Exhibit
10.1


 


EXECUTION COPY


 




 





EXCHANGE AGREEMENT


 


among


 


GKK CAPITAL LP,


 


GRAMERCY
INVESTMENT QRS CORP.,


 


TABERNA CAPITAL
MANAGEMENT, LLC,


 


TABERNA PREFERRED
FUNDING II, LTD.,


 


TABERNA PREFERRED
FUNDING V, LTD.,


 


TABERNA PREFERRED
FUNDING VII, LTD.


 


and


 


TABERNA PREFERRED
FUNDING VIII, LTD.


 


 


Dated as of October 15,
2009




 





 

















 


EXCHANGE
AGREEMENT


 


THIS
EXCHANGE AGREEMENT,
dated as of October 15, 2009
(this “Agreement”), is
entered into by and among GKK CAPITAL LP, a Delaware limited partnership (the “Company”),
GRAMERCY INVESTMENT QRS CORP., a
Delaware corporation (“QRS”), TABERNA CAPITAL MANAGEMENT, LLC, a
Delaware limited liability company (“Taberna”), TABERNA PREFERRED
FUNDING II, LTD. (“Taberna II”), TABERNA PREFERRED
FUNDING V, LTD. (“Taberna V”), TABERNA PREFERRED
FUNDING VII, LTD. (“Taberna VII”) and TABERNA PREFERRED FUNDING VIII, LTD. (“Taberna VIII”, and together with
Taberna II, Taberna V and Taberna VII,
collectively, the “Holders”).


 


RECITALS:


 


A.            Reference is made to that certain Junior Subordinated Indenture, dated as
of January 30, 2009, between the Company and The Bank of New York Mellon
Trust Company, National Association (“BNYM”), as Trustee (the “Trustee”),
as amended by that certain Supplemental Indenture, dated as of October 14,
2009 (collectively, the “Indenture”), pursuant to which the Company
issued, inter alia, the following junior subordinated notes (collectively, the “Gramercy
Notes”):


 


(i) Junior
Subordinated Note due 2035 in the original principal amount of $37,500,000
issued by the Company to Taberna II (“Note 1”).


 


(ii) Junior
Subordinated Note due 2035 in the original principal amount of $25,000,000
issued by the Company to Taberna V (“Note 4”).


 


(iii) Junior
Subordinated Note due 2035 in the original principal amount of $10,000,000
issued by the Company to Taberna VII (“Note 5”).


 


(iv) Junior
Subordinated Note due 2035 in the original principal amount of $25,000,000
issued by the Company to Taberna VIII (“Note 6”).


 


B.            QRS is the owner of certain CRE CDO
notes from GKKRE 2005-1, GKKRE 2006-1 and GKKRE 2007-1 set forth on Schedule
I hereto (the “Replacement Securities”).


 


C.            On the terms and subject to the
conditions set forth in this Agreement, the Company, QRS, Taberna and the
Holders have agreed to exchange the Gramercy Notes for the Replacement
Securities.


 


NOW,
THEREFORE, in
consideration of the mutual agreements and subject to the terms and conditions
herein set forth, the parties hereto agree as follows:


 


1.             Definitions.


 


“Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, 11 U.S.C. §§101 et seq., as
amended.


 

















 


“Benefit
Plan” means an “employee benefit plan” (as defined in ERISA) that is
subject to Title I of ERISA, a “plan” as defined in Section 4975 of the
Code or any entity whose assets include (for purposes of U.S. Department of
Labor Regulations Section 2510.3-101 or otherwise for purposes of Title I
of ERISA or Section 4975 of the Code) the assets of any such “employee
benefit plan” or “plan.”


 


“BNYM”
has the meaning set forth in the Recitals.


 


“CDO
Trustee” has the meaning set forth in Section 2(b)(i).


 


“Closing
Date” has the meaning set forth in Section 2(b).


 


“Closing
Room” has the meaning set forth in Section 2(b).


 


“Code”
means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated under it.


 


“Company”
has the meaning set forth in the introductory paragraph hereof.


 


“Company
Counsel” has the meaning set forth in Section 3(b).


 


“Equity
Interests” means with respect to any Person (a) if such Person is a
partnership, the partnership interests (general or limited) in a partnership, (b) if
such Person is a limited liability company, the membership interests in a
limited liability company and (c) if such Person is a corporation, the
shares or stock interests (both common stock and preferred stock) in a
corporation.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated under it.


 


“Exchange”
has the meaning set forth in Section 2(b).


 


“Exchange
Act” has the meaning set forth in Section 4(i).


 


“Governmental
Entities” has the meaning set forth in Section 4(n).


 


“Gramercy
Notes” has the meaning set forth in the Recitals.


