**Exhibit10.10**

 

**EXECUTIONCOPY**

 

**Master Repurchase Agreement**

Bond Market AssociationSeptember 1996 Version

 

 

Dated as of:  January 3, 2005

Between: GoldmanSachs Mortgage Company (“Buyer”)

and GramercyWarehouse Funding II LLC (GWF-II) (“Seller”)

** **

**1.****              Applicability**

From time to time theparties hereto may enter into transactions in which one party (“Seller”) agreesto transfer to the other (“Buyer”) securities or other assets (“Securities”)against the transfer of funds by Buyer, with a simultaneous agreement by Buyerto transfer to Seller such Securities at a date certain or on demand, againstthe transfer of funds by Seller. Each such transaction shall be referred toherein as a “Transaction” and, unless otherwise agreed in writing, shall begoverned by this Agreement, including any supplemental terms or conditionscontained in Annex I hereto and in any other annexes identified herein ortherein as applicable hereunder.

 

**2.****              Definitions**

(a)          “Actof Insolvency”, with respect to any party, (i) the commencement by such partyas debtor of any case or proceeding under any bankruptcy, insolvency,reorganization, liquidation, moratori­um, dissolution, delinquency or similarlaw, or such party seeking the appointment or election of a receiver,conservator, trustee, custodian or similar official for such party or anysubstantial part of its property, or the convening of any meeting of creditorsfor purposes of commencing any such case or proceeding or seeking such anappointment or election, (ii) the commence­ment of any such case or proceedingagainst such party, or another seeking such an appoint­ment or election, or thefiling against a party of an application for a protective decree under theprovisions of the Securities Investor Protection Act of 1970, which (A) is consentedto or not timely contested by such party, (B) results in the entry of an orderfor relief, such an appoint­ment or election, the issuance of such a protectivedecree or the entry of an order having a sim­ilar effect, or (C) is notdismissed within 15 days, (iii) the making by such party of a generalassignment for the benefit of creditors, or (iv) the admission in writing bysuch party of such party’s inability to pay such party’s debts as they becomedue;

 

(b)         “AdditionalPurchased Securities”, Securities provided by Seller to Buyer pursuant toParagraph 4 (a) hereof,

 

(c)          “Buyer’sMargin Amount”, with respect to any Transaction as of any date, the amountobtained by application of the Buyer’s Margin Percentage to the RepurchasePrice for such Transaction as of such date;

 

(d)         “Buyer’sMargin Percentage”, with respect to any Transaction as of any date, apercentage (which may be equal to the Seller’s Margin Percentage) agreed to byBuyer and Seller or, in the absence of any such agreement, the percentageobtained by

 

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dividing the Market Valueof the Purchased Securities on the Purchase Date by the Purchase Price on thePurchase Date for such Transaction;

 

(e)          “Confirmation”,the meaning specified in Paragraph 3(b) hereof;

 

(f)            “Income”,with respect to any Security at any time, any principal thereof and allinterest, dividends or other distributions thereon;

 

(g)         “MarginDeficit”, the meaning specified in Paragraph 4(a) hereof;

 

(h)         “MarginExcess”, the meaning specified in Paragraph 4(b) hereof;

 

(i)             “MarginNotice Deadline”, the time agreed to by the parties in the relevantConfirmation, Annex I hereto or otherwise as the deadline for giving noticerequiring same-day satisfac­tion of margin maintenance obligations asprovided in Paragraph 4 hereof (or, in the absence of any such agreement, thedeadline for such purposes established in accordance with market practice);

 

(j)             “MarketValue”, with respect to any Securities as of any date, the price for suchSecurities on such date obtained from a generally recognized source agreed toby the parties or the most recent closing bid quotation from such a source,plus accrued Income to the extent not included therein (other than any Incomecredited or transferred to, or applied to the obligations of, Seller pursuantto Paragraph 5 hereof) as of such date (unless contrary to market practice forsuch Securities);

 

