Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 2 TO
CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT,
dated as of April 7, 2009 (this “ Amendment
”), by and among GRAMERCY WAREHOUSE FUNDING I LLC, a Delaware
limited liability company (together with its successors and
permitted assigns, “ GWF-I ”), as a borrower,
GKK TRADING WAREHOUSE I LLC, a Delaware limited liability company
(together with its successors and permitted assigns, “ GKK
Trading ” and together with GWF-I, the “
Borrowers ”), as a borrower, GRAMERCY CAPITAL CORP., a
Maryland corporation (together with its successors and permitted
assigns, “ Gramercy Capital ”), as a guarantor,
GKK CAPITAL LP, a Delaware limited partnership (together with its
successors and permitted assigns, “ GKK Capital
”), as a guarantor, GRAMERCY INVESTMENT TRUST, a Maryland
real estate investment trust (together with its successors and
permitted assigns, “ Gramercy REIT ”), as a
guarantor, GKK TRADING CORP., a Delaware corporation (together with
its successors and permitted assigns, “ GTC ”
and collectively with Gramercy Capital, GKK Capital and Gramercy
REIT, the “ Guarantors ”), as a guarantor, the
other entities from time to time party to the Credit Agreement as
Borrowers or Guarantors, the several banks and other financial
institutions as are, or may from time to time become parties to the
Credit Agreement (each, together with its successors and assigns, a
“ Lender ” and, collectively, the “
Lenders ”), as lenders and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative
agent for the Lenders under the Credit Agreement (in such capacity,
the “ Administrative Agent ”), amends that
certain Credit Agreement, dated as of July 22, 2008, as
previously amended pursuant to Amendment No. 1 to Credit
Agreement dated as of August 6, 2008 between and among each of
the parties to this Amendment (the “ Credit Agreement
”), by and among the Borrowers, the Guarantors, the
Administrative Agent and the other parties named therein or
referred to thereby. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit
Agreement.
RECITALS
Borrowers and Guarantors have
requested that Administrative Agent amend the Credit Agreement and
the Guarantee Agreement in the manner set forth in this
Amendment.
Therefore, in consideration of the
premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Borrowers,
the Guarantors and the Administrative Agent hereby agree as
follows:
SECTION 1.
New Defined
Terms . The following, new
defined terms are hereby added to Section 1.1 of the Credit
Agreement:
“ 100 Church M-1
” shall mean that certain senior mezzanine loan evidenced by
the Promissory Note (Senior Mezzanine), dated as of August 9,
2007, made by 100 Church Mezzanine LLC, a Delaware limited
liability company, in favor of Wachovia Bank, National
Association, a national banking
association, in the original principal amount of
$30,000,000.
“ 100 Church M-2
” shall mean shall mean that certain senior mezzanine loan
evidenced by the Promissory Note (Intermediate Mezzanine), dated as
of August 9, 2007, made by 100 Church Member LLC, a Delaware
limited liability company, in favor of Wachovia Bank, National
Association, a national banking association, in the original
principal amount of $30,000,000.
“ 2 Herald Mezz ”
shall mean GKK 2 Herald Mezz LLC, a Delaware limited liability
company.
“ 450 West 33rd ”
has the meaning set forth in the Fee and Pricing Letter.
“ 885 Third Mezz
” shall mean GKK 885 Third Mezz LLC, a Delaware limited
liability company.
“ Additional Cash
Collateral ” shall mean cash in an amount equal to
$13,000,000 delivered by the Borrowers to the Administrative Agent
to be used solely to collateralize the L/C Obligations arising with
respect to the Mortgage Obligation LCs.
“ CDO LC ” shall
mean the Administrative Agent’s Clean, Irrevocable Standby
Letter of Credit Number SM226417W, issued on June 22, 2007 for
the benefit of GKK Capital as applicant and naming GFW-1 and
Gramercy Warehouse Funding II as beneficiaries.
