jer_exhibit10-1.htm


    


      Exhibit
10.1

       

      


      AGREEMENT (this “Agreement”) dated as
of December 11, 2008, by JER Investors Trust Finance Company GS, LLC (the “Seller”), JER
Investors Trust Inc. (the “Guarantor”) and
Goldman Sachs Mortgage Company (“Buyer”), each a
“Party”, and,
collectively, the “Parties”.

       

      Reference
is made to (i) the Master Repurchase Agreement between Buyer and the Seller,
dated as of September 21, 2006, as amended pursuant to that certain Omnibus
Amendment, dated as of September 28, 2007 (the “Omnibus Amendment”),
as further amended by that certain Waiver and Amendment, dated as of March 27,
2008 (the “Waiver and
Amendment”), and as further amended by that certain Second Omnibus
Amendment, dated as of October 16, 2008 (the “Second Omnibus Amendment”)
(as so amended and as may be further amended, supplemented or modified, and
together with all schedules, annexes and exhibits thereto, and all confirmations
exchanged pursuant to the Transactions entered into in connection therewith, the
“Repurchase
Agreement”) and (ii) the Guaranty by Guarantor in favor of Buyer, dated
as of September 21, 2006, as amended by the Omnibus Amendment, the Waiver and
Amendment and the Second Omnibus Amendment (as so amended and as may be further
amended, supplemented or modified, the “Guaranty”).  All
capitalized terms not otherwise defined herein have the meaning set forth in the
Repurchase Agreement.

       

      NOW,
THEREFORE, in consideration of the foregoing, the Parties have agreed as
follows:

       

      1.  Satisfaction of Margin
Call.  Buyer hereby acknowledges receipt from Seller of payment
in the amount of $2,000,000.00, which payment Buyer accepts in full satisfaction
of the margin call made by Buyer to Seller on December 4, 2008 (the “Margin Call”), in
order to resolve the Margin Deficit in the amount of $2,205,824.33. Buyer hereby
waives any claim that Buyer may have, at law or in equity, to the unpaid balance
of the Margin Call.

       

      2.  Additional
Payment.  On any Business Day (the “Closing Date”) on or
prior to 2:00 p.m. (New York City time) on December 31, 2008 (the “Outside Date”),
Seller shall pay to Buyer $1,500,000.00 (the “Paydown Amount”),
which amount shall be applied to reduce the Repurchase Price under the
Repurchase Agreement. In addition, on the Closing Date, Guarantor shall execute
and deliver to Buyer an unsecured promissory note (the “Note”) in the
principal amount of $500,000.00 in the form attached hereto as Exhibit A to this
Agreement.

       

      3.  Purchase of Purchased
Loans. On the Closing Date
(i) Buyer and Seller agree that the Repurchase Date for all Transactions under
the Repurchase Agreement shall be deemed to occur, (ii) the Repurchase Price
(including accrued and unpaid Price Differential) shall be due and payable by
Seller to Buyer, and, subject to receipt of the Repurchase Price (it being
agreed that accrued and unpaid Price Differential to but excluding the Closing
Date shall be paid by Seller to Buyer by wire transfer in immediately available
funds on the Closing Date and the balance of the Repurchase Price shall be
subject to netting as described below), Buyer shall be obligated to transfer the
Purchased Loans to Seller pursuant to the Repurchase Agreement, (iii) the Seller
shall sell and transfer to Buyer, free and clear of all liens, claims,
encumbrances, obligations, liabilities or any similar interests whatsoever
(other than any liens created under the Repurchase Agreement and the other
Transaction Documents), and Buyer agrees to purchase, the Purchased Loans at a
purchase price equal to the Closeout Purchase Price (as defined below), and (iv)
upon consummation of the transactions described in the foregoing clauses (i),
(ii) and (iii), the Repurchase Agreement, the Guaranty and the other Transaction
Documents shall terminate and


      
        
           


        

        
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      be of no further force or
effect.  The transactions contemplated by clauses (i), (ii) and (iii)
of the prior sentence and the termination of the Repurchase Agreement, the
Guaranty and the other Transaction Documents shall be confirmed by such form of
confirmation or trade ticket as Buyer customarily uses.  The Closeout
Purchase Price due from Buyer to Seller shall be netted against the payment of
the aggregate Repurchase Price payable by Seller to Buyer and the obligation of
Buyer to transfer the Purchased Loans to Seller shall be netted against the
obligation of Seller to transfer the Purchased Loans to Buyer.  The
“Closeout
Purchase Price” means, with
respect to the Transactions, the Repurchase Price for the Transactions
less accrued and unpaid Price Differential
to but excluding the Closing Date.

