EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 3, 2005, between German American Capital Corporation, as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "GACC") and GMAC Commercial
Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser desires to purchase, subject to the
terms and conditions set forth below, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"). Certain other multifamily and
commercial mortgage loans (the "Other Mortgage Loans") will be purchased by the
Purchaser from (i) GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of June 3, 2005, between the Purchaser and GMACCM and (ii) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. ("MSMC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of June 3, 2005,
between the Purchaser and MSMC. The Mortgage Loan Seller, GMACCM and MSMC are
collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together with
the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed by the
Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of June 1, 2005
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such capacity, the
"Master Servicer") and serviced whole loan paying agent, GMAC Commercial
Mortgage Corporation, as special servicer (in such capacity, the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent. Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Pooling and Servicing Agreement
as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-1A, Class A-2, Class
A-3, Class A-4, Class A-5, Class X-2, Class A-M, Class A-J, Class B, Class C and
Class D Certificates to Deutsche Bank Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and GMAC Commercial Holding Capital Markets Corp. (together, the
"Underwriters"), pursuant to an underwriting agreement dated the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the Class X-1,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class Q Certificates to Deutsche Bank Securities Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (in such capacity, each an "Initial
Purchaser"), pursuant to a certificate purchase agreement, dated the date hereof
(the "Certificate Purchase Agreement"). The Purchaser intends to sell the Class
W, Class R-I, Class R-II and Class R-III Certificates to a
Qualified Institutional Buyer. The Class X-1, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
W, Class R-I, Class R-II and Class R-III Certificates are collectively referred
to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on June 16,
2005 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is
the Due Date for such Mortgage Loan in June 2005. As of the close of business on
their respective Cut-off Dates, the Mortgage Loans will have an aggregate
principal balance (the "Aggregate Cut-off Date Balance"), after application of
all payments of principal due thereon on or before such date, whether or not
received, of $482,036,758 subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be determined by the parties
pursuant to an agreed upon term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for such Mortgage Loan, and all
other recoveries of principal and interest collected thereon after such Cut-off
Date. All scheduled payments of principal and interest due thereon on or before
the Cut-off Date for each Mortgage Loan and collected after such Cut-off Date
shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant to
subsection (a) above, the Mortgage Loan Seller acknowledges that the Depositor
has directed the Mortgage Loan Seller, and the Mortgage Loan Seller hereby
agrees, to deliver the Mortgage File (as such term is defined in the Pooling and
Servicing Agreement) to the Trustee, and otherwise comply with the requirements
of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and Servicing Agreement,
provided that whenever the term Mortgage File is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
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(c) The Mortgage Loan Seller's records will reflect the transfer of the
Mortgage Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan Seller shall reasonably cooperate with any examination of
the Mortgage Files and Servicing Files that may be undertaken by or on behalf of
the Purchaser. The fact that the Purchaser has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files and/or
Servicing Files shall not affect the Purchaser's right to pursue any remedy
available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loans, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized, validly
existing, and in good standing under the laws of the State of Maryland, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage Loan
Seller, and the performance and compliance with the terms of this Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan Seller's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the Mortgage
Loan Seller to carry out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other
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laws affecting the enforcement of creditors' rights generally, (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage Loan
Seller has received service of process or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller the outcome
of which, in the Mortgage Loan Seller's good faith and reasonable judgment,
could reasonably be expected to prohibit the Mortgage Loan Seller from
entering into this Agreement or materially and adversely affect the ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the other
transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor anyone acting on its
behalf has (A) offered, pledged, sold, disposed of or otherwise transferred
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person
in any manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any state securities law relating to or in
connection with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities law of
any Certificate not otherwise intended to be a Registered Certificate. In
addition, the Mortgage Loan Seller will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any of the Certificates or interests
therein. For purposes of this paragraph 4(b)(viii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing
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or, upon issuance, that would have evidenced an interest in the Mortgage