“ CDO LC Guarantee –
885 Third Mezz ” shall mean a guarantee, made solely by
885 Third Mezz, solely of the L/C Obligations arising with respect
to the CDO LC, such guarantee to be in form acceptable to the
Administrative Agent.
“ CDO LC Guarantee –
2 Herald Mezz ” shall mean a guarantee, made solely by 2
Herald Mezz, solely of the L/C Obligations arising with respect to
the CDO LC, such guarantee to be in form acceptable to the
Administrative Agent.
“ Guarantee Release Event -
2 Herald Mezz ” shall mean the first date upon which the
sum of (i) the amount of reduction in the face amount of the
CDO LC plus (ii) cash received by the Administrative Agent to
collateralize the L/C Obligations arising with respect to the CDO
LC, shall equal or exceed, in the aggregate,
$20,000,000.
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“ Guarantee Release
Event ” shall mean the first date upon which the sum of
(i) the amount of reduction in the face amount of the CDO LC
plus (ii) the proceeds of the sale of 450 West 33rd received
by the Administrative Agent for application in accordance with this
Agreement plus (iii) cash received by the Administrative Agent
to collateralize the L/C Obligations arising with respect to the
CDO LC, shall equal or exceed, in the aggregate, $23,000,000
including, without limitation, all cash received pursuant to
Section 5.30.
“ JER Longhouse ”
has the meaning set forth in the Fee and Pricing Letter.
“ Mortgage Obligation
LCs ” shall mean each of (i) the Administrative
Agent’s Clean, Irrevocable Standby Letter of Credit Number
SM226838W, issued on July 7, 2007 for the benefit of Gramercy
Capital as applicant, and naming Goldman Sachs Mortgage Company as
beneficiary, (ii) the Administrative Agent’s Irrevocable
Standby Letter of Credit Number SM226658W, issued on July 6,
2007 for the benefit of Gramercy Capital as applicant, and naming
Goldman Sachs Mortgage Company as beneficiary, and (iii) the
Administrative Agent’s Clean, Irrevocable Standby Letter of
Credit Number SM225127W, issued on April 2, 2007 for the
benefit of Gramercy Capital as applicant, and naming Goldman Sachs
Mortgage Company as beneficiary.
“ Net Interest Margin
” shall mean, with respect to any period, (i) the
aggregate amount of interest payments made or otherwise received on
the Specified Assets (including default interest payable
thereunder) minus (ii) the aggregate amount of interest
payable on the Loans and any amounts (other than breakage costs and
termination payment amounts) payable to an Affiliated Hedge
Counterparty under any Interest Rate Protection Agreement, in each
case during such period.
“ Second Amendment
” shall mean Amendment No. 2 to this Agreement, dated as
of April 6, 2009.
“ Specified Assets
” shall mean JER Longhouse, 1199 F Street, 100 Church M-1,
100 Church M-2, 450 West 33rd and Stuyvesant Interest.
“ Stuyvesant Interest
” shall mean forty percent (40%) of the one hundred percent
(100%) interest in the Gramercy Participation (as such term is
defined in that certain Participation Agreement dated as of
December 20, 2006 (as the same may be amended, restated,
renewed, supplemented or otherwise modified, the “
Participation
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Agreement ”), between GFW-1 and SLG Cooper Stuy
Funding, LLC, a Delaware limited liability company, with respect to
that certain loan in the original principal amount of $200,000,000,
evidenced by that certain Amended and Restated Promissory Note
dated as of February 16, 2007, made by PCV ST Mezz 11 LP, a
Delaware limited liability partnership and ST Mezz 11 LP, a
Delaware limited partnership, as maker, in favor of GFW-1, as
payee.
SECTION 2.
