Credit
Agreement, dated as of November 6, 2007, by and among NRFC WA Holdings,
LLC, NRFC WA Holdings II, LLC, NRFC WA Holdings VII, LLC, NRFC WA Holdings X,
LLC, NRFC WA Holdings XII, LLC, NorthStar Realty Finance Corp., NorthStar
Realty Finance L.P. and Wachovia Bank, National Association, as Administrative
Agent.”


 


(c)                                  Article 2
of the Existing Repurchase Agreement is hereby modified by inserting the
following new defined term in its proper alphabetical order:


 


““Servicing Rights” shall mean rights of any Person, to
administer, service or subservice, the Purchased Assets or to possess related
Servicing Records.”


 


(d)                                 Article 2
of the Existing Repurchase Agreement is hereby modified by deleting the defined
term “Applicable Spread” in its entirety and inserting the following defined
term in lieu thereof:


 

















 


““Applicable
Spread” shall mean, with respect to a Transaction
involving any Purchased Asset:


 


(i)                                     so
long as no Event of Default shall have occurred and be continuing, the
incremental per annum rate (expressed as a number of “basis points”, each basis
point being equivalent to 1/100 of 1%) as may be determined by Buyer in its
sole discretion, as determined by Buyer on each Pricing Rate Determination Date
in accordance with Article 3(d), and


 


(ii)                                  after the occurrence and during the
continuance of an Event of Default, the applicable incremental per annum rate
described in clause (i) of this definition, plus 400 basis points (4.00%).”


 


(e)                                  Article 2 of the
Existing Repurchase Agreement is hereby modified by deleting the defined term “Maximum
Advance Rate” in its entirety and inserting the following defined term in lieu
thereof:


 


““Maximum Advance Rate”
shall mean, with respect to each Purchased Asset, the “Advance Rate” as
determined by Buyer in its sole and absolute discretion.”


 


(f)                                    Article 2 of
the Existing Repurchase Agreement is hereby modified by deleting the defined
term “Purchase Price” in its entirety and inserting the following defined term
in lieu thereof:


 


““Purchase Price”
shall mean, with respect to any Purchased Asset, the price at which such
Purchased Asset is transferred by a Seller to Buyer on the applicable Purchase
Date, adjusted after the Purchase Date as set forth below.  The Purchase Price as of the Purchase Date
for any Purchased Asset shall be an amount (expressed in dollars) equal to the
product obtained by multiplying (i) the Market Value of such Purchased
Asset (or the par amount of such Purchased Asset, if lower than Market Value)
by (ii) the “Advance Rate” for such Purchased Asset, as determined by
Buyer in its sole and absolute discretion. 
The Purchase Price of any Purchased Asset shall be (x) increased by
any Future Funding Amounts disbursed by Buyer to Seller or the related borrower
with respect to such Purchased Asset and (y) decreased by (i) the
portion of any Principal Payments on such Purchased Asset that are applied
pursuant to Article 5 hereof to reduce such Purchase Price and (ii) any
other amounts paid to Buyer by Seller to reduce such Purchase Price.”


 


(g)                                 Article 3
of the Existing Repurchase Agreement is hereby modified by deleting the
existing title heading in its entirety and inserting the following title
heading in lieu thereof:


 


“ARTICLE 3.

INITIATION; CONFIRMATION;
TERMINATION; FEES”


 


(h)                                 Article 3
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 3(a)(xiii) and inserting the following paragraph in lieu
thereof:


 


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“Buyer shall have received payment from Seller, as consideration for
Buyer’s agreement to enter into this Agreement, an up-front structuring fee in
an amount equal to $350,000, such amount to be paid to Buyer in U.S. Dollars on
the Closing Date, in immediately available funds, without deduction, set-off or
counterclaim (the “Structuring Fee”); and”


 


(i)                                     Article 3
of the Existing Repurchase Agreement is hereby modified by deleting Article 3(b)(i)
in its entirety.


 


(j)                                     Article 3
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 3(b)(iii)(C) and inserting the following paragraph in
lieu thereof:


 


“Buyer shall have determined the Pricing Rate
applicable to the Transaction (including the Applicable Spread);”


 


(k)                                  Article 3
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 3(d) and inserting the following paragraph in lieu
thereof:


 


“With respect to
any Transaction, the Pricing Rate shall be determined initially on the Pricing
Rate Determination Date applicable to the first Pricing Rate Period for such
Transaction, and shall be reset on the Pricing Rate Determination Date for all
of the next succeeding Pricing Rate Periods for such Transaction.  Buyer or its agent shall determine in
accordance with the terms of this Agreement the Pricing Rate on each Pricing
Rate Determination Date for the related Pricing Rate Period in Buyer’s sole and
absolute discretion, exercised in good faith, and notify Seller of such rate
for such period each such Pricing Rate Determination Date.”


