Exhibit 10.1
Execution Copy
AMENDMENT AND COMPROMISE AGREEMENT
This AMENDMENT AND COMPROMISE AGREEMENT ("Amendment") dated as of March 31, 2009
(the "Effective Date") is made by and among GKK CAPITAL LP, a Delaware limited
partnership (the "Borrower"), and KEYBANK NATIONAL ASSOCIATION, a national
banking association as Administrative Agent (hereinafter referred to in such
capacity as the "Agent") for the Banks under the Credit Agreement referred to
herein and as a Bank, and RAYMOND JAMES BANK, FSB; CITICORP NORTH AMERICA, INC.;
DEUTSCHE BANK TRUST COMPANY AMERICAS; MORGAN STANLEY SENIOR FUNDING, INC., and
WELLS FARGO BANK, N.A., as the Banks; and certain other parties identified on
the signature pages hereof.
Reference is made to the First Amended and Restated Credit Agreement dated as of
June 28, 2007, by and among the Borrower, the Banks, the Agent, the Sole Lead
Manager and Arranger (as amended from time to time, the "Existing Credit
Agreement"; and as amended hereby, the "Credit Agreement").
The Borrower, the Banks and the Agents have agreed that the Existing Credit
Agreement be amended, settled and compromised on the terms and conditions
provided herein, effective as of the Effective Date.
NOW, THEREFORE, in consideration of the foregoing and for other consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
DEFINITIONS.
(A)
THE FOLLOWING DEFINITIONS CONTAINED IN SECTION 1.1 (DEFINITIONS
AND RULES OF INTERPRETATION) OF THE EXISTING CREDIT AGREEMENT SHALL BE AMENDED
AND RESTATED IN ITS ENTIRETY:
(I)
"EVENTS OF DEFAULT" HAS THE MEANING GIVEN IN SECTION 8(A) OF THE
COMPROMISE AGREEMENT.
(II)
"LOANS" MEANS LOANS WHICH WERE ORIGINALLY MADE TO THE BORROWER
UNDER THE CREDIT AGREEMENT, AS REDUCED TO THE REDUCED PRINCIPAL BALANCE AND MADE
NON-RECOURSE IN ACCORDANCE WITH THE PROVISIONS OF THIS AMENDMENT.
(III)
"MATURITY DATE" MEANS DECEMBER 31, 2056 OR SUCH EARLIER DATE ON
WHICH THE LOANS SHALL BECOME DUE AND PAYABLE PURSUANT TO THE TERMS HEREOF.
(iv)
"Obligations" means the Loans in the amount of the Reduced
Principal Balance on the Effective Date plus any Default Interest accruing
thereon and all other obligations, if any, arising under the Compromise
Agreement.
(B)
THE FOLLOWING ADDITIONAL TERMS USED IN THIS
AMENDMENT SHALL HAVE THE MEANINGS INDICATED BELOW AND SHALL BE INSERTED
ALPHABETICALLY INTO THE EXISTING CREDIT AGREEMENT:
(I)
"AMENDMENT PARTIES" MEANS THE OBLIGORS AND EACH OWNER OF
DEDICATED CDO SECURITIES.
(II)
"BANKRUPTCY PROCEEDING" MEANS A PROCEEDING COMMENCED BY VOLUNTARY
OR INVOLUNTARY PETITION PURSUANT TO THE BANKRUPTCY REFORM ACT OF 1978, AS
AMENDED.
(III)
"COMPROMISE AGREEMENT" MEANS THAT CERTAIN AMENDMENT AND
COMPROMISE AGREEMENT DATED AS OF MARCH 31, 2009, BETWEEN THE BORROWER, THE AGENT
AND LENDERS THERETO.
(IV)
"DEDICATED CDO SECURITIES CASH FLOW" MEANS FIFTY PERCENT (50%) OF
ALL PAYMENTS OF ANY NATURE MADE FROM TIME TO TIME FROM OR ON ACCOUNT OF
OWNERSHIP RIGHTS, TITLE AND INTEREST IN AND TO DEDICATED CDO SECURITIES
COMMENCING WITH THE THIRD QUARTER OF 2009 (PAYMENT DATES OF JULY 27, 2009 FOR
THE 2005 AND 2006 CDOS AND AUGUST 15,