Fifth Amendment to Master Repurchase Agreement dated as of February 16, 2022 between FS CREIT Finance BB-1 LLC and Barclays Bank PLC
FIFTH AMENDMENT TO
MASTER REPURCHASE AGREEMENT
FIFTH AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated February 16, 2022 (this Amendment), is entered into by and between FS CREIT FINANCE BB-1 LLC, a limited liability company organized under the laws of the State of Delaware (Seller), and BARCLAYS BANK PLC, a public limited company organized under the laws of England and Wales (including any successor thereto, Purchaser). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Master Repurchase Agreement (as defined below).
WHEREAS, Purchaser and Seller are parties to that certain Master Repurchase Agreement, dated as of February 22, 2021, as amended by the First Amendment to Master Repurchase Agreement, dated as of May 20, 2021, as further amended by the Second Amendment to Fee Letter and Second Amendment to Repurchase Agreement, dated as of August 5, 2021, as further amended by the Third Amendment to Master Repurchase Agreement, dated as of October 7, 2021, and as further amended by the Fourth Amendment to Master Repurchase Agreement, dated as of January 18, 2022 (the Existing Repurchase Agreement and, as amended by this Amendment, and as hereafter further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the Master Repurchase Agreement); and
WHEREAS, the parties hereto desire to make certain amendments and modifications to the Existing Repurchase Agreement as further set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
AMENDMENT TO THE MASTER REPURCHASE AGREEMENT
Article 2 of the Existing Repurchase Agreement is hereby amended by amending and restating the following definition in its appropriate alphabetical order:
Maximum Facility Purchase Price shall mean (i) from and including February 16, 2022 through and including May 31, 2022 (the Upsize Period), $700,000,000 and (ii) for any date after May 31, 2022, $450,000,000; provided that, during the Upsize Period, (a) no Draw Fee shall be deemed due, earned and payable with respect to any Purchase Price paid to Seller that causes the aggregate outstanding Purchase Price to exceed $450,000,000 and (b) for purposes of clause (y) of the definition of Facility Year Draw Fee Cap in the Fee Letter, the Maximum Facility Purchase Price shall be deemed to be $450,000,000.
Seller represents and warrants to Purchaser, as of the date of this Amendment, as follows:
(a) all representations and warranties made by it in the Existing Repurchase Agreement (other than those contained in Article 10(w), which shall be considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets, unless (i) Seller shall have made any such representations and warranties with actual knowledge that they were materially false or misleading at the time made; or (ii) any such representations and warranties have been determined by Purchaser in its sole and absolute discretion to be materially false or misleading on a regular basis) are true, correct and complete in all material respects with the same force and effect as if made on and as of the date hereof, except to the extent any such representation and warranty expressly refers to a prior date;
(b) it is duly authorized to execute and deliver this Amendment and has taken all necessary action to authorize such execution, delivery and performance;
(c) the person signing this Amendment on its behalf is duly authorized to do so on its
(d) the execution, delivery and performance of this Amendment will not violate any Requirement of Law applicable to it or its organizational documents or any agreement by which it is bound or by which any of its assets are affected; and
(e) this Amendment has been duly executed and delivered by it.
The effectiveness of this Amendment is subject to the delivery to Purchaser of the following:
(a) this Amendment, duly completed and executed by each of the parties hereto; and
(b) a reaffirmation agreement executed by FS Credit Real Estate Income Trust, Inc., a Maryland corporation, in the form and substance reasonably acceptable to Purchaser, reaffirming the terms of that certain Guaranty, dated as of February 22, 2021 (as amended, restated supplemented or otherwise modified from time to time, the Guaranty), and acknowledging that the terms of the Guaranty remain in full force and effect;
(c) bring-down of the opinions delivered by counsel to Seller and Guarantor on the Closing Date in form and substance reasonably acceptable to Purchaser; and
(d) for Seller and Guarantor, good standing certificates dated within fourteen (14) calendar days prior to the effective date of this Amendment, certified true and complete copies of organizational documents and certified true, correct and complete copies of resolutions (or similar authority documents) with respect to the execution, delivery and performance of this Amendment and each other document to be delivered by such party from time to time in connection herewith, in each case included in a certificate delivered by an officer of Guarantor.
FEES AND EXPENSES
(a) On the date hereof, as a condition precedent to the effectiveness of this Amendment, Seller shall pay to Purchaser an amount equal to $90,277.78.
(b) Seller shall pay on demand all of Purchasers reasonable out-of-pocket costs and expenses, including reasonable fees and expenses of attorneys, incurred in connection with the preparation, negotiation, execution and consummation of this Amendment.
THIS AMENDMENT (AND ANY CLAIM OR CONTROVERSY HEREUNDER) SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
(a) Except as expressly amended or modified hereby, the Transaction Documents shall remain in full force and effect in accordance with their terms and are hereby ratified and confirmed. All references to the Transaction Documents shall be deemed to mean the Transaction Documents as modified by this Amendment.
(b) This Amendment may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment in electronic format shall be as effective as delivery of a manually executed original counterpart of this Amendment.
(c) The headings in this Amendment are for convenience of reference only and shall not affect the interpretation or construction of this Amendment.
(d) This Amendment may not be amended or otherwise modified, waived or supplemented except as provided in the Master Repurchase Agreement.
(e) This Amendment contains a final and complete integration of all prior expressions by the parties with respect to the subject matter hereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f) This Amendment and the Repurchase Agreement, as amended hereby, are a single Transaction Document.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
|BARCLAYS BANK PLC|
/s/ Francis X. Gilhool
|Name: Francis X. Gilhool|
|Title: Authorized Signatory|
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Barclays-FS CREIT Fifth Amendment to Master Repurchase Agreement
|FS CREIT FINANCE BB-1 LLC|
/s/ Edward T. Gallivan, Jr.
|Name: Edward T. Gallivan, Jr.|
|Title: Chief Financial Officer|
Barclays-FS CREIT Fifth Amendment to Master Repurchase Agreement