Loans or the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set
forth between pages A-22 and A-23 inclusive of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans (other than the General Motors Building Whole Loan, the ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, the Loews Miami Beach Whole Loan and the
Wellpoint Office Tower Whole Loan (as defined in the Prospectus
Supplement)) and the Mortgaged Properties related thereto and/or the
Mortgage Loan Seller and does not represent a restatement or aggregation of
the information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9) under
the headings "Summary of Series 2005-C1 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged Properties," "--Property
Types," "--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors," and "Description
of the Mortgage Pool" or set forth on Annex A and/or Annex B to the
Prospectus Supplement and (to the extent it contains information consistent
with that on such Annex A) set forth on the Diskette, does not contain any
untrue statement of a material fact or (in the case of the Memorandum, when
read together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Insofar as it relates to the
General Motors Building Whole Loan, the ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Whole Loan,
the Loews Miami Beach Whole Loan and the Wellpoint Office Tower Whole Loan
(as defined in the Prospectus Supplement) and the Mortgaged Properties
related thereto and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the Prospectus
Supplement and the Memorandum (as defined in Section 9) under the headings
"Summary of Series 2005-C1 Transaction--The Mortgage Pool," "--Geographic -
Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors," "Description of
the Mortgage Pool," "Servicing of the Mortgage Loans," "The Pooling and
Servicing Agreement," and/or "Description of the Certificates" or set forth
on Annex A and/or Annex B to the Prospectus Supplement and (to the extent
it contains information consistent with that on such Annex A) set forth on
the Diskette, does not contain any untrue statement of a material fact or
(in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors)
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the consummation by the
Mortgage Loan Seller of any transaction contemplated hereby,
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other than (1) the filing or recording of financing statements, instruments
of assignment and other similar documents necessary in connection with
Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, (2)
such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained or made and (3) where the lack of
such consent, approval, authorization, qualification, registration, filing
or notice would not have a material adverse effect on the performance by
the Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the interests
of the Purchaser or a breach of any of the representations and warranties
made pursuant to subsection (a) above and set forth in Exhibit B which
materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns
(including, without limitation the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order,
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regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage Loans in respect of any Material
Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing Date,
and the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Mortgage Loan Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of Exhibit C-1
hereto, executed by the Secretary or an assistant secretary of the Mortgage
Loan Seller, and dated the Closing Date, and upon which the Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan Seller
from the Secretary of State for the State of Maryland, dated not earlier
than 30 days prior to the Closing Date;
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(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser, subject to such
reasonable assumptions and qualifications as may be requested by counsel
for the Mortgage Loan Seller and acceptable to counsel for the Purchaser,
dated the Closing Date and addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the issuance
of the Certificates, each of which shall include the Purchaser and each
Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette, any Asset Summary (as
defined hereinafter) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials, ABS Term Sheets or any Asset Summary, when read in
conjunction with the Prospectus and, in the case of the Memorandum, when read
together with the other information specified therein as being available for
review by investors) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans contained in the Loan Detail
or, to the extent consistent therewith, the Diskette or contained in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master Tape; or
(ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding the Mortgage Loan
Seller, the Mortgage Loans (other than the General Motors Building Whole Loan,
the ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, the Loews Miami Beach Whole Loan and the
Wellpoint Office Tower Whole Loan (each as defined in the Prospectus
Supplement)) or the Mortgaged Properties related thereto contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of
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Series 2005-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of
the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors," and/or "Description of the Mortgage Pool" or contained on Annex A
and/or Annex B to the Prospectus Supplement (exclusive of the Loan Detail)
(provided that with respect to information set forth in Annex B specifically
attributed to any appraisal for the related Mortgaged Property, only if such
information is misstated in Annex B), and such information does not represent a
restatement or aggregation of information contained in the Loan Detail; or (iii)
any such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to information regarding the General Motors Building
Whole Loan, the ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, the Loews Miami Beach Whole
Loan and the Wellpoint Office Tower Whole Loan (each as defined in the
Prospectus Supplement) or the Mortgaged Properties related thereto contained in