       

      4.  Representations and
Warranties.  Each of Seller, the Guarantor and Buyer represents
and warrants that (i) this Agreement has been duly authorized, executed and
delivered, (ii) the transactions contemplated hereby have been duly authorized
by all necessary action, do not violate any agreement, document or law or
regulation or require any consent or filing with any person or entity, and (iii)
this Agreement constitutes the legal, valid, and binding obligations of such
Party, enforceable against such Party in accordance with its
terms.   Seller and Guarantor each acknowledge and agree that the
transactions hereunder constitute “reasonably equivalent value” and “fair
consideration” (as such terms are used in connection with any applicable
fraudulent conveyance, fraudulent transfer or other similar laws) and are made
in good faith.

       

      5.  Standstill.  From and after the date hereof to the
earlier to occur of the Closing Date and the Outside Date (the “Standstill
Period”), except as
provided herein, Buyer shall and hereby agrees that (i) any margin call or
maintenance rights of Buyer under the Repurchase Agreement, the Guaranty or
applicable law and (ii) any financial covenants of Seller or Guarantor
under the Repurchase Agreement and the Guaranty, shall, in each case, be
suspended.  Notwithstanding the foregoing, this Agreement and the
Standstill Period shall immediately terminate, and all obligations of the
parties under this Agreement shall immediately terminate upon the occurrence of
any of the following events: (a) breach by the Seller or the Guarantor of its
obligations under this Agreement, (b) the incurrence of additional indebtedness
by the Seller, the Guarantor or any of their respective subsidiaries (except
that (y) Seller and Guarantor shall be permitted to incur ordinary course trade
payables and (z) Guarantor shall be permitted to declare, in December 2008, and
pay, in January 2009, cash dividends in an amount not to exceed Six Million
Dollars ($6,000,000)), (c) Seller or Guarantor shall agree or seek to amend,
restate, supplement or otherwise modify the terms of any documents governing any
indebtedness of Seller, Guarantor or any of their
respective  subsidiaries without offering the same terms and
conditions to Buyer (except that Guarantor shall be permitted to enter into an
amendment of its guaranty of the JPM MRA (as defined below) and a subsidiary of
Guarantor shall be permitted to enter into an amendment to the JPM MRA, in each
case, containing substantially the same terms (and no additional material terms)
provided by Seller to Buyer, and approved by Buyer, prior to the date hereof,
(d) the commencement of any bankruptcy, insolvency, receivership or other
similar proceedings (whether voluntary or involuntary) in respect of the Seller
or the Guarantor, (e) Seller or Guarantor shall make any equity distribution
payments (other than as set forth in clause (b) this Section 5), (f) Seller or
Guarantor shall, directly or indirectly, make any payments in connection with
any “Margin Deficit”, as such term defined in that certain Master Repurchase
Agreement, dated as of September 12, 2008, by and between J.P. Morgan Securities
Inc. and JERIT Finance CO JPM, LLC (the “JPM
MRA”) (excluding a
repayment, in an amount not to exceed Three Million Dollars ($3,000,000), with
respect to the JPM MRA), unless a


      
        
           


        

        
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      proportionate payment of the Repurchase
Price is repaid concurrently with such payment or (g) any Purchased Loan shall
become a Defaulted Loan.

