Attached files
| file | filename |
|---|---|
| 8-K - Gramercy Property Trust Inc. | v177244_8k.htm |
| EX-10.3 - Gramercy Property Trust Inc. | v177244_ex10-3.htm |
| EX-10.2 - Gramercy Property Trust Inc. | v177244_ex10-2.htm |
SECOND AMENDMENT TO LOAN
AGREEMENT
This Second Amendment to Loan Agreement
(this “Amendment”), dated as
of March 9, 2010, by and among GOLDMAN SACHS MORTGAGE COMPANY, a New York
limited partnership (“GSMC”) and
successor-in-interest to Goldman Sachs Commercial Mortgage Capital, L.P.,
CITICORP NORTH AMERICA, INC., a New York corporation (“Citigroup”), and SL
GREEN REALTY CORP., a Maryland corporation (“SL Green”, and
together with GSMC, Citigroup and their respective successors and assigns,
collectively, “Lender”), as lender,
and each of the entities listed as a “Borrower” on the signature pages hereto,
collectively, jointly and severally, together with their respective permitted
successors and assigns, “Borrower”), amends
that certain Loan Agreement, dated as of April 1, 2008, as amended by that
certain Amendment to Loan Agreement, dated as of August 22, 2008 (the
“Loan
Agreement”; all capitalized terms used but not defined herein shall have
the respective meanings given such terms in the Loan Agreement).
WHEREAS,
Lender and Borrower desire to further amend the Loan Agreement with respect to
the matters set forth herein.
NOW
THEREFORE, in consideration of the mutual premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby represent, warrant, covenant and agree
as follows:
Section
1. Amendments of Loan
Agreement. Lender and Borrower hereby agree to amend the terms
of the Loan Agreement as hereinafter set forth:
(a) The
defined term “LIBOR Strike Rate” is hereby deleted in its entirety and the
following is inserted in lieu thereof:
““LIBOR Strike Rate”
means (1) with respect to the Initial Interest Rate Cap Agreement, 5.25%; and
(2) with respect to any Extension Interest Rate Cap Agreement,
6.00%.”
(b) The
defined term “Major Lease” is hereby deleted in its entirety and the following
is inserted in lieu thereof:
““Major Lease” means
any Lease which (i) when aggregated with all other Leases at the applicable
Property with the same Tenant (or affiliated Tenants), and assuming the exercise
of all expansion rights and all preferential rights to lease additional space
contained in each such Lease, is expected to contribute more than 15% of Net
Operating Income during any 12-month period (after adjustment to eliminate the
effect of free rent periods), (ii) is with an Affiliate of Borrower as Tenant,
(iii) requires an expenditure by landlord of $1,000,000 or more with respect to
Tenant Improvements and/or Leasing Commissions applicable to such Lease, or (iv)
is entered into during the continuance of an Event of Default.”
(c) The
following definitions are hereby inserted in the “DEFINITIONS” section of the
Loan Agreement in alphabetical order:
1
““Permitted
Distributions” means:
(1)
a single distribution from the Qualified Operating Account to reimburse Sponsor
for costs and expenses related to compliance with Section 1.2(b) of the
Loan Agreement, the Mezzanine Loan Agreement and the Junior Mezzanine Loan
Agreement and the related amendments of such loan agreements, provided that such
distribution does not cause the amount contained in the Qualified Operating
Account to be less than $5,000,000; and
(2)
without regard to the distribution described in preceding clause (1),
distributions from the Qualified Operating Account, to the extent such
distributions (i) do not exceed $2,500,000 per Fiscal Quarter in the aggregate,
and (ii) are used solely for the purpose payment (or reimbursement) of corporate
overhead actually incurred and allocated to AFRT.”
““Qualified Operating
Account” means the account identified as follows:
|
Account
Holder
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First
States Group
680
Old York Road
Jenkintown,
PA 19046
|
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Bank
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Wachovia
Bank N.A.
|
|
Account
Number
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2000011520836
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ABA
Number
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031
201 467”
|
““Qualified Operating Account
Control Agreement” means an agreement relating to the Qualified Operating
Account, among Mezzanine Lender, Junior Mezzanine Lender, the holder of such
account and the Eligible Institution at which such account is maintained,
pursuant to which such account is pledged to Mezzanine Lender and Junior
Mezzanine Lender and Borrower is given full access to the funds on deposit
therein but provides for the discontinuance of such access upon receipt by such
Eligible Institution of written notice from Servicer of the occurrence and
continuance of a Mezzanine Loan Event of Default, as such agreement may be
amended, modified, supplemented, or replaced in accordance
herewith.”
(d)
Section 3.2(a) of the Loan Agreement is hereby modified by deleting the last
sentence thereof.
