Exhibit 10.2


 


EXECUTION COPY


 


SUPPLEMENTAL
INDENTURE


 


THIS SUPPLEMENTAL INDENTURE, dated as of October 14, 2009 (this
“Supplemental Indenture”), is entered into by and between GKK CAPITAL
LP, a Delaware limited partnership (the “Company”) and THE BANK
OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION (the “Trustee”).


 


Reference is made to the
Junior Subordinated Indenture dated as of January 30, 2009, by and between
the Company and the Trustee (the “Indenture”).


 


WHEREAS, the Company desires to
amend Section 10.6(a) of the Indenture; and


 


WHEREAS, execution and delivery by
the Company of this Supplemental Indenture has been duly authorized by all requisite corporate
action and all other action required to make this Supplemental Indenture a
valid and binding instrument.


 


NOW, THEREFORE, in consideration of the
foregoing, the Trustee and the Company are entering into this Supplemental
Indenture pursuant to Section 9.2 of the Indenture as follows:


 


ARTICLE I

AMENDMENTS TO INDENTURE


 


Section 1.01           Relation
to Indenture.  This Supplemental
Indenture amends and supplements the Indenture and shall be part and subject to
all terms thereof.  Except as amended and
supplemented hereby, the Indenture and the Securities issued thereunder shall
continue in full force and effect.


 


Section 1.02           Definitions.  Each term used herein that is defined in the
Indenture shall have the meaning assigned to such term in the Indenture unless
otherwise specifically defined herein, in which case the definition set forth
herein shall govern.


 


Section 1.03           Section 10.6(a) of
the Indenture is hereby deleted in its entirety and replaced with the
following:


 


“The Company
covenants and agrees with each Holder of Securities that during any period in
which an Event of Default shall have occurred and be continuing, it shall not (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a liquidation payment with respect to, any units of the Company’s limited
partnership interests, (ii) vote in favor of or permit or otherwise allow
any of its subsidiaries to declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, or
otherwise retire, any shares of any subsidiary’s preferred stock (for the
avoidance of doubt, whether such preferred stock is perpetual or otherwise); or
(iii) make any payment of principal of or any interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Securities (other
than (A) repurchases, redemptions or other acquisitions of units of
limited partnership interests of the Company in connection with any employment
contract, benefit plan or other similar 


 





















 


arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend, reinvestment or limited partnership
interests purchase plan or in connection with the issuance of limited
partnership interests of the Company (or securities convertible into or
exercisable for such units of limited partnership interests) as consideration
in an acquisition transaction entered into prior to an Event of Default, (B) as
a result of an exchange or conversion of any class or series of the Company’s
limited partnership interests (or any capital stock or other limited
partnership interests of a Subsidiary of the Company) for any class or series
of the Company’s limited partnership interests or of any class of series of the
Company’s indebtedness for any class or series of the Company’s limited
partnership interests, (C) the purchase of fractional interest in the
Company’s limited partnership interests pursuant to the conversion or exchange
provisions of such limited partnership interests or the security being
converted or exchanged, (D) any declaration of a dividend in connection
with any Rights Plan, the issuance of rights, limited partnership interests or
other property under the Rights Plan or the redemption or repurchase of rights
pursuant thereto or (E) any dividend in the form of limited partnership
interests, warrants, options or other rights where the dividend, or limited
partnership interests issuable upon exercise of such warrants, options, or
other rights are the same limited partnership interests as that on which the
dividend is being paid or ranks pari passu with or junior to such limited
partnership interest).”


 


Section 1.04           The
Trustee accepts the trust in this Supplemental Indenture declared and provided
upon the terms and conditions set forth in the Indenture.  The Trustee shall not be responsible in any
manner whatsoever for the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.


 


Section 1.05           This
Supplemental Indenture shall become effective only upon the satisfaction of the
following conditions:  (i) the
Trustee shall have received a counterpart of this Supplemental Indenture duly
executed by the Company and the Trustee, (ii) the delivery of an Opinion
of Counsel relating to this Supplemental Indenture in accordance with Sections
1.2(a) and 9.3 of the Indenture, (iii) the delivery of an
Officer’s Certificate relating to this Supplemental Indenture in accordance
with Sections 1.2 and 9.3 of the Indenture, and (iv) the
Holders shall have paid all attorneys’ fees and disbursements of the Trustee in
connection with this Supplemental Indenture, which legal expenses shall be paid
simultaneously with the execution of this Supplemental Indenture.


 


Section 1.06           By
execution of this Supplemental Indenture, Taberna Preferred Funding II,
Ltd., Taberna Preferred Funding III, Ltd., Taberna Preferred Funding IV, Ltd.,
Taberna Preferred Funding V, Ltd., Taberna Preferred Funding VII, Ltd. and
Taberna Preferred Funding VIII, Ltd., collectively as Holders of 100% of the
Outstanding Securities, hereby in accordance with Section 9.2 of
the Indenture, (i) consent to the Trustee and the Company executing and
delivering this Supplemental Indenture, (ii) direct the Trustee to execute
and deliver this Supplemental Indenture and (iii) agree to and do hereby
release the Trustee for any action taken or to be taken by the Trustee in
connection with its execution and delivery of this Supplemental Indenture and
for any liability or responsibility arising in connection herewith.


 


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Section 1.07           This
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original for all purposes; but such counterparts
shall together be deemed to constitute but one and the same instrument.  The executed counterparts may be delivered by
facsimile transmission, which facsimile copies shall be deemed original copies.


 


Section 1.08           The
laws of the State of New York shall govern this Supplemental Indenture without
regard to the conflict of law principles thereof.


 


Section 1.09           In the
event of any inconsistency between the terms and conditions of this
Supplemental Indenture and the terms and conditions of the Indenture, the terms
and conditions of this Supplemental Indenture shall prevail.


 


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Blank]


 


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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the day and year first above
written.


 


	
   

  	
  GKK CAPITAL LP,

  	
   

  
	
   

  	
  as Company

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Gramercy Capital Corp.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Roger M. Cozzi

  
	
   

  	
   

  	
   

  	
  Name: Roger M. Cozzi

  
	
   

  	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON
  TRUST COMPANY, NATIONAL ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill Marshall

  
	
   

  	
   

  	
  Name:

  	
  Bill Marshall

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TABERNA PREFERRED FUNDING II,
  LTD.

  
	
   

  	
  TABERNA PREFERRED FUNDING III,
  LTD.

  
	
   

  	
  TABERNA PREFERRED FUNDING IV,
  LTD.

  
	
   

  	
  TABERNA PREFERRED FUNDING V,
  LTD.

  
	
   

  	
  TABERNA PREFERRED FUNDING VII,
  LTD.

  
	
   

  	
  TABERNA PREFERRED FUNDING VIII,
  LTD.

  
	
   

  	
  (as to Sections 1.05 and 1.06 only)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Taberna Capital Management, LLC,

  
	
   

  	
   

  	
  as collateral manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael A. Fralin

  
	
   

  	
   

  	
   

  	
  Name: Michael A. Fralin

  
	
   

  	
   

  	
   

  	
  Title: Managing Director

  
					



 


Supplemental Indenture Signature Page