exv10w2



 





Exhibit 10.2




Stockholder Voting Agreement




     THIS STOCKHOLDER VOTING AGREEMENT (this “Agreement”) is entered into as of November 7,
2007 by and between SSF III Gemini, LP (the “Stockholder”), a stockholder of Gramercy
Capital Corp., a Maryland corporation (“Gramercy”), and American Financial Realty Trust, a
Maryland real estate investment trust (“AFR”).



     WHEREAS, as of the date hereof, the Stockholder owns of record and beneficially 3,809,524
shares of common stock, $0.001 par value, of Gramercy (such shares being referred to herein
collectively as the “Shares” and, for the avoidance of doubt, all references herein to the
Stockholder’s Shares shall include not only all the Shares stated above, but also all additional
shares of common stock of AFR that are owned directly or indirectly by the Stockholder, subject in
all cases to Transfers of such Shares that have been made to Permitted Transferees to the extent
permitted by and in accordance with Section 2(a));



     WHEREAS, concurrently with the execution of this Agreement, Gramercy, GKK Capital LP, a
Delaware limited partnership (“Parent OP”), GKK Stars Acquisition LLC, a Delaware limited
liability company and wholly-owned subsidiary of Parent OP (“Acquisition Sub”), GKK Stars
Acquisition Corp., a Maryland corporation and wholly-owned subsidiary of Acquisition Sub
(“Merger Sub”), GKK Stars Acquisition LP, a Delaware limited partnership (“Merger Sub
OP” and, together with Parent, Parent OP, Acquisition Sub and Merger Sub, the “Purchaser
Parties”), AFR, and First States Group, L.P., a Delaware limited partnership (the
“Operating Partnership”), are entering into an Agreement and Plan of Merger, dated as of
the date hereof (in the form attached as Exhibit A hereto, the “Merger Agreement”),
pursuant to which Merger Sub will be merged with and into AFR (the “Merger”) and Merger Sub
OP with be merged with and into the Operating Partnership;



     WHEREAS, this Agreement is a “Voting Agreement” referenced in the Merger Agreement; and



     WHEREAS, as a condition to the willingness of AFR to enter into the Merger Agreement, AFR has
required that the Stockholder enter into, and in order to induce AFR to enter into the Merger
Agreement, the Stockholder is willing to enter into, this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:



     1. Voting of Shares. Unless otherwise requested by AFR, the Stockholder covenants and
agrees that, until the termination of this Agreement in accordance with the terms hereof, at the
Parent Shareholders’ Meeting or any other meeting of the stockholders of Gramercy,
however called, and in any action by written consent of the stockholders of Gramercy with
respect to any of the following, the Stockholder will, if a meeting is held, appear at the meeting,
in person or by proxy, or otherwise cause its Shares to be counted as present thereat for purposes



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of establishing a quorum and will at a meeting, if one is held or otherwise if consents are
solicited, vote or consent to, or cause to be voted or consented to, all of the Shares in favor of
the issuance of Gramercy common stock in the Mergers, and all actions and transactions contemplated
by the Merger Agreement or in furtherance thereof, including, upon the request of AFR, any
adjournment or postponement of the Parent Shareholders’ Meeting. The Stockholder further agrees
until the termination of this Agreement in accordance with its terms, not to commit or agree to
take any action inconsistent with the foregoing prior to such termination. For the avoidance of
doubt, subject to Section 2 hereof, the Stockholder shall retain at all times the right to vote the
Stockholder’s Shares in the Stockholder’s sole discretion and without any other limitations on
those matters other than those set forth in this Section 1 that are at any time or from time to
time presented for consideration to Gramercy’s stockholders generally.