Amendments to
Defined Terms . Each of the following
definitions is hereby amended and restated in its entirety to read
as follows:
“ Change of Control
” shall mean the occurrence of any of the following events:
(a) a majority of the seats (other than vacant seats) on the
board of directors of Parent shall at any time be occupied by
persons who were neither (i) nominated by the board of
directors of Parent, nor (ii) appointed by directors so
nominated or (b) Parent shall cease to own and control,
directly or indirectly, 100% of each class of outstanding Capital
Stock of each Borrower or (c) any other event, if such other
event (A) would constitute a Change of Control-Former
Definition and (B) (1)causes a violation of Sections 3.26,
3.27 or 3.28 of the Credit Agreement or (2) occurs without
compliance by the Credit Parties with the reasonable requests of
the Administrative Agent or any Lender as necessary to permit the
Administrative Agent or a Lender to comply with any
“know-your-customer” regulations or similar
Requirements of Law. As used for purposes of clause
(c) of this definition, “Change of Control-Former
Definition” means “Change of Control” as defined
in the Credit Agreement as in effect prior to the Amendment
Effective Date.
“ Maturity Date ”
shall mean March 31, 2011.
“ Revolver Commitment
Period ” shall mean the period from and including the
Closing Date to and including March 29, 2009.
SECTION 3.
Certain
Prepayments; Extension of Maturity Date . Sections 2.4 and
2.7(b) of the Credit Agreement are each hereby deleted in
their entirety and the term “[reserved]” is inserted in
their place.
SECTION 4.
Distributions
from Collection Account .
Section 2.10(a)(ii) is hereby amended by:
(a) deleting the text
of clause FOURTH thereof in its entirety and inserting the term
“[reserved.]” in its place; and
(b) inserting a new
clause “SEVENTH PRIME” as set forth immediately below
and deleting the term “and” at the end of the existing
clause “SEVENTH”:
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SEVENTH PRIME
, to the extent of funds then
remaining available therefor after giving effect to the foregoing
clauses, an amount equal to the sum of (i) (100% of the
principal payments made on the Specified Assets, 100% of all other
fees and payments of any kind, excluding default interest and
including 60% of the Net Interest Margin for the period ending on
the relevant Payment Date; minus (ii) any such amounts
previously applied pursuant to clause FIFTH above, pari
passu and pro rata (based on the amounts owed to such Persons
under this clause) to the Lenders to prepay principal amounts of
Loans under this Agreement allocated to the Specified Assets
ratably (excluding 1199 F Street from such allocation until the
principal amount relating to all other Loans has been paid in full,
and then making such allocation entirely to 1199 F Street), and
thereafter make a corresponding reduction to the related Allocated
Term Loan Amounts (and, solely to the extent of amounts available
pursuant to this clause, such principal amounts shall be deemed to
be then due and payable); and
SECTION 5.
Financial
Statements .
Section 5.1(a) is hereby amended to change the phrase
“thirty (30) days” to “forty-five (45)
days.”
SECTION 6.
Liens.
Section 6.2 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section 6.2
Liens . The Credit Parties shall not sell, pledge,
assign or transfer to any other Person, or grant, create, incur,
assume, suffer or permit to exist any Lien on all or any portion of
the Collateral, other than Permitted Liens, whether now existing or
hereafter transferred hereunder, or any interest therein.
Immediately upon notice to any Credit Party of a Lien or any
circumstance which, if adversely determined would be reasonably
likely to give rise to a Lien (other than in favor of the
Administrative Agent or created by or through the Administrative
Agent), on all or any portion of the Collateral, the Borrowers
shall notify the Administrative Agent and the Borrowers shall
further defend the Collateral against, and will take such other
action as is necessary to remove, any Lien or claim on or to the
Collateral (other than any Permitted Liens created under this
Agreement and the Credit Documents), and the Borrowers shall defend
the right, title and interest of the Credit Parties in and to any
of the Collateral against the claims and demands of all Persons
whomsoever. Notwithstanding the foregoing, if a Credit Party
shall grant a Lien on any of the Collateral in violation of this
Section, then it shall be deemed to have simultaneously granted an
equal and ratable Lien on any such Collateral in favor of the
Administrative Agent for the ratable benefit of the Lenders and the
Affiliated Hedge Counterparty to the extent such Lien has not
already been granted to the Administrative Agent.
SECTION 7.