 


(l)                                     Article 3
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 3(n)(ii) and inserting the following paragraph in lieu
thereof:


 


“Upon written request of a Seller delivered to Buyer at least thirty
(30) days, but in no event earlier than sixty (60) days, prior to the then
current Final Maturity Date, and so long as no Margin Deficit, Default or Event
of Default and no event which has a Material Adverse Effect shall have occurred
and be continuing on the then current Final Maturity Date, Buyer may in its
sole discretion agree to extend the Maturity Date, for a period not to exceed
three-hundred and sixty-four (364) additional days (the “Wind Down Period”)
by giving notice to such Seller of such extension and of the end of the Wind
Down Period determined by Buyer; provided, that any failure by Buyer to
deliver notice to such Seller of any objection or rejection to such Wind Down
Period within fifteen (15) days from the date first received by Buyer shall be
deemed to be Buyer’s determination to extend the Final Maturity Date.  In no event shall the Final Maturity Date be
extended for more than one (1) Wind Down Period.  Prior to the Wind Down Period, Seller shall
pay down an amount equal to ten percent (10%) of the aggregate
Repurchase Price of all Purchased Assets subject to Transactions then
outstanding.  During the Wind Down Period, (i) Buyer
shall not finance any additional Eligible Assets from any Seller and (ii) for
each of the four (4) successive calendar quarters, Seller is required to pay
down an amount equal to twenty-five percent (25%) of the aggregate
Repurchase Price of all Purchased Assets subject to Transactions then
outstanding (determined as of the time
at which the ten 


 


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percent (10%) amount specified above was calculated) at the end of each
calendar quarter.  Notwithstanding any
other provision of this Article 3(n)(ii) or otherwise herein,
neither Buyer nor any of its Affiliates shall be under any obligation to extend
the original Final Maturity Date, as the same may have been extended pursuant
to this Article 3(n)(ii).”


 


(m)                               Article 4
of the Existing Repurchase Agreement is hereby modified by deleting existing Article 4(a)
and inserting the following paragraph in lieu thereof:


 


“If at any time
Buyer’s Margin Amount for all Purchased Assets is less than the Repurchase
Price for all Purchased Assets (a “Margin Deficit”), then Buyer may by
notice to Seller in the form of Exhibit XII (a “Margin Deficit
Notice”) require Seller to, at Seller’s option, no later than one (1) Business
Day following the receipt of a Margin Deficit Notice (the “Margin Deadline”)
(provided that if such Margin Deficit Notice is received by Seller after
8:00 a.m. EST, Seller shall have two (2) Business Days after receipt
thereof) to the extent such Margin Deficit equals or exceeds the Minimum
Transfer Amount, (i) transfer to Buyer for no additional consideration (by
transfer to Buyer or its designee (including the Custodian) Additional Eligible
Collateral, (ii) repurchase some or all of the Purchased Assets at their
respective Repurchase Prices, (iii) make a payment in reduction of the
Purchase Price (which payment may be paid by the withdrawal by Buyer of funds
held in the Depository Account after allocation and payment of any allocated
amounts then due and payable to Buyer and its Affiliates), or (iv) choose
any combination of the foregoing, such that, after giving effect to such
transfers, repurchases and payments, Buyer’s Margin Amount for all Purchased
Assets, shall be equal to or greater than the related Repurchase Price for all
Purchased Assets.”


 


(n)                                 Article 4
of the Existing Repurchase Agreement is hereby modified by deleting Article 4(b)
in its entirety.


 


(o)                                 Article 6
of the Existing Repurchase Agreement is hereby modified by inserting the
following paragraph as a new Article 6(e):


 


“Seller and
Guarantor each acknowledge that it has no rights to service the Purchased
Assets but only has rights as a party to the current Servicing Agreement or any
other servicing agreement with respect to the Purchased Assets.  Without limiting the generality of the
foregoing and in the event that any Seller or Guarantor is deemed to retain any
residual Servicing Rights, and for the avoidance of doubt, each Seller and
Guarantor grants, assigns and pledges to Buyer a security interest in the
Servicing Rights and proceeds related thereto and in all instances, whether now
owned or hereafter acquired, now existing or hereafter created.  The foregoing provision is intended to
constitute a security agreement or other arrangement or other credit
enhancement related to the Agreement and Transactions hereunder as defined
under Sections 101(47)(v) and 741(7)(x) of the Bankruptcy Code.”