     2. Transfer of Shares.



          (a) The Stockholder covenants and agrees that, until the earlier of June 6, 2008 and
termination of this Agreement in accordance with its terms, without the written consent of AFR, the
Stockholder will not directly or indirectly (i) subject to Section 2(b), sell, assign, transfer
(including by merger or by operation of law), encumber, grant a participation in, gift-over, assign
or otherwise dispose of, whether by liquidation, dissolution, dividend, distribution or otherwise
(“Transfer”) any Shares or the Beneficial Ownership (as hereinafter defined) thereof, (ii)
deposit any Shares into a voting trust or enter into a voting agreement or arrangement with respect
to any Shares or the Beneficial Ownership thereof or grant or agree to grant any proxy or power of
attorney with respect thereto that is inconsistent with this Agreement or (iii) enter into any
contract, option or other arrangement or undertaking with respect to the direct or indirect
Transfer of any Shares or the Beneficial Ownership thereof, except, in each case under clause (i)
and clause (iii), to a Permitted Transferee. For purposes of this Agreement, “Beneficial
Ownership” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act
(disregarding the reference to “within 60 days” in Rule 13d-3(d)(1)(i)). As used herein, a
“Permitted Transferee” shall mean a Person that before such action proposed under Section
2(a)(i) or Section 2(a)(iii) occurs, is (x) Gramercy, or (y) any Affiliate of the Stockholder who,
upon such Transfer, becomes a party to this Agreement and agrees in writing, in form and substance
to the reasonable satisfaction of AFR, to be bound as a Stockholder under this Agreement and has
not violated this Agreement. In connection with any Transfer of Shares to a Permitted Transferee,
the transferring Stockholder may transfer its rights and obligations under this Agreement to the
Permitted Transferee, but the transferring Stockholder shall remain liable for all breaches of such
obligations whenever occurring. Notwithstanding anything herein to the contrary, nothing in this
Agreement shall permit any Transfer of Shares, Beneficial Ownership, rights or obligations or any
other action that would otherwise be permitted by this Section 2(a) if such Transfer or other
action would create any material impediment or delay to the performance or consummation of the
Merger Agreement or this Agreement, including, without limitation, triggering the applicability of
any “fair price”, “moratorium”, “control share acquisition” or other similar anti-takeover statute
or regulation to the Merger Agreement, this Agreement or any of the transactions contemplated by
the Merger Agreement or this Agreement.




          (b) Notwithstanding anything in this Agreement to the contrary, the Stockholder may enter into
any contract, option, swap or other agreement or arrangement, grant a participation in, and pledge
and encumber the Shares thereunder in connection with any bona




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fide lending, hedging or other
financing or derivative transaction or arrangement (a “Permitted Transaction”);
provided, that the Stockholder retains the right to vote or consent to, or cause to be
voted or consented to, all Shares as provided in Section 1 during the term of such Permitted
Transaction. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to prohibit
the Stockholder or any Permitted Transferee from pledging their direct or indirect interests in any
Shares as security for a loan contracted by the Stockholder, such Permitted Transferee or any
Affiliate thereof, or to prohibit any Pledgee thereof from exercising its rights under or in
connection with such pledge.




     3. Reasonable Efforts to Cooperate.



          (a) The Stockholder will, upon receipt of reasonable advance notice by AFR, without further
consideration, provide as promptly as reasonably practicable any customary information reasonably
requested by AFR that is necessary for any regulatory application or filing made or approval sought
in connection with the transactions contemplated by this Agreement or the Merger Agreement
(including filings with the SEC or any other Governmental Entity).




          (b) The Stockholder hereby consents to the publication and disclosure in the Proxy Statement,
statements of beneficial ownership filed by Gramercy and its Affiliates (and any other documents or
communications provided by AFR to any Governmental Entity or to security holders of AFR or
Gramercy) of the Stockholder’s identity and Beneficial Ownership of the Shares and the nature of
the Stockholder’s commitments, arrangements and understandings under and relating to this
Agreement; provided, however, that the Stockholder shall have the opportunity to
review such disclosure prior to its publication in the Proxy Statement or such other document or
communication, and no information relating to the Stockholder shall be published in the Proxy
Statement, such other document or communication without the approval of the Stockholder (such
approval not to be unreasonably withheld or delayed).




