(I) EXCEPT BY AN INSTRUMENT
IN WRITING SIGNED BY BOTH OF THE PARTIES HERETO OR, IN THE CASE OF A WAIVER, BY
THE PARTY WAIVING COMPLIANCE AND (II) IN EACH CASE, IN COMPLIANCE WITH
SECTION 15.1(F) OF THE INDENTURE, INCLUDING WITH RESPECT TO SATISFACTION OF THE
RATING AGENCY CONDITION.
THIS AGREEMENT (INCLUDING ALL EXHIBITS ATTACHED
HERETO) MAY BE MODIFIED WITHOUT THE PRIOR WRITTEN CONSENT OF THE TRUSTEE, ANY
HEDGE COUNTERPARTY OR THE HOLDERS OF NOTES TO CORRECT ANY INCONSISTENCY OR CURE
ANY AMBIGUITY OR MISTAKE.
ANY OTHER AMENDMENT OF THIS AGREEMENT (INCLUDING ALL
EXHIBITS ATTACHED HERETO) SHALL REQUIRE THE PRIOR WRITTEN CONSENT OF THE TRUSTEE
AND EACH HEDGE COUNTERPARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD
AND IS SUBJECT TO THE SATISFACTION OF THE RATING AGENCY CONDITION.
(E)
THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AND AGREEMENT
BETWEEN THE PARTIES HERETO AND SUPERSEDES ALL OTHER PRIOR AND CONTEMPORANEOUS
UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR ORAL, BETWEEN THE PARTIES
HERETO CONCERNING THIS SUBJECT MATTER (OTHER THAN THE INDENTURE).
27
(F)
THE COLLATERAL MANAGER HEREBY AGREES AND CONSENTS TO THE TERMS OF
SECTION 15.1(F) OF THE INDENTURE APPLICABLE TO THE COLLATERAL MANAGER AND SHALL
PERFORM ANY PROVISIONS OF THE INDENTURE MADE APPLICABLE TO THE COLLATERAL
MANAGER BY THE INDENTURE AS REQUIRED BY SECTION 15.1(F) OF THE INDENTURE.
(G)
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH
OF WHICH SO EXECUTED SHALL BE DEEMED AN ORIGINAL, BUT ALL SUCH COUNTERPARTS
SHALL TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
(H)
THE WORDS "INCLUDE," "INCLUDES" AND "INCLUDING" SHALL BE DEEMED TO
BE FOLLOWED BY THE PHRASE "BUT NOT LIMITED TO."
(I)
SUBJECT TO THE LAST SENTENCE OF THE THIRD TO LAST PARAGRAPH OF
SECTION 1 HEREOF, IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT
AND THE INDENTURE, INCLUDING WITH RESPECT TO THE OBLIGATIONS OF THE COLLATERAL
MANAGER HEREUNDER AND THEREUNDER, THE TERMS OF THIS AGREEMENT SHALL BE
CONTROLLING.
(J)
NO FAILURE OR DELAY ON THE PART OF ANY PARTY HERETO TO EXERCISE
ANY RIGHT OR REMEDY UNDER THIS AGREEMENT SHALL OPERATE AS A WAIVER THEREOF, AND
NO WAIVER SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY THE PARTY
GRANTING SUCH WAIVER.
(K)
THIS AGREEMENT IS MADE SOLELY FOR THE BENEFIT OF THE ISSUER, THE
COLLATERAL MANAGER AND THE TRUSTEE, ON BEHALF OF THE NOTEHOLDERS, THE HOLDERS OF
PREFERRED SHARES AND EACH HEDGE COUNTERPARTY, THEIR SUCCESSORS AND ASSIGNS, AND
NO OTHER PERSON SHALL HAVE ANY RIGHT, BENEFIT OR INTEREST UNDER OR BECAUSE OF
THIS AGREEMENT.
(L)
THE COLLATERAL MANAGER HEREBY IRREVOCABLY WAIVES ANY RIGHTS IT
MAY HAVE TO SET OFF AGAINST THE ASSETS.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
(as a deed in the case of the Issuer) by their respective authorized
representatives as of the day and year first above written.
Executed as a Deed
GRAMERCY REAL ESTATE CDO 2007-1,
LTD., as Issuer
By:
/s/ Robert R. Foley
Name: Robert R. Foley
Title: Chief Financial Officer