 


“Holders”
has the meaning set forth in the introductory paragraph hereof.


 


“Indemnified
Party” has the meaning set forth in Section 9(a).


 


“Indemnified
Parties” shall have the correlative meaning.


 


“Indenture”
has the meaning set forth in the Recitals.


 


“Investment
Company Act” has the meaning set forth in Section 4(i).


 


“Lien”
has the meaning set forth in Section 4(n).


 


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“Material
Adverse Effect” means a material adverse effect on the condition (financial
or otherwise), earnings, business, liabilities or assets of the Company, QRS or
any of their respective subsidiaries taken as a whole.


 


“Note
1” has the meaning set forth in the Recitals.


 


“Note
4” has the meaning set forth in the Recitals.


 


“Note
5” has the meaning set forth in the Recitals.


 


“Note
6” has the meaning set forth in the Recitals.


 


“Operative
Documents” means this Agreement and the Replacement Securities.


 


“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited
liability company, trust, unincorporated association or government, or any
agency or political subdivision thereof, or any other entity of whatever
nature.


 


“QRS”
has the meaning set forth in the introductory paragraph hereof.


 


“Regulation
D” has the meaning set forth in Section 4(g).


 


“Repayment
Event” has the meaning set forth in Section 4(n).


 


“Replacement
Securities” has the meaning set forth in the Recitals.


 


“Rule 144A(d)(3)”
has the meaning set forth in Section 4(i).


 


“Securities
Act” means the Securities Act of 1933, 15 U.S.C. §§77a et seq., as amended,
and the rules and regulations promulgated under it.


 


“Taberna”
has the meaning set forth in the introductory paragraph hereof.


 


“Taberna
II” has the meaning set forth in the introductory paragraph hereof.


 


“Taberna
V” has the meaning set forth in the introductory paragraph hereof.


 


“Taberna
VII” has the meaning set forth in the introductory paragraph hereof.


 


“Taberna
VIII” has the meaning set forth in the introductory paragraph hereof.


 


“Taberna
Transferred Rights” means any and all of the Holders’ right, title, and
interest in, to and under the Gramercy Notes, together with the following:


 


(i)            the Indenture;


 


(ii)           all amounts payable to the Holders
under the Gramercy Notes or the Indenture, excluding, however, amounts payable
on account of interest for the period 


 


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commencing on the
most recent interest payment date under the Gramercy Notes and continuing
through and including the Closing Date;


 


(iii)          all claims (including “claims” as
defined in Bankruptcy Code §101(5)), suits, causes of action, and any other
right of the Holders, whether known or unknown, against the Company, QRS or any
of their respective affiliates, agents, representatives, contractors, advisors,
or any other entity that in any way is based upon, arises out of or is related
to any of the foregoing, including all claims (including contract claims, tort
claims, malpractice claims, and claims under any law governing the exchange of,
purchase and sale of, or indentures for, securities), suits, causes of action,
and any other right of the Holders against any attorney, accountant, financial
advisor, or other entity arising under or in connection with the Gramercy Notes
or the Indenture or the transactions related thereto or contemplated thereby;


 


(iv)          all cash, securities, or other
property, and all setoffs and recoupments, to be received, applied, or effected
by or for the account of the Holders under the Gramercy Notes, other than fees,
costs and expenses payable to Taberna or the Holders hereunder and all cash,
securities, interest, dividends, and other property that may be exchanged for,
or distributed or collected with respect to, any of the foregoing; and


 


(v)           all proceeds of the foregoing.


 


“Trustee”
has the meaning set forth in the Recitals.


 


2.             Exchange of
the Gramercy Notes for the Replacement Securities.


 


(a)           QRS agrees to deliver the Replacement
Securities to the Holders and has requested that the Holders accept such
Replacement Securities in exchange for the Gramercy Notes, and the Holders
hereby accept the Replacement Securities in exchange for the Gramercy Notes
upon the terms and conditions set forth herein.


 


(b)           The closing of the exchange
contemplated herein shall occur at the offices of Dechert LLP in New York, New
York (the “Closing Room”), or such other place as the parties hereto and
the Trustee shall agree, at 11:00 a.m. New York time, on October 15,
2009 or such later date as the parties may agree (such date and time of
delivery the “Closing Date”). The parties hereto hereby agree that the
exchange (the “Exchange”) will occur in accordance with the following
requirements:


 


(i)            Taberna (as collateral manager for
each of the Holders) shall have delivered issuer orders instructing each
trustee (in each such capacity, a “CDO Trustee”) under the applicable
indenture pursuant to which such CDO Trustee serves as trustee for the holder
of the Gramercy Notes to exchange the applicable Gramercy Notes for the
applicable Replacement Securities and to deliver the applicable Gramercy Notes
to the Trustee for reissuance in the name of the Company.