Financial
Covenants . Section 5.9 of
the Credit Agreement is hereby deleted in its entirety and the term
“[reserved]” is inserted in its place. The
parties hereto agree that the foregoing deletion at
Section 5.9 shall be effective as of March 31,
2009.
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SECTION 8.
Nature of
Business . Section 6.3 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Section 6.3.
Nature of Business . No Credit Party will, nor will it
permit any Subsidiary to, alter the character of its business in
any material respect from that conducted as of the Closing Date;
provided that the business conducted as of the Closing Date
shall be deemed to include management and investment management of
real estate-related assets and properties, servicing and related
activities in connection with real estate-related assets and
properties and investment in real estate-related securities
including through joint ventures. The Borrowers shall not
engage in any activity other than activities specifically permitted
by this Agreement, including, but not limited to, investment in
mortgage loans, mezzanine loans, participations and other real
estate related assets and the purchasing, financing and holding of
commercial mortgage-backed securities, collateralized debt
obligation securities and activities incident thereto.
SECTION 9.
Corporate
Changes; Material Contracts . Section 6.8 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Section 6.8
Corporate Changes; Material Contracts . No Credit
Party will, nor will it permit any Subsidiaries of Borrowers to,
(a) change its fiscal year, (b) amend, modify or change
its Authority Documents in any respect that is materially adverse
to the interests of the Lenders without the prior written consent
of the Administrative Agent; provided that no Credit Party shall
(i) except to the extent permitted under this Agreement, alter
its legal existence, identity or corporate structure or, in one
transaction or a series of transactions, merge into or consolidate
with any other entity, or sell all or substantially all of its
assets, (ii) change its state of incorporation or
organization, (iii) change its registered legal name or
(iv) change its organizational identification number, without
providing thirty (30) days prior written notice to the
Administrative Agent and without having first taken all action
required by the Administrative Agent for the purpose of perfecting
or protecting the liens and security interests of the
Administrative Agent and the Lenders established hereunder,
(c) amend, modify, cancel or terminate other than on its terms
or fail to renew or extend at the Credit Party’s or the
Subsidiary of a Borrower’s option or permit the amendment,
modification, cancellation or termination other than on its terms
of any of the Material Contracts other than the Management Contract
in any respect materially adverse to the interests of the Lenders
without first providing at least three (3) Business Days prior
written notice thereof, together with a reasonably detailed written
summary of the substance thereof and a signed and properly
completed Compliance Certificate, (d) change its state of
incorporation, organization or formation without the consent of the
Administrative Agent or have more than one state of incorporation,
organization or formation or (e) change its accounting method
(except in accordance with GAAP) in any manner adverse to the
interests of the Lenders without the prior written consent of the
Required Lenders.
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SECTION 10.
Limitation on
Restricted Actions . Section 6.9 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Section 6.9
Limitation on Restricted Actions . The Borrowers will
not, nor will Borrowers permit any Subsidiaries of Borrowers to,
directly or indirectly, create or otherwise cause or suffer to
exist or become effective any Lien or restriction on the ability of
a Borrower to (a) other than dividends to the Guarantors by
direct or indirect Subsidiaries of the Guarantors, pay dividends or
make any other distributions to any Credit Party on its Equity
Interest, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) other than in connection with Permitted
Investments or Permitted Indebtedness, make loans or advances to
any Credit Party, or (d) sell, lease or transfer any of its
Properties to any Credit Party except, in each case, pursuant to
the Credit Documents.
SECTION 11.
Certain
Affirmative Covenants . Each of
Section 6.7 and Section 6.12 of the Credit Agreement is
hereby deleted in its entirety and the term
“[reserved]” is inserted in its place.
SECTION 12.
REIT
Status . Section 6.10 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Section 6.10
Restricted Payments . No Credit Party shall declare or
make any payment on account of, or set apart assets for, a sinking
or other analogous fund for the purchase, redemption, defeasance,
retirement or other acquisition of any equity or partnership
interest of any Credit Party, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in
obligations