(e) The
following is hereby inserted immediately following Section 3.6 of the Loan
Agreement:
2
“3.7. Qualified Operating Account;
No Distributions. Borrower shall cause the Qualified
Operating Account to be maintained at all times. Borrower shall (i)
cause all amounts payable with respect to operating expenses for the Properties
to be paid exclusively from the Qualified Operating Account or a Collateral
Account and no other account, (ii) not permit excess cash attributable to the
Properties to be contained in any account other than the Qualified Operating
Account or a Collateral Account, and (iii) not permit the amounts contained in
the Qualified Operating Account to be used for any purpose other than in
connection with the Properties and the making of Permitted
Distributions. Borrower shall not permit any distributions, transfers
or disbursements to be made from the Qualified Operating Account (or any other
account containing funds related to the Properties and/or the operations of
American Financial Realty Trust) to direct or indirect equityholders in Junior
Mezzanine Borrower, except for Permitted Distributions. In the event
that any distribution described in clause (2) of the definition of “Permitted
Distribution” shall be in excess of the amount required to pay the corporate
overhead of American Financial Realty Trust for the period for which such
Permitted Distribution was made (as a result of such overhead being less than
the amount budgeted therefor), Borrower shall cause such excess to be promptly
returned to the Qualified Operating Account. Borrower shall deliver
to Lender each month the monthly bank statement related to the Qualified
Operating Account.”
(g)
Section 5.14 of the Loan Agreement is hereby modified by inserting the following
immediately after clause (iii) thereof:
“Notwithstanding
anything to the contrary contained in this Section 5.14, from
and after the first day of the Extension Term, without further request from
Lender, Borrower shall deliver to Lender the monthly reports described in this
Section 5.14
for each month until the Indebtedness has been repaid in full. All
such reports shall include, in addition to the information described above,
monthly cash flow statements tied to bank statements, including a reconciliation
of beginning cash balances to ending cash balances (including, without
limitation, a reconciliation of the Qualified Operating Account as to income
from rents, operating expenses, Tenant Improvements and Leasing Commissions,
Permitted Distributions and such other items as Lender shall reasonably
request).”
(h) The
following Section 5.21 is hereby inserted immediately following Section 5.20 of
the Loan Agreement:
“5.20. Business
Plan. Within 90 days after the first day of the Extension
Term, Borrower shall deliver to Lender a comprehensive long-term business plan
and restructuring proposal addressing repayment of the Loan, in each case, in a
format, and containing a level of detail, reasonably acceptable to
Lender. Such comprehensive long-term business plan and restructuring
proposal shall include, without limitation, (i) income statements, balance
sheets and cash flow statements for the Properties as a whole, as well as profit
and loss statements for each individual Property, in each case, prepared in
accordance with GAAP, (ii) individual Property-level projections, projected rent
rolls and such other projections as Lender shall reasonably request, (iii) a
detailed narrative as to all material operating, balance sheet and financing
assumptions and (iv) such other reports and components as Lender shall
reasonably request. To the extent applicable, the foregoing shall be
presented on a monthly basis for the first 12 months of the period covered by
such plans and on an annual basis for the remainder of the period covered by
such plans.”
3
Section
2. Conditions
Precedent. Contemporaneously with the execution and delivery
of this Amendment, Borrower shall comply with the conditions set forth in
Section 1.2(b) of the Loan Agreement, as modified by this Amendment (Lender
hereby acknowledging satisfaction of clause (i) thereof). In
addition, the effectiveness of this Amendment is subject to the satisfaction of
the following conditions:
(a) On
the effective date of this Amendment, the Qualified Operating Account shall
contain no less than $5,000,000, and Borrower shall have delivered to Lender
reasonably satisfactory evidence thereof.
(b) Borrower
shall have paid or reimbursed Lender for all of its out-of-pocket costs and
expenses (including, without limitation, reasonable out-of-pocket legal fees)
related to the negotiation, execution and delivery of this Amendment and the
commencement of the Extension Term.
(c) Borrower
shall have delivered a fully executed copy of this Amendment to
Lender.
Section
3. Miscellaneous.
(a) All
of the terms and conditions of the Loan Agreement are incorporated herein by
reference with the same force and effect as if fully set forth
herein. Except as expressly amended hereby, the Loan Agreement and
each of the other Loan Documents remains in full force and effect in accordance
with its terms. For the avoidance of doubt, Borrower and Lender
acknowledge and agree that (i) subject to the satisfaction of the conditions set
forth in Section
2 hereof, the Maturity Date shall be the Payment Date in March 2011 or
such earlier date as may result from acceleration and (ii) Borrower has no
further options to extend the Maturity Date of the Loan.
(b) This
Amendment shall be governed by and construed and interpreted in accordance with
the laws of the State of New York, without regard to principles of conflicts of
law.