the Prospectus Supplement or the Memorandum under the headings "Summary of
Series 2005-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of
the Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors," "Description of the Mortgage Pool," "Servicing of the Mortgage Loans,"
"The Pooling and Servicing Agreement," and/or "Description of the Certificates"
or contained on Annex A and/or Annex B to the Prospectus Supplement (exclusive
of the Loan Detail) (provided, that with respect to information set forth in
Annex B specifically attributed to any appraisal for the related Mortgaged
Property, only if such information is misstated in Annex B) and such information
does not represent a restatement or aggregation of information contained in the
Loan Detail; (iv) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Mortgage Loan Seller set forth in or made pursuant to
Section 4; or (v) any untrue statement or alleged untrue statement arises out of
or is with respect to any Asset Summary and such untrue statement or alleged
untrue statement does not relate to information from a Third Party Report,
except to the extent that any such information provided in reliance upon a Third
Party Report is misstated in such Asset Summary; provided, that the
indemnification provided by this Section 9 shall not apply to the extent that
such untrue statement of a material fact or omission of a material fact
necessary to make the statements made, in light of the circumstances in which
they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-123974 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Prospectus"
shall mean the prospectus dated April 26, 2005, as supplemented by the
prospectus supplement dated June 3, 2005 (the "Prospectus Supplement"), relating
to the Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated June 3, 2005, relating to the Non-Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters"); and "ABS Term Sheets"
shall
10
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the Mortgage Loan Seller that was used to create the Term
Sheet Diskette is referred to herein as the "Term Sheet Master Tape." References
herein to ABS Term Sheets or Computational Materials shall include any Term
Sheet Diskette provided therewith. As used herein "Asset Summary" shall mean any
summary of features of such Mortgage Loan and the related Mortgaged Property
prepared by or on behalf of the Mortgage Loan Seller that were delivered to any
investor of the Private Certificates; "Third Party Report" shall mean
appraisals, market studies, environmental, accounting, engineering and other
reports, studies or surveys concerning any of the Mortgage Loans or related
Mortgaged Properties.
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Mortgage Loan Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless: (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
11
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Mortgage Loan Seller agree that it would not be
just and equitable if contribution pursuant to Section 9(c) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(c) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 9 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the indemnifying party. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, GMAC
12
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to German American
Capital Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (212)
751-4864 or to such other address or facsimile number as the Mortgage Loan
Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such covenants and indemnities may
be enforced by or on behalf of any such person or entity against the Mortgage
Loan Seller to the same extent as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Mortgage Loan Seller submitted pursuant hereto, shall remain operative and
in full force and effect and shall survive delivery of the Mortgage Loans by the
Mortgage Loan Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law, which prohibits or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT
13
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Mortgage Loan Seller under this Agreement
shall not be assigned by the Mortgage Loan Seller without the prior written
consent of the Purchaser, except that any person into which the Mortgage Loan
Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner, which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
GERMAN AMERICAN CAPITAL
CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
MORTGAGE LOAN SCHEDULE
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached spreadsheet.
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule B-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material
respects as of the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage
Loans, the Seller had good title to, and was the sole owner of, each
Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each of the Mortgage Loans to or at the direction
of the Purchaser and has validly and effectively conveyed (or caused
to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests
and/or other encumbrances. The sale of the Mortgage Loans to the
Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been
obtained.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in
clauses (B), (C) or (D) of the definition of "Permitted Liens" (as
defined in the Mortgage Loan Purchase Agreement, dated as of June 3,
2005, between the Mortgage Loan Seller and GMAC Commercial Mortgage
Securities, Inc.), individually or in the aggregate, materially
interferes with the security intended to be provided by such Mortgage,
the marketability or current use of the Mortgaged Property, or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt. The related assignment
of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage.
Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid
and, subject to the exceptions set forth in paragraph 13 below,
enforceable
B-1
security interest in favor of the holder thereof in all of the related
Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it
is currently being operated. A Uniform Commercial Code financing
statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to
any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or
actions other than the filing of Uniform Commercial Code financing
statements are required in order to effect such perfection.
5) Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority
lien and first priority security interest in the related Mortgagor's
interest in all leases, sub-leases, licenses or other agreements
pursuant to which any person is entitled to occupy, use or possess all
or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases not included in a
Mortgage has been executed and delivered in favor of the Trustee and
is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in
part, and the related Mortgaged Property has not been released from
the lien of such Mortgage, in whole or in part (except for partial
reconveyances of real property that are set forth on Schedule B-1 to
this Exhibit B), nor has any instrument been executed that would
effect any such satisfaction, cancellation, subordination, rescission
or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms
of any Mortgage Note, Mortgage or Assignment of Leases has been
impaired, waived, altered or modified in any respect, except by
written instruments, all of which are included in the related Mortgage
File.
7) Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject
of an engineering report within 18 months prior to the Cut-off Date as
set forth on
B-2
Schedule B-1 to this Exhibit B, each Mortgaged Property is, to the
Seller's knowledge, free and clear of any damage (or adequate reserves
therefor have been established) that would materially and adversely
affect its value as security for the related Mortgage Loan, and (ii)
with respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an engineering report within 18 months
prior to the Cut-off Date as set forth on Schedule B-1 to this Exhibit
B, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or
adequate reserves therefor have been established) and each Mortgaged
Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related
Mortgage Loan as of the date hereof. The Seller has received no notice
of the commencement of any proceeding for the condemnation of all or
any material portion of any Mortgaged Property. To the Seller's
knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date
of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly
within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance policy referred to herein or that do not materially
and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the
Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's
title insurance policy or a marked-up title insurance commitment (on
which the required premium has been paid) which evidences such title
insurance policy (the "Title Policy") in the original principal amount
of the related Mortgage Loan after all advances of principal. Each
Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid, and no material claims have been made
thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to
the Trustee, such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer. To the
Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged
Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with
respect thereto.
B-3
With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied
with, or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary
and enforceable provisions (subject to the exceptions set forth in
paragraph 13) such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended
to be provided thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (i) a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and (ii)
no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof except in connection with a
trustee's sale after default by the related Mortgagor or in connection
with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B, an environmental site
assessment, or an update of a previous such report, was performed
with respect to each Mortgaged Property in connection with the
origination or the sale of the related Mortgage Loan, a report of
each such assessment (or the most recent assessment with respect
to each Mortgaged Property) (an "Environmental Report") has been
delivered to the Purchaser, and the Seller has no knowledge of
any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws
and regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance
covering such condition was obtained or must be maintained until
the condition is remediated, or (iii) the related Mortgagor was
required either to provide additional security that was deemed to
be sufficient by the originator in light of the circumstances
and/or to establish an operations and maintenance plan. In the
case of each Mortgage Loan set forth on Schedule B-1 to this
Exhibit B, (i) such Mortgage Loan is the subject of a Secured
Creditor Impaired Property Policy, issued by the
B-4
issuer set forth on Schedule B-1 (the "Policy Issuer") and
effective as of the date thereof (the "Environmental Insurance
Policy"), (ii) the Environmental Insurance Policy is in full
force and effect, (iii)(a) a property condition or engineering
report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property, and (b) if such report disclosed
the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security or establish with the lender
a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller, for the remediation of the problem,
and/or (B) agreed in the Mortgage Loan documents to establish an
operations and maintenance plan after the closing of the Mortgage
Loan, (iv) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of any material and
adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer, or (c) an
engineering or other report provided to the Policy Issuer, and
(v) the premium of any Environmental Insurance Policy has been
paid through the maturity of the policy's term and the term of
such policy extends at least five years beyond the maturity of
the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the
value of such Mortgaged Property is materially and adversely
affected or (2) under applicable federal, state or local law, (a)
such Hazardous Material could be required to be eliminated at a
cost materially and adversely affecting the value of the
Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred, or (b) the
presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous
Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (ii)
such Mortgaged Property is in material compliance with all
applicable federal, state and local laws pertaining to Hazardous
Materials or environmental hazards, any noncompliance with such
laws does not have a material adverse effect on the value of such
Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant
B-5
thereon, has received any notice of violation or potential
violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum
products, explosives, radioactive materials, polychlorinated
biphenyls or related or similar materials and any other substance
or material as may be defined as a hazardous or toxic substance