       

      6.  Releases.  The Parties agree that, on the Closing
Date, the termination of the Transactions, the Repurchase Agreement and the
Guaranty pursuant to this Agreement and the sale of the Purchased Loans and
delivery by Seller to Buyer of a duly executed Note in accordance with this
Agreement shall be full and final settlement of all claims whatsoever under the
Repurchase Agreement, the Guaranty and the other Transaction Documents (i) which
may be made by the Seller or the Guarantor against Buyer arising out of, or in
connection with, the Transactions, the Repurchase Agreement, the Guaranty and
the other Transaction Documents and (ii) which may be made by Buyer against the
Seller or the Guarantor arising out of, or in connection with the Transactions,
the Repurchase Agreement, the Guaranty and the other Transaction
Documents.  Upon Buyer’s timely receipt of the Paydown Amount and the
Note on the Closing Date and the consummation of the sale of the Purchased Loans
by Seller to Buyer, each of the Seller and the Guarantor agree to release and
forever discharge Buyer and its present and future subsidiaries, affiliates,
directors, officers, managers and agents, from any and all claims and
liabilities of every nature and description, which then or thereafter exist,
arising out of, or connected or relating to, the Transactions, the Repurchase
Agreement, the Guaranty or the other Transaction Documents, and Buyer agrees to simultaneously
release and forever discharge Seller and the Guarantor and their respective
present and future subsidiaries, affiliates, directors, officers, managers and
agents, from any and all claims and liabilities of every nature and description,
which now or hereafter exist, arising out of, or connected or relating to, the
Transactions, the Repurchase Agreement, the Guaranty or the other Transaction
Documents; provided, however, that nothing in this Agreement or
these releases shall be deemed to release any obligation of
Buyer,  the Seller or the Guarantor, as the case may be, arising under
this Agreement or the transactions contemplated hereunder, including but not
limited to the Guarantor’s obligations under the Note. In connection with the releases granted
herein, each of the Parties hereby waive all rights conferred by the provisions
of California Civil Code Section 1542 and/or any similar state or federal
law.  California Civil Code Section 1542 provides as
follows:

      


      A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

       

      The Parties understand and acknowledge
the significance and consequence of their waiver of Section 1542 of the
California Civil Code, as well as any other federal or state statute or common
law principle of similar effect, and acknowledge that this waiver is a material
inducement to and consideration for each other Party’s execution of this
Agreement.

      


      7.  Safe Harbor
Rights.  Seller
and the Guarantor acknowledge and agree that (i) this Agreement and the
Repurchase Agreement constitute a “repurchase agreement” within the meaning of
section 101(47) of the United States Bankruptcy Code (the “Code”), and a “securities contract” within
the meaning of section 741(7) of the Code, (ii) the exercise by Buyer of rights
hereunder and as set forth in the Repurchase Agreement are rights described in
and protected by sections 362(b)(6), 362(b)(7), 362(b)(27), 555, 559 and 561 of
the Code, (iii) Buyer is entitled to all


      
        
           


        

        
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      rights and protections applicable to
“repurchase agreements” and “securities contracts” under the Code, including,
without limitation, the rights and protections described in the Code sections
referenced in (ii) of this Section 7, the rights and protections afforded under
sections 546(e), 546(f), 546(j), 548(d)(2)(B), 548(d)(2)(C) of the Code, and the
rights and protections applicable to setoffs or netting described in sections
362(b)(6), 362(b)(7), 555, 559 and 561 of the Code.

      