 


(ii)           The Gramercy Notes shall have been
delivered to the Closing Room, copies of which shall have previously been made
available for inspection, if so requested.


 


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(iii)          QRS shall have transferred the
Replacement Securities to each applicable CDO Trustee via the Depository Trust
Company to hold for the benefit of each Holder as set forth in Schedule II.


 


(iv)          The Trustee shall have obtained the
Gramercy Notes and shall, upon receipt of all necessary transfer documentation,
promptly thereafter, reissue them in the name of the Company.


 


(v)           Simultaneously with the occurrence of
the events described in subsections (iii) and (iv) hereof, (A) the
Holders of the Gramercy Notes irrevocably transfer, assign, grant and convey
the related Taberna Transferred Rights to the Company and the Company accepts
the Gramercy Notes and the Taberna Transferred Rights and (B) each Holder
shall be entitled to all of the rights, title and interest of a Holder of the
Replacement Securities, in accordance with their respective ownership
interests, under the terms of the Replacement Securities and any other
Operative Document.


 


(vi)          Taberna shall have paid to the Trustee
all of such party’s legal fees, costs and other expenses in connection with the
Exchange, and the Company shall have paid all other accrued and unpaid fees,
costs and expenses under the Indenture, if any.


 


(vii)         The Company shall have paid to the
Trustee, for application upon the Gramercy Notes and for distribution to the
applicable Holders holding such Gramercy Notes pursuant to the terms of the
Indenture, all accrued interest for the period commencing on the most recent
interest payment date under the Gramercy Notes and continuing through and
including the Closing Date.


 


(c)           Taberna and the Holders
agree that, with respect to each Replacement Security, within three (3) business
days of the receipt of the first interest payment following the Closing Date in
relation to such Replacement Security (the “Replacement Security Interest
Payment”), the Holders shall pay to the Company a pro rated portion of such
Replacement Security Interest Payment equal to (A) the Replacement
Security Interest Payment multiplied by (B) a fraction, the numerator of
which is the number of days in the period commencing on the most recent
interest payment date prior to the Closing Date with respect to such
Replacement Security and continuing through and including the Closing Date, and
the denominator of which is the number of days in the period commencing on
the most recent interest payment date prior to the Closing Date with respect to
such Replacement Security until the next interest payment date.


 


3.             Conditions
Precedent.  The obligations of
the parties under this Agreement are subject to the following conditions
precedent:


 


(a)           The representations and warranties
contained herein shall be accurate as of the date of delivery of the
Replacement Securities.


 


(b)           Clifford Chance US LLP, counsel for
the Company and QRS (the “Company Counsel”), shall have delivered an
opinion, dated the Closing Date, addressed to each Holder, Taberna and their
successors and assigns and to the Trustee, in substantially the form set out in
Exhibit A hereto.  In
rendering its opinion, the Company Counsel may rely as to factual matters 


 


5

















 


upon certificates or other documents furnished by
officers, directors and trustees of QRS and the Company and by government
officials and by and upon such other documents as such counsel may, in its
reasonable opinion, deem appropriate as a basis for the Company Counsel’s
opinion; provided, however, that copies of any such certificates or documents
are delivered to the Holders.  The
Company Counsel may specify the jurisdictions in which it is admitted to
practice and that it is not admitted to practice in any other jurisdiction and
is not an expert in the law of any other jurisdiction.  Such Company Counsel opinion shall not state
that it is to be governed or qualified by, or that it is otherwise subject to,
any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).


 


(c)           Prior to the Closing Date, each party
hereto shall furnish such further information, certificates and documents to
each other party as such other party or its counsel may reasonably request.


 


If any
of the conditions specified in this Section 3 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions,
certificates and documents mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Holders, Taberna or
their counsel, this Agreement and any obligations of Taberna and the Holders
hereunder, whether as holders of the Gramercy Notes or as prospective Holders
of the Replacement Securities, may be canceled at, or at any time prior to, the
Closing Date by Taberna or the Holders. Notice of such cancellation shall be
given to the Company and QRS in writing or by telephone and confirmed in
writing, or by e-mail or facsimile.


 


Each
certificate signed by any officer of the Company or QRS and delivered to the
Holders or the Holders’ counsel in connection with the Exchange and the
transactions contemplated hereby and thereby shall be deemed to be a
representation and warranty of the Company or QRS and not by such officer in
any individual capacity.