(c) Borrower
hereby (1) unconditionally ratifies and confirms, renews and reaffirms all
of its obligations under the Loan Agreement and each of the other Loan
Documents, (2) acknowledges and agrees that such obligations remain in full
force and effect, binding on and enforceable against it in accordance with the
terms, covenants and conditions of the Loan Agreement as amended hereby and the
other Loan Documents, in each case, without impairment, and (3) represents,
warrants and covenants that it is not in default under the Loan Agreement or any
of the other Loan Documents beyond any applicable notice and cure periods, and
there are no defenses, offsets or counterclaims against the
Indebtedness.
4
(d) Sponsor
hereby (1) unconditionally approves and consents to the execution by
Borrower of this Amendment and the modifications to the Loan Documents effected
thereby, (2) unconditionally ratifies, confirms, renews and reaffirms all of its
obligations under the Guaranty, the Environmental Indemnity and Cooperation
Agreement (the “Sponsor Documents”),
(3) acknowledges and agrees that its obligations under the Sponsor
Documents remain in full force and effect, binding on and enforceable against it
in accordance with the terms, covenants and conditions of such documents without
impairment, and (4) represents, warrants and covenants that it is not in
default under any Sponsor Document beyond any applicable notice and cure
periods, and there are no defenses, offsets or counterclaims against its
obligations under the Sponsor Documents.
(e) Whole
Loan Guarantor (1) unconditionally approves and consents to the execution
by Borrower of this Amendment and the modifications to the Loan Documents
effected thereby, (2) unconditionally ratifies, confirms, renews and reaffirms
all of its obligations under the Whole Loan Guaranty, (3) acknowledges and
agrees that its obligations under the Junior Mezz Guaranty remain in full force
and effect, binding on and enforceable against it in accordance with the terms,
covenants and conditions of such documents without impairment, and
(4) represents, warrants and covenants that it is not in default under the
Whole Loan Guaranty beyond any applicable notice and cure periods, and there are
no defenses, offsets or counterclaims against its obligations under the Whole
Loan Guaranty.
(f) Borrower
acknowledges and agrees that no oral communication or course of dealing from or
on behalf of Lender shall constitute any waiver, agreement, commitment, or
evidence of any assurance or intention of Lender with respect to the Loan, the
Loan Agreement and/or the other Loan Documents, and that any waiver, agreement,
commitment, assurance, or intention of Lender with respect to the Loan, the Loan
Agreement and/or the other Loan Documents shall be effective only if in writing
and duly executed by Lender. Borrower acknowledges and agrees that no
Default or Event of Default shall be waived by Lender, unless such waiver is in
writing and duly executed by Lender.
(g) This
Amendment may be executed by facsimile signatures and in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one and the same
instrument.
(h) Lender
hereby consents to the execution of that certain Amendment to Amended and
Restated Senior Mezzanine Loan Agreement and that certain Amendment to Junior
Mezzanine Loan Agreement, each dated as of the date hereof. The
Mezzanine Lender and Junior Mezzanine Lender may rely on such consent for
purposes of any applicable intercreditor or co-lender agreement, and the
Mezzanine Lender may rely on such consent for the purposes of any applicable
loan repurchase agreement.
5
[Signatures
appear on following page]
6
IN
WITNESS WHEREOF, for good and valuable consideration, the sufficiency of which
is hereby acknowledged and agreed, the parties hereto have executed and
delivered this Amendment as of the date first hereinabove set
forth.
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BORROWER:
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||
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The
entities listed on Schedule A to this
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signature
page
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By:
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/s/ Timothy J. O'Connor
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Name:
Timothy J. O'Connor
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Title:
President
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Solely
with respect to Section 3(d)
hereof:
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SPONSOR:
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GRAMERCY
CAPITAL CORP., a Maryland
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corporation
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By:
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/s/ Timothy J. O'Connor
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Name:
Timothy J. O'Connor
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Title:
President
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Solely
with respect to Section 3(e)
hereof:
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WHOLE LOAN GUARANTOR:
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GKK
STARS JUNIOR MEZZ 1 LLC, a Delaware
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limited
liability company
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By:
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/s/ Timothy J. O'Connor
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Name:
Timothy J. O'Connor
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Title:
President
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[Signatures continued on following
page]
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LENDER:
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GOLDMAN
SACHS MORTGAGE COMPANY, a
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New
York limited partnership
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By:
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Goldman
Sachs Real Estate Funding
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Corp.,
its general partner
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By:
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/s/ Mark Buono
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Name:
Mark Buono
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Title:
Authorized Signatory
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CITICORP
NORTH AMERICA, INC., a New York
corporation
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By:
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/s/ Michael M. Schadt
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Name:
Michael M. Schadt
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Title:
Director
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SL
GREEN REALTY CORP., a Maryland
corporation
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By:
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/s/ Andrew S. Levine
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Name:
Andrew S. Levine
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Title:
Executive Vice
President
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