AMENDMENT NO. 4
TO MASTER REPURCHASE AGREEMENT
Amendment
No. 4, dated as of November 13, 2008 (this
“Amendment” ), among COLUMN FINANCIAL, INC. (the
“Buyer ”), CARE QRS 2007 RE HOLDINGS CORP. (the
“Seller ”), CARE MEZZ QRS 2007 RE HOLDINGS CORP.
(the “ Mezzanine Loan Subsidiary ”) and CARE
INVESTMENT TRUST INC. (the “Guarantor
”).
The Buyer, the
Seller, the Mezzanine Loan Subsidiary and the Guarantor are parties
to that certain Master Repurchase Agreement, dated as of
October 1, 2007, as amended by Amendment No. 1, dated as
of December 17, 2007, Amendment No. 2, dated as of
March 6, 2008 and Amendment No. 3, dated as of
June 26, 2008 (the “Existing Repurchase Agreement
”; as amended by this Amendment, the “Repurchase
Agreement” ). The Guarantor is party to that certain
Guaranty (the “Guaranty ”) dated as of
October 1, 2007. Capitalized terms used but not otherwise
defined herein shall have the meanings given to them in the
Existing Repurchase Agreement and the Guaranty.
The Buyer, the
Seller, the Mezzanine Loan Subsidiary and the Guarantor have
agreed, subject to the terms and conditions of this Amendment, that
the Existing Repurchase Agreement be amended to reflect certain
agreed upon revisions to the terms of the Existing Repurchase
Agreement. As a condition precedent to amending the Existing
Repurchase Agreement, the Buyer has required the Guarantor to
ratify and affirm the Guaranty on the date hereof.
Accordingly, the
Buyer, the Seller, the Mezzanine Loan Subsidiary and the Guarantor
hereby agree, in consideration of the mutual promises and mutual
obligations set forth herein, that the Existing Repurchase
Agreement is hereby amended, and the Guaranty is hereby ratified
and affirmed, as follows:
Section 1.
Definitions . Section 2 of the Existing Repurchase
Agreement is hereby amended by adding the following definition in
its proper alphabetical order:
“
EBITDA ” means, for any period and any Person, the
earnings of such Person for such period as determined in accordance
with GAAP, before (a) the deduction of consolidated interest
expenses, taxes, depreciation and amortization, (b) the
deduction of pro rata interest expenses, taxes, depreciation and
amortization from unconsolidated joint venture and/or partnership
interests and (c) losses associated with asset sales to the
Manager.
Section 2.
Covenants . Section 14(x)(3) of the Existing
Repurchase Agreement is hereby amended by deleting it in its
entirety and replacing it with the following language:
“(3)
Guarantor shall not permit, EBITDA to be less than $1.00 for any
Test Period.”
Section 3.
Exhibits . Exhibit C of the Existing Repurchase
Agreement is hereby amended by deleting it in its entirety and
replacing it with Exhibit A attached hereto.
Section 4.
Conditions Precedent . This Amendment shall be effective as
of September 30, 2008 (the “ Amendment Effective
Date ”’), subject to the satisfaction of the
following condition precedents:
(a) the Buyer
shall have received this Amendment, executed and delivered by duly
authorized officers of the Buyer, the Seller, the Guarantor and the
Mezzanine Loan Subsidiary.
Section 5.
Representations and Warranties . The Seller and the
Mezzanine Loan Subsidiary each hereby represents and warrants to
the Buyer that it is in compliance with all the terms and
provisions set forth in the Repurchase Agreement on its part to be
observed or performed, and that no Event of Default has occurred or
is continuing, and hereby confirms and reaffirms the
representations and warranties contained in Section 13 of the
Repurchase Agreement.
Section 6.
Limited Effect . Except as expressly amended and modified by
this Amendment, the Existing Repurchase Agreement shall continue to
be, and shall remain, in full force and effect in accordance with
its terms. Other than as expressly set forth herein, the execution
of this Amendment by the Buyer shall not operate as a waiver of
any
|