          (c) The Stockholder agrees, while this Agreement is in effect, to notify AFR promptly in
writing of the number of additional Shares, any options to purchase Shares or other securities of
Gramercy acquired by the Stockholder, if any, after the date hereof (and, for the avoidance of
doubt, the Stockholder agrees that any such additional shares shall be, for all purposes of this
Agreement, “Shares”).




          (d) While this Agreement is in effect, the Stockholder shall use commercially reasonable
efforts to take, or cause to be taken, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things reasonably necessary to carry out the intent and
purposes of this Agreement.




4. Representations and Warranties.




     (a) The Stockholder hereby represents and warrants to AFR as of the date hereof as follows:



          (1) Ownership of Shares. The Stockholder (i) is the sole owner of record and has
Beneficial Ownership of all of the Shares, free and clear of any and all liens, claims, security
interests, options, rights or other encumbrances whatsoever on title or transfer (other than those




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imposed under the federal securities laws, this Agreement, the Stockholders Agreement, any Pledge
or any Permitted Transaction), (ii) has sole voting power with respect to all of such Shares and
has not entered into any voting agreement or voting trust with respect to any such Shares and has
not granted a proxy, a consent or power of attorney with respect to such Shares and, so long as
this Agreement is in effect, will not grant any such proxies, consents and powers of attorney with
respect to such Shares that would violate this Agreement and (iii) does not own of record or
beneficially, any shares of capital stock of Gramercy or right to acquire such shares other than
the Shares.




          (2) Due Organization. The Stockholder is an entity duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its organization.




          (3) Power, Binding Agreement. The Stockholder has the requisite power and authority
to enter into and perform all of its obligations under this Agreement and no further proceedings or
actions on the part of the Stockholder are necessary to authorize the execution, delivery or
performance by the Stockholder of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by the Stockholder and constitutes a valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except that enforceability may be subject to
the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting or relating to the enforcement of creditors rights generally and to general
principles of equity.




          (4) No Conflicts. The execution and delivery of this Agreement by the Stockholder
does not, and the consummation of the transactions contemplated hereby by the Stockholder will not,
result in any breach or violation of, require any consent under, be in conflict with or constitute
a default (whether with notice of lapse of time or both) under any mortgage, bond, indenture,
agreement, instrument, obligation or Law to which the Stockholder is a party or by which the
Stockholder or its Shares are bound, except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not in any material respect impair, delay or
adversely affect the Stockholder’s ability to perform its obligations under this Agreement.




          (5) Consents. No consent of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the compliance by the Stockholder with the provisions
of this Agreement, except for (i) filings with the SEC of such reports under the Exchange Act as
may be required in connection with this Agreement, and (ii) such other items and consents the
failure of which to be obtained or made, individually or in the aggregate, would not in any
material respect impair, delay or adversely affect the Stockholder’s ability to perform its
obligations under this Agreement.




     (b) AFR hereby represents and warrants to the Stockholder that it does not, and will not
during the term of this Agreement, Beneficially Own any shares of common stock of Gramercy.



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     5. Termination. This Agreement shall terminate upon the first to occur of (a) the
Effective Time, (b) such time as the Merger Agreement may be terminated and (c) the execution by
Gramercy of any amendment, supplement, modification or written or other material waiver to the
Merger Agreement that has not previously been approved in writing by the Stockholder . Any such
termination shall be without prejudice to liabilities arising hereunder before such termination.



     6. Specific Performance. The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.



     7. [RESERVED]



     8. Miscellaneous.



     (a) Definitions. For purposes of this Agreement, the following terms have the
respective meanings set forth below:



          “Affiliate” of any person means a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the first-mentioned
person.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.




          “Governmental Entity” shall mean any municipal, local, state or federal government or
governmental authority or by any United States or state court of competent jurisdiction.




          “Laws” shall mean any order, writ, injunction, decree, statute, ordinance, requirement, rule
or regulation applicable to the Stockholder or any of its subsidiaries or any of their respective
properties or assets.