 


4.             Representations
and Warranties of the Company and QRS. Each of the Company and QRS,
for itself (unless otherwise indicated below), represents and warrants to, and
agrees with Taberna and the Holders as follows:


 


(a)           It (i) is duly organized and
validly existing under the laws of its jurisdiction of organization or
incorporation, (ii) is in good standing under such laws and (iii) has
full power and authority to execute, deliver and perform its obligations under
this Agreement and the other Operative Documents.


 


(b)           It is an “accredited investor” as
defined in Rule 501 under the Securities Act. Without characterizing the
Gramercy Notes or any of the Taberna Transferred Rights as a “security” within
the meaning of applicable securities laws, it is not acquiring the Gramercy
Notes or the Taberna Transferred Rights with a view towards the sale or
distribution thereof in violation of the Securities Act.


 


(c)           Neither the Replacement Securities
nor the Exchange is or may be void or voidable as an actual or constructive
fraudulent transfer or as a preferential transfer.


 


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(d)           It (i) is a sophisticated entity
with respect to the Exchange, (ii) has such knowledge and experience, and
has made investments of a similar nature, so as to be aware of the risks and
uncertainties inherent in the Exchange and (iii) has independently and
without reliance upon Taberna, any Holder or the Trustee or any of their
affiliates, and based on such information as it has deemed appropriate, made
its own analysis and decision to enter into this Agreement, except that it has
relied upon Taberna’s and the Holders’ express representations, warranties,
covenants and agreements in this Agreement. 
It acknowledges that none of Taberna, any Holder or the Trustee or any
of their affiliates has given it any investment advice, credit information or
opinion on whether the Exchange is prudent.


 


(e)           It has not engaged any broker, finder
or other entity acting under the authority of it or any of its affiliates that
is entitled to any broker’s commission or other fee in connection with the
transaction for which Taberna, any Holder, Trustee or any of their affiliates
could be responsible.


 


(f)            No interest in the Taberna
Transferred Rights is being acquired by or on behalf of an entity that is, or
at any time while the Taberna Transferred Rights are held thereby will be, one
or more Benefit Plans.


 


(g)           Neither it nor any of its “Affiliates”
(as defined in Rule 501 (b) of Regulation D (“Regulation D”)
under the Securities Act (as defined below)), nor any person acting on its or
their behalf, has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of any of the Replacement Securities under the
Securities Act; provided that it does not make any representations as to any
action taken by an Indemnified Party.


 


(h)           Neither it nor any of its Affiliates,
nor any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of any of the Replacement Securities
provided, that it does not make any representations as to any action taken by
an Indemnified Party.


 


(i)            The Replacement Securities (a) are
not and have not been listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or quoted on a U.S. automated inter-dealer quotation system and (b) are
not of an open-end investment company, unit investment trust or face-amount
certificate company that are, or are required to be, registered under Section 8
of the Investment Company Act of 1940, as amended (the “Investment Company
Act”), and the Replacement Securities otherwise satisfy the eligibility
requirements of Rule 144A(d)(3) promulgated pursuant to the
Securities Act (“Rule 144A(d)(3)”).


 


(j)            Neither it nor any of its
Affiliates, nor any person acting on its or their behalf, has engaged, or will
engage, in any “directed selling efforts” within the meaning of Regulation S
under the Securities Act with respect to the Replacement Securities.


 


(k)           It is not, and immediately following
consummation of the transactions contemplated hereby, will not be, an “investment
company” or an entity “controlled” by an 


 


7

















 


“investment company,” in each case within the meaning
of Section 3(a) of the Investment Company Act.


 


(l)            This Agreement and the consummation
of the transactions contemplated herein have been duly authorized by it and, on
the Closing Date, will have been duly executed and delivered by it, and,
assuming due authorization, execution and delivery by Taberna, the Holders
and/or the Trustee, as applicable, will be a legal, valid and binding
obligations of it enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally and to general principles of equity.


 


(m)          QRS is the owner of the Replacement
Securities free and clear of any pledge, mortgage, hypothecation, lien, charge,
encumbrance or any security interest therein, or adverse claims of title (in
accordance with Section 9-330(d) of the UCC); QRS has not assigned or
otherwise transferred the Replacement Securities; and QRS has the power and
authority to transfer the Replacement Securities.