      8.  No Waiver of Rights or
Remedies.  The Parties agree that other than as expressly set
forth herein, nothing in this Agreement or the performance by the Parties of
their respective obligations hereunder constitutes or shall be deemed to
constitute a waiver of Buyer’s rights, powers or privileges and/or remedies
under the terms of the Repurchase Agreement, the Guaranty, the other Transaction
Documents, the Note or applicable law, all of which are hereby reserved,
including without limitation, (i) any rights or remedies in connection with
any bankruptcy, insolvency, receivership or other similar proceedings (whether
voluntary or involuntary) in respect of the Seller or the Guarantor (to which
this
Agreement shall not apply), and (ii) any rights to set-off, recoup,
net or exercise similar rights whether or not in connection with any bankruptcy,
insolvency, receivership or other similar proceedings (whether voluntary or
involuntary).  In consideration of the suspension of certain rights of
Buyer and certain obligations of Seller and Guarantor under the Repurchase
Agreement, the Guaranty and applicable law pursuant to this Agreement, the
Seller and the Guarantor each agree not to pursue, and expressly waive, any
claims or remedies that may arise under the Repurchase Agreement or the Guaranty
(or otherwise) based on such suspension of certain rights of Buyer and certain
obligations of Seller and Guarantor under the Repurchase Agreement or the
Guaranty and agree that such suspension shall not constitute a waiver or
forbearance (except as otherwise provided herein) of any rights or remedies
Buyer may
have.  This Agreement is not intended to be, and shall not be
deemed or construed to be, a cure, satisfaction, reinstatement, novation, waiver
or release of the Repurchase Agreement, the Guaranty or any other Transaction
Document, the obligations thereunder, or of any prior, existing and/or future
defaults or events of default thereunder, except to the extent expressly set
forth herein and subject to, with respect to Seller and Guarantor, satisfaction
of their obligations set forth herein.  Seller and Guarantor agree
that, except as otherwise expressly set forth herein, the Repurchase Agreement,
the Guaranty and the other Transaction Documents are and shall continue to be in
full force and effect and shall be legal, valid and binding agreements of the
Seller and the Guarantor, as the case may be, enforceable in accordance with
their respective terms.

      


      9.  Miscellaneous.  This
Agreement embodies the entire agreement and understanding of the Parties with
respect to the subject matter of this Agreement, and supersedes all prior or
contemporaneous agreements or understandings, whether written or oral, between
or among the Parties with respect to that subject matter.  This
Agreement may be amended, and the terms hereof may be waived, only by a written
instrument signed by each of the Parties, or, in the case of a waiver, by the
Party waiving compliance.  Any acceptance by Buyer or its affiliates
of performance from, or performance by Buyer or its affiliates to, the Seller
under any agreement, including this agreement, between Buyer or any of its
affiliates and the Seller or any of its affiliates or otherwise (including
without limitation the rollover of, or entry into, any transactions under, or
amendments, supplements or modifications to, any agreement or otherwise), or any
temporary suspension of certain rights that Buyer or any of its affiliates may
have, shall not constitute a waiver or forbearance of any rights or remedies
Buyer or its affiliates may have. 


      
        
           


        

        
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      This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.  This Agreement may be executed and delivered by facsimile
or PDF.  Any facsimile or PDF signatures shall have the same legal
effect as manual signatures.  The Seller and the Guarantor shall not
have any right to transfer or delegate (whether by way of security or otherwise)
this Agreement or any right, title, interest, power, privilege, remedy,
obligation or duty in, to or under this Agreement, in whole or in part, without
the prior written consent of Buyer.  Buyer may transfer or delegate
(whether by way of security or otherwise) this Agreement or any right, title,
interest, power, privilege, remedy, obligation or duty in, to or under this
Agreement, in whole or in part, to an affiliate of Buyer or any entity sponsored
or organized by, or on behalf of or for the benefit of, Buyer without the
consent of the Seller or the Guarantor.

       

      This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (without reference to its conflicts of laws principles) and
the Parties agree to submit to the non-exclusive jurisdiction of the federal and
state courts in the borough of Manhattan in New York, New York in relation to
any dispute arising out of or in connection with this Agreement.

       

      [SIGNATURES
COMMENCE ON NEXT PAGE]


      
        
           


        

        
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      IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first above written.

       

      
        	 
      	
                GOLDMAN
      SACH MORTGAGE COMPANY,

                a
      New York limited partnership

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                Goldman
      Sachs Real Estate Funding Corp.,

                its
      general partner

              
	 
      	 
      
	 
      	 
      
	 
      	 
      	
                By:

              	
                /s/
      Mark Buono

              	 
      
	 
      	 
      	 
      	
                Name:

              	 
      Mark
      Buono	 
      
	 
      	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                JER
      INVESTORS TRUST FINANCE COMPANY GS, LLC,

                a
      Delaware limited liability company

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                /s/
      Mark S. Weiss

              	 
      
	 
      	 
      	
                Name:

              	
                Mark
      S. Weiss

              	 
      
	 
      	 
      	
                Title:

              	
                President

              	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                JER
      INVESTORS TRUST INC.,

                a
      Maryland corporation

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	
                /s/
      Mark S. Weiss

              	 
      
	 
      	 
      	
                Name:

              	
                Mark
      S. Weiss

              	 
      
	 
      	 
      	
                Title:

              	
                President

              	 
      
	 
      	 
      


      

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Exhibit
A

      


      PROMISSORY
NOTE

      JER
Investors Trust Inc.