          “Parent Shareholders’ Meeting” shall mean a meeting of holders of Gramercy common shares for
the purpose of seeking the approval of the issuance of Gramercy common stock in connection with the
Merger Agreement by the holders of a majority of votes entitled to be cast at a meeting of
Gramercy’s stockholders duly called and held for such purpose.




          “Person” means an individual, corporation, limited liability company, partnership, joint
venture, association, trust, unincorporated organization, other entity or group (as defined in
Section 13(d) of the Exchange Act).




          “Pledgee” shall mean any lender who has made a loan to the Stockholder or any Permitted
Transferee or any Affiliate thereof and to whom either the Stockholder, any Permitted Transferee or
Affiliate thereof has pledged their direct or indirect interests in any Common Stock as security
for such loan.




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          “Proxy Statement” shall mean a joint proxy statement in definitive form relating to the
meeting of AFR’s stockholders and the meeting of Gramercy’s stockholders, in each case, to be held
in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement.




          “SEC” means the United States Securities and Exchange Commission.




          “Stockholders Agreement” means that certain Stockholders Agreement, dated as of November 1,
2007, by and among Gramercy, the Stockholder and SL Green Operating Partnership, L.P.




          (b) Entire Agreement. This Agreement constitutes the entire agreement and supersedes
any and all other prior agreements and undertakings, both written and oral, among the parties
hereto, or any of them, with respect to the subject matter hereof and is not intended to confer
upon any Person, other than AFR and the Stockholder, any rights or remedies hereunder. This
Agreement may not be amended, modified or rescinded except by an instrument in writing signed by
each of the parties hereto; provided, that AFR may waive compliance by any other party with any
representation, agreement or condition otherwise required to be complied with by any such party
under this Agreement or release any other party from its obligations under this Agreement, but any
such waiver or release shall be effective only if in writing and executed by AFR.




          (c) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, then all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any Party. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree
that the court making such determination shall have the power to limit the term or provision, to
delete specific words or phrases, or to replace any invalid or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified. In the event such court does not exercise the power granted to it in
the prior sentence, upon a determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are fulfilled to the maximum
extent possible.




          (d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF THAT WOULD RESULT IN THE APPLICATION OF LAW OF ANY OTHER JURISDICTION.




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          (e) Counterparts and Signature. This Agreement may be executed in one or more
counterparts, and by the different parties in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which shall constitute one and the same agreement.
This Agreement may be executed and delivered by facsimile or other electronic or portable document
format (pdf) transmission.




          (f) Notices. All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed to have been duly given or made as of the date of receipt and
shall be delivered personally or mailed by registered or certified mail (postage prepaid, return
receipt requested), sent by overnight courier or sent by facsimile, to the parties at the following
addresses or facsimile numbers (or at such other address or facsimile number for a party as shall
be specified by like notice):




	 	 	 	 	 
	 

	 	(i)
	 	if to the Stockholder:
	 
	 	 	 	 
	 

	 	 	 	SSF III Gemini, LP
	 

	 	 	 	c/o Morgan Stanley Real Estate Special Situations Fund III, L.P.
	 

	 	 	 	1585 Broadway, 37th Floor
	 

	 	 	 	New York, New York 10036
	 

	 	 	 	Attention: Hugh Macdonnell
	 

	 	 	 	Facsimile: (212) 507-4561
	 
	 	 	 	 
	 

	 	 	 	with a copy not constituting notice to:
	 
	 	 	 	 
	 

	 	 	 	Fried, Frank, Harris, Shriver & Jacobson LLP
	 

	 	 	 	One New York Plaza
	 

	 	 	 	New York, New York 10004
	 

	 	 	 	Attention: Steven G. Scheinfeld and John E. Sorkin
	 

	 	 	 	Facsimile: (212) 859-4000
	 
	 	 	 	 
	 

	 	(ii)
	 	if to AFR to:
	 
	 	 	 	 
	 