by any federal, state or local environmental law ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
Sections 6901 et seq.), the Federal Water Pollution Control Act
as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid
and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law) and there is no valid defense, counterclaim or
right of offset or rescission available to the related Mortgagor with
respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage to be, insured by (a) a fire and
extended perils insurance policy providing coverage against loss or
damage sustained by reason of fire, lightning, windstorm, hail,
explosion, riot, riot attending a strike, civil commotion, aircraft,
vehicles and smoke, and, to the extent required as of the date of
origination by the originator of such Mortgage Loan consistent with
its normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality
of the Mortgaged Property in an amount not less than the lesser of the
principal balance of the related Mortgage Loan and the replacement
cost of the Mortgaged Property, and contains no provisions for a
deduction for depreciation, and not less than the amount necessary to
avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property
are located in an area identified by the Federal Emergency Management
Agency as having special flood hazards and the Federal Emergency
Management Agency requires flood insurance to be maintained); and (d)
a comprehensive general liability insurance policy in
B-6
amounts as are generally required by commercial mortgage lenders, and
in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee
as an additional insured in the case of liability insurance policies
and as a loss payee in the case of property insurance policies and
requires prior notice to the holder of the Mortgage of termination or
cancellation. No such notice has been received, including any notice
of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and,
upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor. Each
Mortgage provides that casualty insurance proceeds will be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to
the restoration or repair of the related Mortgaged Property, with any
excess insurance proceeds after restoration or repair being paid to
the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable
in future installments) or other outstanding charges affecting any
Mortgaged Property that are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest or penalties
would be first payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is,
a debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by
the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"),
and as to such Ground Leases: .
i) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease (or the related estoppel
letter or lender protection agreement between the Seller and
related lessor) does not prohibit the current use of the
Mortgaged Property and does not prohibit the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the payment terms of such
Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
B-7
ii) The lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than Permitted
Encumbrances;
iii) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to the
Closing Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor or if such lessor's consent is required
it cannot be unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground
Lease is binding on a mortgagee unless the mortgagee has
consented thereto, and the Seller has received no notice that an
event of default has occurred thereunder, and, to the Seller's
knowledge, there exists no condition that, but for the passage of
time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to
give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such
holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary
from the economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure
any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related
Mortgage Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration
of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by the related Mortgage having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling
B-8
a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (B) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar
Mortgaged Property in the lending area where the Mortgaged
Property is located; and such Ground Lease contains a covenant
that the lessor thereunder is not permitted, in the absence of an
uncured default, to disturb the possession, interest or quiet
enjoyment of the lessee thereunder for any reason, or in any
manner, which would materially adversely affect the security
provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease if the Ground Lease
is rejected in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and
Treasury regulation section 1.860G-2(a), and the related Mortgaged
Property, if acquired in connection with the default or imminent
default of such Mortgage Loan, would constitute "foreclosure property"
within the meaning of Section 860G(a)(8) (without regard to Section
856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any
amount required by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior
or equal to the lien of the related Mortgage, and no rights are
outstanding that under law could give rise to any such lien that would
be prior or equal to the lien of the related Mortgage except, in each
case, for liens insured against by the Title Policy referred to
herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
B-9
23) Cross-collateralization. Except as set forth on Schedule B-1
to this Exhibit B, no Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage
Loans.
24) Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to
release all or any material portion of the related Mortgaged Property
that was included in the appraisal for such Mortgaged Property, and/or
generates income from the lien of the related Mortgage except upon
payment in full of all amounts due under the related Mortgage Loan or
in connection with the defeasance provisions of the related Note and
Mortgage. The Mortgages relating to those Mortgage Loans identified on
Schedule B-1 hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction
of certain legal and underwriting requirements and/or (b) the payment
of a release price and prepayment consideration in connection
therewith. Except as described in the first sentence hereof and for
those Mortgage Loans identified on Schedule B-1 hereto, no Mortgage
Loan permits the full or partial release or substitution of collateral
unless the mortgagee or servicer can require the Borrower to provide
an opinion of tax counsel to the effect that such release or
substitution of collateral (a) would not constitute a "significant
modification" of such Mortgage Loan within the meaning of Treas.