(k)          “PriceDifferential”, with respect to any Transaction as of any date, the aggregateamount obtained by daily application of the Pricing Rate for such Transactionto the Purchase Price for such Transaction on a 360 day per year basis for theactual number of days during the period commencing on (and including) thePurchase Date for such Transaction and ending on (but excluding) the date ofdetermination (reduced by any amount of such Price Differential previously paidby Seller to Buyer with respect to such Transaction);

 

(1)          “PricingRate”, the per annum percentage rate for determination of the Price Differential;

 

(m)       “PrimeRate”, the prime rate of U.S. commercial banks as published in The Wall StreetJournal (or, if more than one such rate is published, the average of suchrates);

 

(n)         “PurchaseDate”, the date on which Purchased Securities are to be transferred by Sellerto Buyer;

 

(o)         “PurchasePrice”, (i) on the Purchase Date, the price at which Purchased Securities aretransferred by Seller to Buyer, and (ii) thereafter, except where Buyer andSeller agree oth­erwise, such price increased by the amount of any cashtransferred by Buyer to Seller pur­suant to Paragraph 4(b) hereof and decreasedby the amount of any cash transferred by Seller to Buyer pursuant to Paragraph4(a) hereof or applied to reduce Seller’s obligations under clause (ii) of Paragraph5 hereof;

 

(p)         “PurchasedSecurities”, the Securities transferred by Seller to Buyer in a Transactionhere­under, and any Securities substituted therefor in accordance withParagraph 9 hereof. The term “Purchased Securities” with respect to any Transactionat any time

 

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also shall includeAdditional Purchased Securities delivered pursuant to Paragraph 4(a) hereof andshall exclude Securities returned pursuant to Paragraph 4(b) hereof;

 

(q)         “RepurchaseDate”, the date on which Seller is to repurchase the Purchased Securities fromBuyer, including any date determined by application of the provisions ofParagraph 3(c) or 11 hereof;

 

(r)            “RepurchasePrice”, the price at which Purchased Securities are to be transferred fromBuyer to Seller upon termination of a Transaction, which will be determined ineach case (including Transactions terminable upon demand) as the sum of thePurchase Price and the Price Differential as of the date of such determination;

 

(s)          “Seller’sMargin Amount”, with respect to any Transaction as of any date, the amountobtained by application of the Seller’s Margin Percentage to the RepurchasePrice for such Transaction as of such date;

 

(t)            “Seller’sMargin Percentage”, with respect to any Transaction as of any date, apercentage (which may be equal to the Buyer’s Margin Percentage) agreed to byBuyer and Seller or, in the absence of any such agreement, the percentageobtained by dividing the Market Value of the Purchased Securities on thePurchase Date by the Purchase Price on the Purchase Date for such Transaction.

 

**3.****              Initiation;Confirmation; Termination**

(a)          Anagreement to enter into a Transaction may be made orally or in writing at theinitia­tion of either Buyer or Seller. On the Purchase Date for theTransaction, the Purchased Securities shall be transferred to Buyer or itsagent against the transfer of the Purchase Price to an account of Seller.

 

(b)         Uponagreeing to enter into a Transaction hereunder, Buyer or Seller (or both), asshall be agreed, shall promptly deliver to the other party a writtenconfirmation of each Transaction (a “Confirmation”). The Confirmation shalldescribe the Purchased Securities (including CUSIP number, if any), identifyBuyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price,(iii) the Repurchase Date, unless the Transaction is to be terminable ondemand, (iv) the Pricing Rate or Repurchase Price applicable to theTransaction, and (v) any additional terms or conditions of the Transaction notinconsistent with this Agreement. The Confirmation, together with thisAgreement, shall constitute conclusive evidence of the terms agreed betweenBuyer and Seller with respect to the Transaction to which the Confirmationrelates, unless with respect to the Confirmation specific objection is madepromptly after receipt thereof. In the event of any conflict between the termsof such Confirmation and this Agreement, this Agreement shall prevail.

 

(c)          Inthe case of Transactions terminable upon demand, such demand shall be made byBuyer or Seller, no later than such time as is customary in accordance withmarket prac­tice, by telephone or otherwise on or prior to the business day onwhich such termination will be effective. On the date specified in such demand,or on the date fixed for termina­tion in the case of Transactions having afixed term, termination of the Transaction will be effected by transfer toSeller or its agent of the Purchased Securities and any Income in respectthereof received by Buyer (and not previously credited or transferred to, orapplied to the obligations of, Seller pursuant to Paragraph 5 hereof) againstthe transfer of the Repurchase Price to an account of Buyer.

 

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**4.****              MarginMaintenance**

(a)          Ifat any time the aggregate Market Value of all Purchased Securities subject toall Transactions in which a particular party hereto is acting as Buyer is lessthan the aggre­gate Buyer’s Margin Amount for all such Transactions (a “MarginDeficit”), then Buyer may by notice to Seller require Seller in suchTransactions, at Seller’s option, to transfer to Buyer cash or additionalSecurities reasonably acceptable to Buyer (“Additional Purchased Securities”),so that the cash and aggregate Market Value of the Purchased Securities,including any such Additional Purchased Securities, will thereupon equal orexceed such aggregate Buyer’s Margin Amount (decreased by the amount of anyMargin Deficit as of such date arising from any Transactions in which suchBuyer is acting as Seller).

 

(b)         Ifat any time the aggregate Market Value of all Purchased Securities subject toall Transactions in which a particular party hereto is acting as Seller exceedsthe aggregate Seller’s Margin Amount for all such Transactions at such time (a “MarginExcess”), then Seller may by notice to Buyer require Buyer in suchTransactions, at Buyer’s option, to transfer cash or Purchased Securities toSeller, so that the aggregate Market Value of the Purchased Securities, afterdeduction of any such cash or any Purchased Securities so transferred, willthereupon not exceed such aggregate Seller’s Margin Amount (increased by theamount of any Margin Excess as of such date arising from any Transactions inwhich such Seller is acting as Buyer).

 

(c)          Ifany notice is given by Buyer or Seller under subparagraph (a) or (b) of thisParagraph at or before the Margin Notice Deadline on any business day, theparty receiving such notice shall transfer cash or Additional Purchased Securitiesas provided in such subpara­graph no later than the close of business in therelevant market on such day. If any such notice is given after the MarginNotice Deadline, the party receiving such notice shall transfer such cash orSecurities no later than the close of business in the relevant market on thenext business day following such notice.

 

(d)         Anycash transferred pursuant to this Paragraph shall be attributed to suchTransactions as shall be agreed upon by Buyer and Seller.

 

(e)          Sellerand Buyer may agree, with respect to any or all Transactions hereunder, thatthe respective rights of Buyer or Seller (or both) under subparagraphs (a) and(b) of this Paragraph may be exercised only where a Margin Deficit or MarginExcess, as the case may be, exceeds a specified dollar amount or a specifiedpercentage of the Repurchase Prices for such Transactions (which amount orpercentage shall be agreed to by Buyer and Seller prior to entering into anysuch Transactions).

 

(f)            Sellerand Buyer may agree, with respect to any or all Transactions hereunder, thatthe respective rights of Buyer and Seller under subparagraphs (a) and (b) ofthis Paragraph to require the elimination of a Margin Deficit or a MarginExcess, as the case may be, may be exercised whenever such a Margin Deficit orMargin Excess exists with respect to any single Transaction hereunder(calculated without regard to any other Transaction outstanding under thisAgreement).

 

**5.****              IncomePayments**

Seller shall be entitledto receive an amount equal to all Income paid or distributed on or in respectof the Securities that is not otherwise received by Seller, to the full extentit would be so entitled if the Securities had not been sold to Buyer. Buyershall, as the parties may agree with respect to any Transaction (or, in theabsence of any such agreement, as Buyer shall rea­sonably determine in itsdiscretion), on the date such Income is paid or distributed

 

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either (i) transfer to orcredit to the account of Seller such Income with respect to any PurchasedSecurities subject to such Transaction or (ii) with respect to Income paid incash, apply the Income payment or payments to reduce the amount, if any, to betransferred to Buyer by Seller upon termination of such Transaction. Buyershall not be obligated to take any action pursuant to the preceding sentence(A) to the extent that such action would result in the cre­ation of a MarginDeficit, unless prior thereto or simultaneously therewith Seller transfers toBuyer cash or Additional Purchased Securities sufficient to eliminate suchMargin Deficit, or (B) if an Event of Default with respect to Seller hasoccurred and is then continuing at the time such Income is paid or distributed.

 

**6.****              SecurityInterest**

Although the partiesintend that all Transactions hereunder be sales and purchases and not loans, inthe event any such Transactions are deemed to be loans, Seller shall be deemedto have pledged to Buyer as security for the performance by Seller of its obligationsunder each such Transaction, and shall be deemed to have granted to Buyer asecurity interest in, all of the Purchased Securities with respect to allTransactions hereunder and all Income thereon and other proceeds thereof.

 

**7.****              Paymentand Transfer**

Unless otherwise mutuallyagreed, all transfers of funds hereunder shall be in immediately availablefunds. All Securities transferred by one party hereto to the other party (i)shall be in suitable form for transfer or shall be accompanied by duly executedinstruments of transfer or assignment in blank and such other documentation asthe party receiving possession may reasonably request, (ii) shall betransferred on the book-entry system of a Federal Reserve Bank, or (iii)shall be transferred by any other method mutually acceptable to Seller andBuyer.

 

**8.****              Segregationof Purchased Securities**

To the extent required byapplicable law, all Purchased Securities in the possession of Seller shall besegregated from other securities in its possession and shall be identified assubject to this Agreement. Segregation may be accomplished by appropriateidentification on the books and records of the holder, including a financial orsecurities intermediary or a clearing corpo­ration. All of Seller’s interest inthe Purchased Securities shall pass to Buyer on the Purchase Date and, unlessotherwise agreed by Buyer and Seller, nothing in this Agreement shall pre­cludeBuyer from engaging in repurchase transactions with the Purchased Securities orother­wise selling, transferring, pledging or hypothecating the PurchasedSecurities, but no such transaction shall relieve Buyer of its obligations totransfer Purchased Securities to Seller pursuant to Paragraph 3, 4 or 11hereof, or of Buyer’s obligation to credit or pay Income to, or apply Income tothe obligations of, Seller pursuant to Paragraph 5 hereof.

 

**RequiredDisclosure for Transactions in Which the Seller Retains Custody of thePurchased Securities**

Seller is not permittedto substitute other securities for those subject to this Agreement andtherefore must keep Buyer’s securities segregated at all times unless in thisAgreement Buyer grants Seller the right to substitute other securities. IfBuyer grants the right to substitute, this means that Buyer’s securities will likelybe commingled with Seller’s own securities during the trading day. Buyer isadvised that during any trading day that Buyer’s securities are commingled withSeller’s securities, they [will]* [may]** be subject to liens granted by Sellerto [its clearing bank]* [third parties]” and may be used by Seller fordeliveries on other securities transactions. Whenever the securities arecommingled, Seller’s ability to resegregate substitute

 

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securities for Buyer willbe subject to Seller’s ability to satisfy [the clear­ing] * [any]** lien or toobtain substitute securities.

 

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| *  |   | Language to be used  under 17 C.F.R, §403.4 (e) if Seller is a government securities broker or  dealer other than a financial institution. |
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| ** |   | Language to be used  under 17 C.F.R. §403.5 (d) if Seller is a financial institution.                                                      |

 

**9.****              Substitution**

(a)          Sellermay, subject to agreement with and acceptance by Buyer, substitute otherSecurities for any Purchased Securities. Such substitution shall be made bytransfer to Buyer of such other Securities and transfer to Seller of suchPurchased Securities. After substitution, the substituted Securities shall bedeemed to be Purchased Securities.

 

(b)         InTransactions in which Seller retains custody of Purchased Securities, theparties expressly agree that Buyer shall be deemed, for purposes ofsubparagraph (a) of this Paragraph, to have agreed to and accepted in thisAgreement substitution by Seller of other Securities for Purchased Securities;provided, however, that such other Securities shall have a Market Value atleast equal to the Market Value of the Purchased Securities for which they aresubstituted.

 

**10.****       Representations**

Each of Buyer and Sellerrepresents and warrants to the other that (i) it is duly authorized to executeand deliver this Agreement, to enter into Transactions contemplated hereunderand to perform its obligations hereunder and has taken all necessary action toauthorize such exe­cution, delivery and performance, (ii) it will engage insuch Transactions as principal (or, if agreed in writing, in the form of anannex hereto or otherwise, in advance of any Transaction by the other partyhereto, as agent for a disclosed principal), (iii) the person signing thisAgreement on its behalf is duly authorized to do so on its behalf (or on behalfof any such disclosed principal), (iv) it has obtained all authorizations ofany governmental body required in connection with this Agreement and theTransactions hereunder and such autho­rizations are in full force and effectand (v) the execution, delivery and performance of this Agreement and theTransactions hereunder will not violate any law, ordinance, charter, by­law orrule applicable to it or any agreement by which it is bound or by which any ofits assets are affected. On the Purchase Date for any Transaction Buyer andSeller shall each be deemed to repeat all the foregoing representations made byit.

 

**11.****       Eventsof Default**

In the event that (i)Seller fails to transfer or Buyer fails to purchase Purchased Securities uponthe applicable Purchase Date, (ii) Seller fails to repurchase or Buyer fails totransfer Purchased Securities upon the applicable Repurchase Date, (iii) Selleror Buyer fails to com­ply with Paragraph 4 hereof, (iv) Buyer fails, after onebusiness day’s notice, to comply with Paragraph 5 hereof, (v) an Act ofInsolvency occurs with respect to Seller or Buyer, (vi) any representation madeby Seller or Buyer shall have been incorrect or untrue in any material respectwhen made or repeated or deemed to have been made or repeated, or (vii) Selleror Buyer shall admit to the other its inability to, or its intention not to,perform any of its oblig­ations hereunder (each an “Event of Default”):

 

(a)          Thenondefaulting party may, at its option (which option shall be deemed to havebeen exercised immediately upon the occurrence of an Act of Insolvency),declare an Event of Default to have occurred hereunder and, upon the exerciseor deemed exercise of

 

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such option, theRepurchase Date for each Transaction hereunder shall, if it has not alreadyoccurred, be deemed immediately to occur (except that, in the event that thePurchase Date for any Transaction has not yet occurred as of the date of suchexercise or deemed exercise, such Transaction shall be deemed immediatelycanceled). The nondefaulting party shall (except upon the occurrence of an Actof Insolvency) give notice to the defaulting party of the exercise of suchoption as promptly as practicable.

 

(b)         Inall Transactions in which the defaulting party is acting as Seller, if thenondefaulting party exercises or is deemed to have exercised the optionreferred to in subparagraph (a) of this Paragraph, (i) the defaulting party’sobligations in such Transactions to repurchase all Purchased Securities, at theRepurchase Price therefor on the Repurchase Date deter­mined in accordance withsubparagraph (a) of this Paragraph, shall thereupon become immediately due andpayable, (ii) all Income paid after such exercise or deemed exercise shall beretained by the nondefaulting party and applied to the aggregate unpaidRepurchase Prices and any other amounts owing by the defaulting partyhereunder, and (iii) the defaulting party shall immediately deliver to thenondefaulting party any Purchased Securities subject to such Transactions thenin the defaulting party’s posses­sion or control.

 

(c)          Inall Transactions in which the defaulting party is acting as Buyer, upon tenderby the nondefaulting party of payment of the aggregate Repurchase Prices forall such Transactions, all right, title and interest in and entitlement to allPurchased Securities subject to such Transactions shall be deemed transferredto the nondefaulting party, and the defaulting party shall deliver all suchPurchased Securities to the nondefaulting party.

 

(d)         Ifthe nondefaulting party exercises or is deemed to have exercised the optionreferred to in subparagraph (a) of this Paragraph, the nondefaulting party,without prior notice to the defaulting party, may:

 

(i)             asto Transactions in which the defaulting party is acting as Seller, (A)immediately sell, in a recognized market (or otherwise in a commerciallyreasonable manner) at such price or prices as the nondefaulting party mayreasonably deem satisfactory, any or all Purchased Securities subject to suchTransactions and apply the proceeds thereof to the aggregate unpaid RepurchasePrices and any other amounts owing by the defaulting party hereunder or (B) inits sole discretion elect, in lieu of selling all or a portion of suchPurchased Securities, to give the defaulting party credit for such PurchasedSecurities in an amount equal to the price therefor on such date, obtained froma generally recognized source or the most recent closing bid quotation fromsuch a source, against the aggregate unpaid Repurchase Prices and any otheramounts owing by the defaulting party hereunder; and

 

(ii)          asto Transactions in which the defaulting party is acting as Buyer, (A)immediately purchase, in a recognized market (or otherwise in a commerciallyreasonable man­ner) at such price or prices as the nondefaulting party mayreasonably deem satisfac­tory, securities (“Replacement Securities”) of thesame class and amount as any Purchased Securities that are not delivered by thedefaulting party to the nondefault­ing party as required hereunder or (B) inits sole discretion elect, in lieu of purchas­ing Replacement Securities, to bedeemed to have purchased Replacement Securities at the price therefor on suchdate, obtained from a generally recognized source or the most recent closingoffer quotation from such a source.

 

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Unless otherwise providedin Annex 1, the parties acknowledge and agree that (1) the Securities subjectto any Transaction hereunder are instruments traded in a recognized market, (2)in the absence of a generally recognized source for prices or bid or offer quo­tationsfor any Security, the nondefaulting party may establish the source therefor inits sole discretion and (3) all prices, bids and offers shall be determinedtogether with accrued Income (except to the extent contrary to market practicewith respect to the rel­evant Securities).

 

(e)          Asto Transactions in which the defaulting party is acting as Buyer, thedefaulting party shall be liable to the nondefaulting party for any excess ofthe price paid (or deemed paid) by the nondefaulting party for ReplacementSecurities over the Repurchase Price for the Purchased Securities replacedthereby and for any amounts payable by the defaulting party under Paragraph 5hereof or otherwise hereunder.

 

(f)            Forpurposes of this Paragraph 11, the Repurchase Price for each Transactionhereunder in respect of which the defaulting party is acting as Buyer shall notincrease above the amount of such Repurchase Price for such Transactiondetermined as of the date of the exercise or deemed exercise by thenondefaulting party of the option referred to in sub­paragraph (a) of thisParagraph.

 

(g)         Thedefaulting party shall be liable to the nondefaulting party for (i) the amountof all reasonable legal or other expenses incurred by the nondefaulting partyin connection with or as a result of an Event of Default, (ii) damages in anamount equal to the cost (including all fees, expenses and commissions) ofentering into replacement transactions and entering into or terminating hedgetransactions in connection with or as a result of an Event of Default, and(iii) any other loss, damage, cost or expense directly arising or resultingfrom the occurrence of an Event of Default in respect of a Transaction.

 

(h)         Tothe extent permitted by applicable law, the defaulting party shall be liable tothe non­defaulting party for interest on any amounts owing by the defaultingparty hereunder, from the date the defaulting party becomes liable for suchamounts hereunder until such amounts are (i) paid in full by the defaultingparty or (ii) satisfied in full by the exercise of the nondefaulting party’srights hereunder. Interest on any sum payable by the default­ing party to thenondefaulting party under this Paragraph 11(h) shall be at a rate equal to thegreater of the Pricing Rate for the relevant Transaction or the Prime Rate.

 

(i)             Thenondefaulting party shall have, in addition to its rights hereunder, any rightsother­wise available to it under any other agreement or applicable law.

 

**12.****       SingleAgreement**

Buyer and Selleracknowledge that, and have entered hereinto and will enter into eachTransaction hereunder in consideration of and in reliance upon the fact that,all Transactions hereunder constitute a single business and contractualrelationship and have been made in consideration of each other. Accordingly,each of Buyer and Seller agrees (i) to perform all of its obligations inrespect of each Transaction hereunder, and that a default in the perfor­manceof any such obligations shall constitute a default by it in respect of allTransactions hereunder, (ii) that each of them shall be entitled to set offclaims and apply property held by them in respect of any Transaction againstobligations owing to them in respect of any other Transactions hereunder and(iii) that payments, deliveries and other transfers made by either of them inrespect of any Transaction shall be deemed to have

 

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been made inconsideration of payments, deliveries and other transfers in respect of anyother Transactions hereunder, and the obligations to make any such payments,deliveries and other transfers may be applied against each other and netted.

 

**13.****       Noticesand Other Communications**

Any and all notices,statements, demands or other communications hereunder may be given by a partyto the other by mail, facsimile, telegraph, messenger or otherwise to theaddress specified in Annex 11 hereto, or so sent to such party at any otherplace specified in a notice of change of address hereafter received by theother. All notices, demands and requests hereun­der may be made orally, to beconfirmed promptly in writing, or by other communication as specified in thepreceding sentence.

 

**14.****       EntireAgreement; Severability**

This Agreementshall supersede any existing agreements between the parties containing generalterms and conditions for repurchase transactions. Each provision and agreementherein shall be treated as separate and independent from any other provision oragreement herein and shall be enforceable notwithstanding the unenforceabilityof any such other provision or agreement.

 

**15.****       Non-assignability;Termination**

(a)          The rightsand obligations of the parties under this Agreement and under any Transactionshall not be assigned by either party without the prior written consent of theother party, and any such assignment without the prior written consent of theother party shall be null and void. Subject to the foregoing, this Agreementand any Transactions shall be binding upon and shall inure to the benefit ofthe parties and their respective successors and assigns. This Agreement may beterminated by either party upon giving written notice to the other, except thatthis Agreement shall, notwithstanding such notice, remain applicable to anyTransactions then outstanding.

 

(b)         Subparagraph(a) of this Paragraph 15 shall not preclude a party from assigning, charging orotherwise dealing with all or any part of its interest in any sum payable to itunder Paragraph 11 hereof.

 

**16.****       GoverningLaw**

This Agreementshall be governed by the laws of the State of New York without giving effect tothe conflict of law principles thereof.

 

**17.****       NoWaivers, Etc.**

No express orimplied waiver of any Event of Default by either party shall constitute awaiver of any other Event of Default and no exercise of any remedy hereunder byany party shall constitute a waiver of its right to exercise any other remedyhereunder. No modification or waiver of any provision of this Agreement and noconsent by any party to a departure herefrom shall be effective unless anduntil such shall be in writing and duly executed by both of the parties hereto.Without limitation on an of the foregoing, the failure to give a noticepursuant to Paragraph 4(a) or 4(b) hereof will not constitute a waiver of anyright to do so at a later date.

 

**18.****       Useof Employee Plan Assets**

(a)          Ifassets of an employee benefit plan subject to any provision of the EmployeeRetirement Income Security Act of 1974 (“ERISA) are intended to be used byeither party hereto (the “Plan Party”) in a Transaction, the Plan Party shallso notify the other party prior to the Transaction. The Plan Party shallrepresent in writing to the other party that the Transaction does notconstitute a prohibited transaction under ERISA or

 

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is otherwiseexempt therefrom, and the other party may proceed in reliance thereon but shallnot be required so to proceed.

 

(b)         Subjectto the last sentence of subparagraph (a) of this Paragraph, any suchTransaction shall proceed only if Seller furnishes or has furnished to Buyerits most recent available audited statement of its financial condition and itsmost recent subsequent unaudited statement of its financial condition.

 

(c)          Byentering into a Transaction pursuant to this Paragraph, Seller shall be deemed(i) to represent to Buyer that since the date of Seller’s latest such financialstatements, there has been no material adverse change in Seller’s financialcondition which Seller has not dis­closed to Buyer, and (ii) to agree toprovide Buyer with future audited and unaudited statements of its financial conditionas they are issued, so long as it is a Seller in any out­standing Transactioninvolving a Plan Party.

 

**19.****       Intent**

(a)          Theparties recognize that each Transaction is a “repurchase agreement” as thatterm is defined in Section 101 of Title 11 of the United States Code, asamended (except insofar as the type of Securities subject to such Transactionor the term of such Transaction would render such definition inapplicable), anda “securities contract” as that term is defined in Section 741 of Title 11 ofthe United States Code, as amended (except insofar as the type of assetssubject to such Transaction would render such definition inapplica­ble).

 

(b)         Itis understood that either party’s right to liquidate Securities delivered to itin connec­tion with Transactions hereunder or to exercise any other remediespursuant to Paragraph 11 hereof is a contractual right to liquidate suchTransaction as described in Sections 555 and 559 of Title 11 of the UnitedStates Code, as amended.

 

(c)          Theparties agree and acknowledge that if a party hereto is an “insured depositoryinsti­tution,” as such term is defined in the Federal Deposit Insurance Act, asamended (“FDIA”), then each Transaction hereunder is a “qualified financialcontract,” as that term is defined in FDIA and any rules, orders or policystatements thereunder (except insofar as the type of assets subject to suchTransaction would render such definition inapplica­ble).

 

(d)         Itis understood that this Agreement constitutes a “netting contract” as defined inand subject to Title IV of the Federal Deposit Insurance CorporationImprovement Act of 1991 (“FDICIA”) and each payment entitlement and paymentobligation under any Transaction hereunder shall constitute a “coveredcontractual payment entitlement” or 11 “covered contractual payment obligation”,respectively, as defined in and subject to FDI­CIA (except insofar as one orboth of the parties is not a “financial institution” as that term is defined inFDICIA).

 

**20.****       DisclosureRelating to Certain Federal Protections**

The partiesacknowledge that they have been advised that:

 

(a)          inthe case of Transactions in which one of the parties is a broker or dealerregistered with the Securities and Exchange Commission (“SEC”) under Section 15of the Securities Exchange Act of 1934 (“1934 Act”), the Securities InvestorProtection Corporation has taken the position that the provisions of theSecurities Investor Protection Act of 1970 (“SIPA”) do not protect the otherparty with respect to any Transaction hereunder;

 

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(b)         inthe case of Transactions in which one of the parties is a government securitiesbroker or a government securities dealer registered with the SEC under Section15C of the 1934 Act, SIPA will not provide protection to the other party withrespect to any Transaction hereunder; and

 

(c)          inthe case of Transactions in which one of the parties is a financialinstitution, funds held by the financial institution pursuant to a Transactionhereunder are not a deposit and therefore are not insured by the FederalDeposit Insurance Corporation or the National Credit Union Share InsuranceFund, as applicable.

 

 

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** **

**EXECUTIONCOPY**

 
|   | **GRAMERCY  WAREHOUSE FUNDING II LLC,**   |
|--------|-------------------------------------------|
|   | a Delaware limited  liability company     |
|   |                                      |
|   |                                      |
|   | By:                                       | GKK CAPITAL LP, |
|   |                                      | a Delaware limited  partnership, |
|   |                                      | its sole member and  manager |
|   |                                      |   |
|   |                                      | By: | GRAMERCY CAPITAL CORP., |
|   |                                      |   | a Maryland corporation,  its general partner |
|   |                                      |   |   |
|   |                                      |   |
|   |                                      |   | By: |   |   |
|   |                                      |   |   | Name: Hugh Hall |
|   |                                      |   |   | Its: Chief Operating  Officer |
|   |                                      |   |
|   |                                      |   |
|   | **GOLDMAN  SACHS MORTGAGE COMPANY**,      |
|   | a New York limited  liability partnership |
|   |                                      |   |
|   | By:                                       | Goldman Sachs Real Estate Funding Corp**.**, |
|   |                                      | its general partner |
|   |                                      |   |
|   |                                      |   |
|   |                                      | By: |   |   |
|   |                                      |   | Name: |
|   |                                      |   | Title: |
|   |                                      |   | Date: |
|        |                                           |  |  |  |  |  |  |

 

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