 


(n)           Neither the exchange of the
Replacement Securities for the Gramercy Notes, nor the execution and delivery
of and compliance with the Operative Documents by the Company or QRS, nor the
consummation of the transactions contemplated herein or therein, (i) will
conflict with or constitute a violation or breach of (x) the charter or
bylaws or similar organizational documents of it or any of its subsidiaries or (y) any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, governmental authority, agency or instrumentality or court,
domestic or foreign, having jurisdiction over it or any of its subsidiaries or
their respective properties or assets (collectively, the “Governmental
Entities”), (ii) will conflict with or constitute a violation or
breach of, or a default or Repayment Event (as defined below) under, or result
in the creation or imposition of any pledge, security interest, claim, lien or
other encumbrance of any kind (each, a “Lien”) upon any property or
assets of it or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
(A) it or any subsidiary is a party or by which it or any of them may be
bound, or (B) to which any of the property or assets of any of them is
subject, or any judgment, order or decree of any court, Governmental Entity or
arbitrator, except, in the case of clause (i)(y) or this clause (ii), for
such conflicts, breaches, violations, defaults, Repayment Events (as defined
below) or Liens which (X) would not, singly or in the aggregate, adversely
affect the consummation of the transactions contemplated by the Operative
Documents and (Y) would not, singly or in the aggregate, have a Material
Adverse Effect or (iii) will require the consent, approval, authorization
or order of any court or Governmental Entity. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by it or any of its subsidiaries prior
to its scheduled maturity. Notwithstanding the foregoing, solely for purposes
of subclause (ii) above, no conflict, breach, violation, default,
Repayment Event, Lien or Material Adverse Effect will be deemed to have
occurred unless (a) acknowledged by it or (b) adjudicated by a court
of competent jurisdiction.


 


(o)           All of the information provided to
Taberna and the Holders in connection with the Exchange is true, complete and
accurate in all material respects.


 


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(p)           There is no action, suit or
proceeding before or by any Governmental Entity, arbitrator or court, domestic
or foreign, now pending or, to the knowledge of it after due inquiry,
threatened against or affecting it or any of its subsidiaries, except for such
actions, suits or proceedings that, if adversely determined, would not, singly
or in the aggregate, adversely affect the consummation of the transactions
contemplated by the Operative Documents or have a Material Adverse Effect; and
the aggregate of all pending legal or governmental proceedings to which it or
any of its subsidiaries is a party or of which any of their respective
properties or assets is subject, including ordinary routine litigation
incidental to the business, are not expected to result in a Material Adverse
Effect.


 


(q)           No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of,
any Governmental Entity, other than those that have been made or obtained, is
necessary or required for the performance by it of its obligations under the
Operative Documents, as applicable, or the consummation by it of the
transactions contemplated by the Operative Documents.


 


Except
as expressly stated in the Operative Documents or any of the other documents
delivered by the company in connection herewith, neither the Company nor QRS
makes any representations or warranties, express or implied, with respect to
the Exchange, the Taberna Transferred Rights, the Gramercy Notes, the Indenture
or any other matter.


 


5.             Representations
and Warranties of the Holders. 
Each of the Holders, for itself, represents and warrants to, and agrees
with, the Company and QRS as follows:


 


(a)           It is a company duly formed, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized with all requisite power and authority to execute, deliver and
perform under Operative Documents to which it is a party, to make the
representations and warranties specified herein and therein and to consummate
the transactions contemplated in the Operative Documents.


 


(b)           This Agreement and the consummation
of the transactions contemplated herein has been duly authorized by it and, on
the Closing Date, will have been duly executed and delivered by it and,
assuming due authorization, execution and delivery by the Company, QRS, Taberna
and the Trustee of the Operative Documents to which each is a party, will be a
legal, valid and binding obligation of such Holder, enforceable against such
Holder in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and to
general principles of equity.


 


(c)           No filing with, or authorization,
approval, consent, license, order registration, qualification or decree of, any
Governmental Entity or any other Person, other than those that have been made
or obtained, is necessary or required for the performance by such Holder of its
obligations under this Agreement or to consummate the transactions contemplated
herein.


 


(d)           Neither
the exchange of the Replacement Securities for the Gramercy Notes, nor the
execution and delivery of and compliance with this Agreement by Taberna or the
Holders, nor the consummation of the transactions contemplated herein or
therein, conflict with, or will result in a violation or breach of or
constitute a default (or an event which, with or without notice


 


9
















 


or
lapse of time or both, would constitute a default) under, the terms, conditions
or provisions of any contract or other instrument of any kind to which Taberna
or the Holders is now a party or by which Taberna or the Holders may be bound
or affected.


 


(e)           It is a “Qualified Holder” as such
term is defined in Section 2(a)(51) of the Investment Company Act.


 


(f)            Taberna II is the legal and
beneficial owner of Note 1 and the related Taberna Transferred Rights and shall
deliver Note 1 free and clear of any Lien created by such Holder.


 


(g)           Taberna V is the legal and beneficial
owner of Note 4 and the related Taberna Transferred Rights and shall deliver
Note 4 free and clear of any Lien created by such Holder.