      


      
        	
                $500,000.00

              	
                New
      York, New York

              
	 
      	
                December
      __, 2008

              
	 
      	 
      


      

      FOR
VALUE RECEIVED, the undersigned JER INVESTORS TRUST INC., a Maryland corporation
(the “Maker”),
promises to pay to GOLDMAN SACHS MORTGAGE COMPANY, a New York limited
partnership, and its successors and registered assigns (the holder of this Note
from time to time, or any portion hereof, is hereinafter referred to as the
“Holder”) or to
such other account pursuant to such other wiring instruction as the Holder may
from time to time designate in writing, the original principal amount of FIVE
HUNDRED THOUSAND AND No/100 DOLLARS ($500,000.00) (the “Principal
Amount”).

       

      The
principal sum evidenced by this note (this “Note”) shall be due
and on February 27, 2009 (the “Maturity Date”). This
Note shall bear no interest from the date hereof to the Maturity Date. From and
after the Maturity Date, if the Principal Amount of this Note is not repaid in
full, default interest shall accrue on the Principal Amount at an annual
interest rate equal to the Prime Rate (as defined below) plus 2.0%, which
interest shall accrue on a daily basis until the Principal Amount and such
accrued default interest is paid in full. “Prime Rate” shall mean the “prime
rate” published in the “Money Rates” section of The Wall Street
Journal.  If The Wall Street
Journal ceases to publish the “prime rate,” then Holder shall select an
equivalent publication that publishes such “prime rate,” and if such “prime
rate” is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then Holder shall reasonably
select a comparable interest rate index.

       

      With
respect to the amounts due and payable pursuant to this Note, the Maker waives
demand, presentment and notice.

       

      This
Note may not be assigned in whole or in part by the Maker.  The Holder
shall have the right from time to time at its discretion to assign this Note, in whole or in
part.

       

      The
Holder shall not by any act, delay, omission or otherwise be deemed to have
amended, modified, supplemented, waived, extended, discharged or terminated any
of its rights or remedies, except by an amendment, modification, supplement,
waiver, extension, discharge or termination in writing and signed by the
appropriate parties.  All rights and remedies of the Holder under the
terms of this Note and applicable statutes or rules of law shall be cumulative,
and may be exercised successively or concurrently.  The Maker agrees
that there are no defenses, equities or setoffs with respect to the obligations
set forth herein.

       

      Wherever
possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.

       

      This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.

       

      ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE HOLDER OR THE MAKER ARISING OUT OF
OR RELATING TO THIS NOTE SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN
NEW YORK, NEW YORK.  THE MAKER, AND BY ACCEPTANCE OF THIS NOTE, THE
HOLDER, HEREBY (i) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUIT, ACTION OR PROCEEDING.

       

      THE
MAKER AND, BY ACCEPTANCE HEREOF, THE HOLDER, TO THE FULLEST EXTENT THAT EACH MAY
LAWFULLY DO SO, WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING,
WITHOUT LIMITATION, ANY TORT ACTION), BROUGHT BY EITHER PARTY HERETO WITH
RESPECT TO THIS NOTE.

      


      [Signature
page follows]


      
        
           


        

        
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      IN
WITNESS WHEREOF, the Maker has caused this Note to be executed as of the day and
year first above written.

       

      
        	 
      	
                 
      MAKER:

              
	 
      	 
      
	 
      	
                 JER INVESTORS TRUST
      INC.,

                 a
      Maryland corporation

              
	 
      	 
      
	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title: