FS Credit Real Estate Income Trust, Inc. 8-K


 


Exhibit 10.1


 





FIRST
Amendment to UNCOMMITTED Master Repurchase and securities

 contract Agreement


 


This
FIRST Amendment to UNCOMMITTED Master Repurchase and Securities Contract Agreement (this “Amendment”),
dated as of June 6, 2018, is by and between GOLDMAN SACHS BANK USA, a New York state-chartered bank, as buyer (“Buyer”),
and FS CREIT FINANCE GS-1 LLC, a Delaware limited liability company, as seller (“Seller”). Capitalized
terms used but not otherwise defined herein shall have the meanings given to them in the Master Repurchase Agreement (as defined
below).


 


W I T N E S S E T H:


WHEREAS, Seller
and Buyer have entered into that certain Uncommitted Master Repurchase and Securities Contract Agreement, dated as of January
26, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Master Repurchase
Agreement”);


 


WHEREAS, Seller
has requested that Buyer increase the Maximum Facility Amount, and Buyer has agreed to increase the Maximum Facility Amount in
accordance with the terms and conditions set forth herein; and


 


WHEREAS, Seller
and Buyer wish to modify certain terms and provisions of the Master Repurchase Agreement.


 


NOW, THEREFORE,
for good and valuable consideration, the parties hereto agree as follows:


 


1.      
Amendments to Master Repurchase Agreement. The Master Repurchase Agreement is hereby amended as follows:


(a)   
The definition of “Maximum Facility Amount” in Article 2 of the Master Repurchase Agreement is hereby deleted
in its entirety and replaced with the following:


“Maximum
Facility Amount” shall mean One Hundred Thirty Million Dollars ($130,000,000.00), as such amount may be increased to
One Hundred Seventy-Five Million Dollars, and/or Two Hundred Fifty Million Dollars, pursuant to Article 3(n).


2.      
Effectiveness. The effectiveness of this Amendment is subject to receipt by Buyer of the following:


(a)   
Amendment. This Amendment, duly executed and delivered by Seller and Buyer.


(b)   
Responsible Officer Certificate. A signed certificate from a Responsible Officer of Seller certifying: (i) that no amendments
have been made to the organizational documents of Seller since January 26, 2018, unless otherwise stated therein; and (ii) the
authority of Seller to execute and deliver this Amendment and the other Transaction Documents to be executed and delivered in
connection with this Amendment.


(c)   
Good Standing. Certificates of existence and good standing and/or qualification to engage in business for the Seller.




    		 	 



    	 



    


 


(d)   
Legal Opinion. Opinions of outside counsel to Seller reasonably acceptable to Buyer as to such matters as Buyer may reasonably
request, provided, that the execution of this Amendment by Buyer shall evidence satisfaction of this condition.


(e)   
Fees. Payment by Seller of the actual costs and expenses, including, without limitation, the reasonable fees and expenses
of counsel to Buyer, incurred by Buyer in connection with this Amendment and the transactions contemplated hereby.


3.      
Seller Representations. Seller hereby represents and warrants that:


(a)   
no Potential Event of Default, Event of Default or Margin Deficit exists, and no Potential Event of Default, Event of Default
or Margin Deficit will occur as a result of the execution, delivery and performance by Seller of this Amendment; and


(b)   
the representations and warranties contained in Article 13 of the Master Repurchase Agreement are true and correct in all material
respects (except to the extent that such representations and warranties specifically refer to any earlier date, in which case
Seller represents and warrants that such representations and warranties are true and correct as of such earlier date and except
that the representations and warranties regarding Seller or Guarantor’s financial statements are deemed to refer to the
most recent financial statements furnished to Buyer).


4.      
Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Master
Repurchase Agreement.


5.      
Continuing Effect; Reaffirmation of Guarantee Agreement. As amended by this Amendment, all terms, covenants and provisions
of the Master Repurchase Agreement are ratified and confirmed and shall remain in full force and effect. In addition, any and
all guaranties and indemnities for the benefit of Buyer (including, without limitation, the Guarantee Agreement) and agreements
subordinating rights and liens to the rights and liens of Buyer, are hereby ratified and confirmed and shall not be released,
diminished, impaired, reduced or adversely affected by this Amendment, and each party indemnifying Buyer, and each party subordinating
any right or lien to the rights and liens of Buyer, hereby consents, acknowledges and agrees to the modifications set forth in
this Amendment and waives any common law, equitable, statutory or other rights which such party might otherwise have as a result
of or in connection with this Amendment.


6.      
Binding Effect; No Partnership; Counterparts. The provisions of the Master Repurchase Agreement, as amended hereby, shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing
herein contained shall be deemed or construed to create a partnership or joint venture between any of the parties hereto. For
the purpose of facilitating the execution of this Amendment as herein provided, this Amendment may be executed simultaneously
in any number of counterparts, each of which shall be deemed to be an original, and such counterparts when taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart signature page to this Amendment in Portable Document
Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart thereof.


7.      
Further Agreements. Seller agrees to execute and deliver such additional documents, instruments or agreements as may be
reasonably requested by Buyer and as may be necessary or appropriate from time to time to effectuate the purposes of this Amendment.


8.      
Governing Law. The provisions of Article 20 of the Master Repurchase Agreement are incorporated herein by reference.


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9.      
Headings. The headings of the sections and subsections of this Amendment are for convenience of reference only and shall
not be considered a part hereof nor shall they be deemed to limit or otherwise affect any of the terms or provisions hereof.


10.  
References to Transaction Documents. All references to the Master Repurchase Agreement in any Transaction Document, or
in any other document executed or delivered in connection therewith shall, from and after the execution and delivery of this Amendment,
be deemed a reference to the Master Repurchase Agreement as amended hereby, unless the context expressly requires otherwise.


11.  
No Waiver.  The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Buyer under the Master Repurchase Agreement or any other Transaction Document, nor constitute a waiver of any
provision of the Master Repurchase Agreement or any other Transaction Document by any of the parties hereto.


 


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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day first written above.


	 	BUYER:
	 	 
	 	 
	 	GOLDMAN SACHS BANK USA,
    a New York state-chartered bank
	 	 
	 	 
	 	By:	/s/ Jeffrey Dawkins
	 	 	Name:  Jeffrey Dawkins
	 	 	Title:  Authorized Person


 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]




 




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	 	SELLER:
	 	 
	 	 
	 	FS CREIT FINANCE GS-1
    LLC, a Delaware limited liability company
	 	 
	 	 
	 	By:	/s/ William Goebel
	 	 	Name: William Goebel
	 	 	Title: Chief Financial Officer


 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]


 



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The undersigned
hereby acknowledges the execution of the Amendment and agrees that the Guarantee Agreement and agreements therein subordinating
rights and liens to the rights and liens of Buyer, are hereby ratified and confirmed and shall not be released, diminished, impaired,
reduced or adversely affected by this Amendment, and each party indemnifying Buyer therein, and each party subordinating any right
or lien to the rights and liens of Buyer, therein, hereby acknowledges the modifications set forth in this Amendment and waives
any common law, equitable, statutory or other rights which such party might otherwise have as a result of or in connection with
this Amendment. In addition, the undersigned reaffirms its obligations under the Guarantee Agreement and agrees that its obligations
under the Guarantee Agreement shall remain in full force and effect and apply to the additional components referenced in this Amendment.




 


 


	 	GUARANTOR:
	 	 
	 	 
	 	FS CREDIT REAL ESTATE INCOME TRUST, INC., a Maryland corporation
	 	 
	 	 
	 	By:	/s/ William Goebel
	 	 	Name: William Goebel
	 	 	Title: Chief Financial Officer


 



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