 


(p)                                 Article 11
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 11(l) and inserting the following paragraph in lieu
thereof:


 


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“permit Guarantor’s
Liquidity to be less than the greater of (i) $15,000,000 or (ii) an
amount equal to ten percent (10%) of Guarantor’s and its consolidated Subsidiaries’
total Indebtedness (excluding (1) Non-Recourse Indebtedness and (2) Indebtedness
maturing after the Maturity Date) plus five
percent (5%) of the then-current aggregate outstanding amount due under the
Wachovia Credit Facility;”


 


(q)                                 Article 11
of the Existing Repurchase Agreement is hereby modified by deleting the
existing Article 11(p) and inserting the following paragraph in lieu
thereof:


 


“permit the ratio
of (A) Guarantor’s and its consolidated Subsidiaries’ Indebtedness
(excluding Non-Recourse Indebtedness, borrowings under the Unsecured Credit
Facility and trust preferred securities) to (B) Adjusted Total Assets of
Guarantor and its consolidated Subsidiaries to exceed 0.12 to 1.00;”


 


(r)                                    Article 28
of the Existing Repurchase Agreement is hereby modified by inserting the
following paragraph as a new Article 28(g):


 


“For the avoidance
of doubt, no Seller retains any economic rights to the servicing, other than a
Seller’s rights under the Servicing Agreement or any other servicing agreement
related to the Purchased Assets.  As
such, each Seller expressly acknowledges that the Purchased Assets are sold to
Buyer on a “servicing released” basis with such servicing retained by the
Servicer.”


 


(s)                                  Schedule
I to the Existing Repurchase Agreement is hereby modified by deleting such
Schedule I in its entirety.


 


SECTION 2.                            Other
Agreements.


 


(a)          The
Seller and Buyer acknowledge and agree that any references to the Facility
Amount or a maximum available amount are hereby deleted in their entirety and
shall have no further force or effect; provided, however, that the
Existing Repurchase Agreement (as modified by this Amendment) shall continue to
be an uncommitted repurchase facility and that Buyer shall enter into any
further Transactions in its sole and absolute discretion.


 


(b)         Each
Transaction and all new Transactions shall be subject to and governed by the
terms of the related Confirmation (including, but not limited to, the
Applicable Spread and Pricing Rate contained therein) which terms shall not be
amended without the prior written consent of the Seller and Buyer.


 


(c)          Buyer shall continue to be entitled to make a
determination, in the exercise of its sole discretion, that, in the case of any
new Transaction, it shall or shall not purchase any or all of the assets
proposed to be sold to Buyer by Seller. 
If Buyer makes such a determination to purchase one or more assets proposed to be sold by Seller, in no event
shall, both immediately prior to the requested Transaction and also after
giving effect thereto, the aggregate Repurchase Price for all Purchased
Assets subject to Transactions then outstanding exceed $150,000,000.


 


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SECTION 3.                            Conditions
Precedent.  This Amendment and its
provisions shall become effective on the date on which the Buyer shall have
received this Amendment, executed and delivered by a duly authorized officer of
each Seller and the Buyer (the “Amendment Effective Date”).


 


SECTION 4.                            Representations
and Warranties.  Seller hereby
represents and warrants to the Buyer, as of the date hereof and as of the
Amendment Effective Date, that (i) the Seller is in compliance with all of
the terms and provisions set forth in the Existing Repurchase Agreement and the
other Transaction Documents on its part to be observed or performed, (ii) no
Default or Event of Default has occurred or is continuing, (iii) the Seller
has no, and hereby waives all, defenses, rights of setoff, claims,
counterclaims or causes of action of any kind or description against the Buyer
arising under or in respect of the Existing Repurchase Agreement or any other Transaction
Document and (iv) the Buyer is in full compliance with its undertakings
and obligations under the Existing Repurchase Agreement and the other Transaction
Documents.  Seller hereby confirms and
reaffirms the representations and warranties contained in the Existing Repurchase
Agreement and all of the other Transaction Documents.


 


SECTION 5.                            Limited
Effect.  Except as expressly amended
and modified by this Amendment, the Existing Repurchase Agreement and each of
the other Transaction Documents shall continue to be, and shall remain, in full
force and effect in accordance with their respective terms; provided, however,
that upon the Amendment Effective Date, each reference therein and herein to
the “Transaction Documents” shall be deemed to include, in any event, this
Amendment and each reference to the “Repurchase Agreement” in any of the Transaction
Documents shall be deemed to be a reference to the Existing Repurchase
Agreement as amended hereby.


 


SECTION 6.                            Counterparts.  This Amendment may be executed by each of the
parties hereto on 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.


 


SECTION 7.                            Expenses.  The Seller agrees to pay and reimburse the
Buyer for all of the out-of-pocket costs and expenses incurred by the Buyer in
connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the fees and disbursements of Cadwalader,
Wickersham & Taft LLP, counsel to the Buyer.


 


SECTION 8.                            GOVERNING
LAW.  THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


[SIGNATURES FOLLOW]


 


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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.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  NRFC JP HOLDINGS, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Albert Tylis

  
	
   

  	
   

  	
  Name: Albert Tylis

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President, General Counsel
  & Secretary

  



 


[SIGNATURES CONTINUE ON
FOLLOWING PAGE]


 

















 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., a
  national

  banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kunal K. Singh

  
	
   

  	
   

  	
    Name: Kunal K. Singh

  
	
   

  	
   

  	
    Title: Vice President

  



 


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