 


(h)           Taberna VII is the legal and
beneficial owner of Note 5 and the related Taberna Transferred Rights and shall
deliver Note 5 free and clear of any Lien created by such Holder.


 


(i)            Taberna VIII is the legal and
beneficial owner of Note 6 and the related Taberna Transferred Rights and shall
deliver Note 6 free and clear of any Lien created by such Holder.


 


(j)            There is no action, suit or
proceeding before or by any Governmental Entity, arbitrator or court, domestic
or foreign, now pending or, to its knowledge, threatened against or affecting
it, except for such actions, suits or proceedings that, if adversely
determined, would not, singly or in the aggregate, adversely affect the
consummation of the transactions contemplated by the Operative Documents.


 


(k)           The outstanding principal amount of
its respective Gramercy Note is the face amount as set forth in such Gramercy
Note.


 


(l)            It is aware that the Replacement
Securities have not been and will not be registered under the Securities Act
and may not be offered or sold within the United States or to “U.S. persons”
(as defined in Regulation S under the Securities Act) except in accordance with
Rule 903 of Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act.


 


(m)          It is an “accredited investor,” as
such term is defined in Rule 501 (a) of Regulation D under the
Securities Act and has such knowledge and experience in financial and business
matters as to be capable of evaluating the risks and merits of exchanging the
Gramercy Notes for the Replacement Securities. Without characterizing the
Gramercy Notes or the Taberna Transferred Rights as a “security” within the
meaning of applicable securities laws, it has not made any offers to sell, or
solicitations of any offers to buy, all or any portion of the Gramercy Notes or
Taberna Transferred Rights in violation of any applicable securities laws.


 


(n)           Neither it nor any of its Affiliates,
nor any person acting on its or its Affiliate’s behalf has engaged, or will
engage, any form of “general solicitation or general advertising” (within the
meaning of Regulation D under the Securities Act) in connection with any offer
or sale of the Replacement Securities.


 


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(o)           It understands and acknowledges that (i) no
public market exists for any of the Replacement Securities and that it is
unlikely that a public market will ever exist for the Replacement Securities, (ii) such
Holder is purchasing the Replacement Securities for its own account, for
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act or other applicable
securities laws, subject to any requirement of law that the disposition of its
property be at all times within its control and subject to its ability to
resell such Replacement Securities pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption therefrom or in
a transaction not subject thereto, and (iii) it has had the opportunity to
ask questions of, and receive answers and request additional information from,
the Company and is aware that it may be required to bear the economic risk of
an investment in the Replacement Securities.


 


(p)           It has not engaged any broker, finder
or other entity acting under its authority that is entitled to any broker’s
commission or other fee in connection with this Agreement and the consummation
of transactions contemplated in this Agreement for which the Company or QRS
could be responsible.


 


(q)           It (i) is a sophisticated entity
with respect to the Exchange, (ii) has such knowledge and experience, and
has made investments of a similar nature, so as to be aware of the risks and
uncertainties inherent in the Exchange and (iii) has independently and
without reliance upon the Company or QRS or any of their respective affiliates,
and based on such information as it has deemed appropriate, made its own
analysis and decision to enter into this Agreement, except that it has relied
upon the Company’s and QRS’s express representations, warranties, covenants and
agreements in the Operative Documents and the other documents delivered by the
Company and QRS in connection therewith.


 


Except
as expressly stated in this Agreement, the Holders make no representations or
warranties, express or implied, with respect to the Exchange, the Taberna
Transferred Rights, the Gramercy Notes, the Indenture, or any other matter.


 


6.             Covenants
and Agreements of the Company and QRS. Each of the Company and QRS,
for itself, agrees with Taberna and the Holders as follows:


 


(a)           It has taken all action reasonably
necessary or appropriate to cause its representations and warranties contained
in Section 4 hereof to be true as of the Closing Date and after giving
effect to the Exchange.


 


(b)           It will not, and will not permit any
of its Affiliates or any person acting on its or their behalf to, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of any of the
Replacement Securities under the Securities Act.


 


(c)           It will not, and will not permit any
of its Affiliates or any person acting on its or their behalf to, engage in (i) any
form of “general solicitation or general advertising” (within the meaning of
Regulation D), or (ii) any “directed selling efforts” within the meaning
of Regulation S under the Securities Act, in connection with any offer or sale
of any of the Replacement Securities.


 


11

















 


(d)           So long as any of the Replacement
Securities are outstanding, (i) the Replacement Securities shall not be
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) it
shall not be an open-end investment company, unit investment trust or
face-amount certificate company that is, or is required to be, registered under
Section 8 of the Investment Company Act, and, the Replacement Securities
shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3).


 


(e)           It will, during any period in which
it or its general partner is not subject to and in compliance with Section 13
or 15(d) of the Exchange Act, or it or its general partner is not exempt
from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under
the Exchange Act, provide to each Holder of the Replacement Securities, upon
the request of such Holder, any information required to be provided by Rule 144A(d)(4) under
the Securities Act. If it or its general partner is required to register under
the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall
be sufficient information as required above. This covenant is intended to be
for the benefit of the Holders.


 


(f)            It will not identify any of the
Indemnified Parties (as defined below) in a press release or any other public
statement without the prior written consent of such Indemnified Party.


 


7.             No Right to Future Exchanges.  The
Company and QRS each acknowledge and agree that Taberna has no obligation to
conduct a future exchange transaction with the Company or QRS with respect to (i) the
Junior Subordinated Note due 2035 issued by the Company under the Indenture and
held by Taberna Preferred Funding III, Ltd. or (ii) the Junior
Subordinated Note due 2035 issued by the Company under the Indenture and held
by Taberna Preferred Funding IV., Ltd.


 


8.             Payment of Expenses. 
In addition to the obligations agreed to by the Company and Taberna
under Section 2(b)(vi) herein, each of the parties hereto agree to
pay all costs and expenses incident to the performance of their respective
obligations under this Agreement, including, without limitation, the fees and
expenses of their respective counsel, accountants and any other experts or
advisors retained by them, whether or not the transactions contemplated herein
are consummated or this Agreement is terminated.  Notwithstanding the foregoing, the Company
and QRS agree to pay all costs and expenses incident to (i) the
authorization, issuance, sale and delivery of the Replacement Securities and
any taxes payable in connection therewith and (ii) the fees and all
reasonable expenses of each CDO Trustee relating to the Exchange, including the
fees and disbursements of counsel for each CDO Trustee.


 


9.             Indemnification.  (a) The
Company and QRS, jointly and severally, agree to indemnify and hold harmless
BNYM, the Holders, Taberna, Taberna Securities, LLC, and their respective
affiliates (collectively, the “Indemnified Parties”), each person, if
any, who controls any of the Indemnified Parties within the meaning of the
Securities Act or the Exchange Act, and the Indemnified Parties’ respective
directors, officers, employees and agents against any and all losses, claims,
damages or liabilities, joint or several, to which the Indemnified Parties may
become subject, under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in any information or documents provided
by or on 


 


12

















 


behalf of it, (ii) any omission or alleged
omission to state a material fact required to be stated or necessary to make
the statements contained in any information provided by it, in light of the
circumstances under which they were made, not misleading, or (iii) the
breach or alleged breach of any representation, warranty, or agreement of it
contained herein, or (iv) the execution and delivery by it of the
Operative Documents and actions taken by it to consummate the transactions
contemplated herein and therein, and agrees to reimburse each such Indemnified
Party, as incurred, for any legal or other expenses reasonably incurred by the
Indemnified Parties in connection with investigating or defending any such
loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability that it may otherwise have.  For avoidance of doubt, the Company and QRS
shall not be obligated to indemnify or hold harmless any of the Indemnified
Parties for any losses, claims, damages or liabilities (or actions in respect
thereof) arising out of or based on (i) the execution and delivery of this
Agreement by any of the Indemnified Parties and actions taken by them to
consummate the transactions contemplated herein, or (ii) the breach or
alleged breach of any representation, warranty, or agreement contained herein
made by any of the Indemnified Parties.


 


(b)           Promptly after receipt by an
Indemnified Party under this Section 9 of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, promptly notify the
indemnifying party in writing of the commencement thereof; but the failure so
to notify the indemnifying party (i) will not relieve the indemnifying
party from liability under paragraph (a) above unless and to the extent
that such failure results in the forfeiture by the indemnifying party of
material rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any Indemnified Party other than the
indemnification obligation provided in paragraph (a) above. The
Indemnified Parties shall be entitled to appoint one counsel to represent the
Indemnified Parties in any action for which indemnification is sought. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, that counsel to the indemnifying party shall not (except
with the consent of the Indemnified Party) also be counsel to the Indemnified
Party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, unless an
Indemnified Party elects to engage separate counsel because such Indemnified
Party believes that its interests are not aligned with the interests of another
Indemnified Party or that a conflict of interest might result. An indemnifying
party will not, without the prior written consent of the Indemnified Parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Parties
are actual or potential parties to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Party from all liability arising out of such claim, action,
suit or proceeding.


 


10.          Representations and Indemnities to
Survive.  The respective agreements, representations,
warranties, indemnities and other statements of the Company and QRS or its
officers set forth in or made pursuant to this Agreement will remain in full
force and effect and will survive the Exchange. The provisions of Sections 8
and 9 shall survive the termination or cancellation of this Agreement.


