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
capit
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