	 	 	 	American Financial Realty Trust
	 

	 	 	 	610 Old York Road
	 

	 	 	 	Jenkintown, PA 19046
	 

	 	 	 	Attention: Edward J. Matey Jr.,
	 

	 	 	 	Facsimile: (215) 887-2585
	 
	 	 	 	 
	 

	 	 	 	with copies not constituting notice to:
	 
	 	 	 	 
	 

	 	 	 	Wachtell, Lipton, Rosen & Katz
	 

	 	 	 	51 West 52nd Street
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Craig M. Wasserman, Esq.
	 

	 	 	 	               Stephanie J. Seligman, Esq.
	 

	 	 	 	Facsimile: (212) 403-2000






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	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	Morgan Lewis & Bockius LLP
	 

	 	 	 	1701 Market Street
	 

	 	 	 	Philadelphia, PA 19103
	 

	 	 	 	Attention: James W. McKenzie, Jr., Esq.
	 

	 	 	 	Facsimile: (877) 432-9652






          (g) Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of
law or otherwise by any of the parties hereto without the prior written consent of the other
parties, and any such assignment or delegation without such prior written consent shall be null and
void, except that AFR may assign this Agreement to any direct or indirect wholly owned subsidiary
of AFR without the consent of the Stockholder (provided that AFR shall remain liable for all of its
obligations under this Agreement) and the Stockholder may assign this Agreement to the extent
permitted by, and in accordance with, Section 2(a). Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors and permitted assigns.




          (h) Interpretation. When reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement, unless otherwise indicated. The headings
contained in this Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule
of strict construction shall be applied against any party. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context requires otherwise. Whenever
the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.” No summary of this Agreement prepared by the
parties shall affect in any way the meaning or interpretation of this Agreement.




          (i) Submission to Jurisdiction. Each of AFR and the Stockholder hereby irrevocably
and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the
State of Maryland or any court of the United States located in the State of Maryland (the
“Maryland Courts”) for any litigation arising out of or relating to this Agreement, or the
negotiation, validity or performance of this Agreement, or the transactions contemplated hereby
(and agrees not to commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in the Maryland Courts and agrees not to
plead or claim in any Maryland Court that such litigation brought therein has been brought in
any inconvenient forum. Each of the parties hereto agrees that service of process may be made on
such party by prepaid certified mail with a proof of mailing receipt validated by the United States
Postal Service constituting evidence of valid service. Service made pursuant to the preceding
sentence shall have the same legal force and effect as if served upon such party personally within
the State of Maryland.




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          (j) Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.




          (k) Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such expenses.




          (l) No Ownership Interest. Except as expressly set forth in this Agreement, nothing
contained in this Agreement shall be deemed to vest in AFR any direct or indirect ownership or
incidence of ownership of or with respect to, or pecuniary interest in, any Shares. All rights and
ownership of and relating to, and pecuniary interest in, any Shares shall remain and belong to the
Stockholder, and AFR shall not have any authority to exercise any power or authority to manage,
direct, superintend, restrict, regulate, govern or administer any of the policies or operations of
Gramercy or exercise any power or authority to direct the Stockholder in the voting of any of the
Shares, except as otherwise expressly provided in this Agreement.




[Remainder of page intentionally blank]




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     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed
individually or by its respective duly authorized officer as of the date first written above.



	 	 	 	 	 	 	 
	 	 	AMERICAN FINANCIAL REALTY
	 	 	TRUST
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Glenn Blumenthal	 	 
	 

	 	 	 	 

Name:  Glenn Blumenthal
	 	 
	 

	 	 	 	Title:    Executive
Vice President and Chief Operating Officer
	 	 
	 
	 	 	 	 	 	 
	 	 	SSF III GEMINI, LP, a Delaware limited
	 	 	partnership
	 
	 	 	 	 	 	 
	 	 	By: SSF III GEMINI GP, LLC,

	 	 	its General Partner
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Hugh MacDonnell	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Hugh MacDonnell
	 	 	Title: Authorized Person