 


13

















 


11.          Amendments. 
This Agreement may not be modified, amended, altered or supplemented,
except upon the execution and delivery of a written agreement by each of the
parties hereto.


 


12.          Notices. 
All communications hereunder will be in writing and effective only on
receipt, and will be mailed, delivered by hand or courier or sent by facsimile
and confirmed or by any other reasonable means of communication, including by
electronic mail, to the relevant party at its address specified below.


 


	
  To Taberna

  	
   

  
	
  or the Holders:

  	
  Taberna Capital
  Management, LLC

  
	
   

  	
  450 Park Avenue, 11th Floor

  
	
   

  	
  New York, New York
  10022

  
	
   

  	
  Attention: Raphael
  Licht

  
	
   

  	
  Facsimile: (215)
  243-9039

  
	
   

  	
  Email: rlicht@raitft.com

  
	
   

  	
   

  
	
  With a copy to:

  	
  Dechert LLP

  
	
   

  	
  Cira Centre

  
	
   

  	
  2929 Arch Street

  
	
   

  	
  Philadelphia,
  Pennsylvania 19014

  
	
   

  	
  Attention: Ralph R.
  Mazzeo, Esq.

  
	
   

  	
  Facsimile: (215)
  655-2417

  
	
   

  	
  Email:
  ralph.mazzeo@dechert.com

  
	
   

  	
   

  
	
  To QRS

  	
   

  
	
  or the Company:

  	
  GKK Capital LP or Gramercy
  Investment QRS Corp., as applicable

  
	
   

  	
  420 Lexington Avenue

  
	
   

  	
  New York, New York
  10170

  
	
   

  	
  Attn: Edward Matey

  
	
   

  	
  Facsimile: (212)
  297-1090

  
	
   

  	
  Email:
  edward.matey@gkk.com

  
	
   

  	
   

  
	
  With a copy to:

  	
  Clifford Chance US LLP

  
	
   

  	
  31 West 52nd Street

  
	
   

  	
  New York, New York
  10019

  
	
   

  	
  Attention: Larry
  Medvinsky, Esq.

  
	
   

  	
  Facsimile: (212)
  878-8375

  
	
   

  	
  Email:
  larry.medvinsky@cliffordchance.com

  



 


13.          Successors and Assigns. 
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.  Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
parties hereto and the affiliates, directors, officers, employees, agents and
controlling persons referred to in Section 9 hereof and their successors,
assigns, heirs and legal representatives, any right or obligation
hereunder.  None of the rights or
obligations of the 


 


14

















 


Company or QRS under this Agreement may be assigned,
whether by operation of law or otherwise, without Taberna’s prior written
consent.  The rights and obligations of
the Holders and Taberna under this Agreement may be assigned by the Holders or
Taberna without the Company’s or QRS’s consent; provided that the assignee
assumes the obligations of any such Holders under this Agreement.


 


14.          Applicable Law. 
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES
OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).


 


15.          Submission to Jurisdiction. 
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT IN OR REMOVED
TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH
CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.


 


16.          Counterparts and Facsimile. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument. This Agreement may be executed by any
one or more of the parties hereto by facsimile.


 


17.          Entire Agreement.              This
Agreement constitutes the entire agreement and understanding of the parties
with respect to the matters and transactions contemplated by this Agreement and
supersedes any prior agreement or understanding of the parties hereto.


 


[Signature
Page Follows]


 


15

















 


IN
WITNESS WHEREOF,
this Agreement has been entered into as of the date first written above.


 


	
   

  	
  TABERNA PREFERRED
  FUNDING II, LTD.

  
	
   

  	
  TABERNA PREFERRED
  FUNDING V, LTD.

  
	
   

  	
  TABERNA PREFERRED
  FUNDING VII, LTD.

  
	
   

  	
  TABERNA PREFERRED
  FUNDING VIII, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Taberna Capital
  Management, LLC, 

  as Collateral Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael A. Fralin

  
	
   

  	
   

  	
   

  	
  Name: Michael A. Fralin

  
	
   

  	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TABERNA CAPITAL
  MANAGEMENT, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Fralin

  
	
   

  	
   

  	
  Name: Michael A. Fralin

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GRAMERCY INVESTMENT QRS
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Roger M. Cozzi

  
	
   

  	
   

  	
  Name: Roger M. Cozzi

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GKK CAPITAL LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GRAMERCY CAPITAL CORP.,
  

  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Roger M. Cozzi

  
	
   

  	
   

  	
   

  	
  Name: Roger M. Cozzi

  
	
   

  	
   

  	
   

  	
  Title: Chief Executive
  Officer