Reg. Section 1.1001-3 and (b) would not cause such Mortgage Loan to
fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
25) No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for
negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the Anticipated
Repayment Date) or for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property.
26) No Material Default. There exists no material Event of
Default, breach, violation or event of acceleration (and, to the
Seller's actual knowledge, no event which, with the passage of time or
the giving of notice, or both, would constitute any of the foregoing)
under the documents evidencing or securing the Mortgage Loan, in any
such case to the extent the same materially and adversely affects the
value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller in
any of paragraphs 3, 7, 12, 14, 15, 16 and 17 of this Exhibit B.
27) Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or
caused to be inspected each Mortgaged Property in connection with the
origination of the related Mortgage Loan.
B-10
28) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on
or forming part of each Mortgaged Property comply with applicable
zoning laws and ordinances, or constitute a legal non-conforming use
or structure or, if any such improvement does not so comply, such
non-compliance does not materially and adversely affect the value of
the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of
the related Mortgage Loan by the Seller hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a
Permitted Encumbrance) junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that any of
the Mortgaged Properties is encumbered by any lien junior to the lien
of the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan,
Mortgagor or related Mortgaged Property that might adversely affect
title to the Mortgaged Property or the validity or enforceability of
the related Mortgage or that might materially and adversely affect the
value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
31) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been
in all material respects legal, proper and prudent and have met
customary industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of
comparable mortgage loans, as of the date of origination of each
Mortgage Loan or as of the date of the sale of the related Mortgage
Loan by the Seller hereunder, the related Mortgagor was in possession
of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
33) Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to the Seller's
knowledge (a) the related Mortgagor is in compliance in all material
respects with all federal and state laws applicable to the use and
operation of the related Mortgaged Property, and (b) if the operator
of the Mortgaged Property participates in Medicare or Medicaid
programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
B-11
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been
assigned to the Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if, without prior
written consent of the holder of the Mortgage, the property subject to
the Mortgage or any material portion thereof, or a controlling
interest in the related Mortgagor, is transferred, sold, or
encumbered; provided, however, that certain Mortgage Loans provide a
mechanism for the assumption of the loan by a third party upon the
Mortgagor's satisfaction of certain conditions precedent, and upon
payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of
certain conditions precedent.
36) Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Principal Balance in excess of $10 million, was,
as of the origination of the Mortgage Loan, a Single Purpose Entity.
For this purpose, a "Single Purpose Entity" shall mean an entity,
other than an individual, whose organizational documents provide
substantially to the effect that it was formed or organized solely for
the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties,
and whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to
the effect that it does not have any assets other than those related
to its interest in and operation of such Mortgaged Property or
Properties, or any indebtedness other than as permitted by the related
Mortgage(s) or the other related Mortgage Loan documents, that it has
its own books and records and accounts separate and apart from any
other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and
apart from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a)
the recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Mortgagor, provided that at
least one natural person (and the Mortgagor if the Mortgagor is not a
natural person) is liable to the holder of the Mortgage Loan for
damages arising in the case of fraud or willful misrepresentation by
the Mortgagor, misappropriation of rents, insurance proceeds, or
condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the
payment of all reasonable costs and expenses of the lender incurred in
connection with the
B-12
defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than
government securities (as defined in Section 2(a)(16) of the
Investment Company Act of 1940, as amended) or any direct non-callable
security issued or guaranteed as to principal or interest by the
United States.
40) Prepayment Premiums. As of the applicable date of origination
of each such Mortgage Loan, any prepayment premiums and yield
maintenance charges payable under the terms of the Mortgage Loans, in
respect of voluntary prepayments, constituted customary prepayment
premiums and yield maintenance charges for commercial mortgage loans.
41) Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration,
or modification to any provision of the related REMIC declaration or
to any provisions of the related Mortgage Loan documents since the
startup day of the single asset REMIC. With respect to each of the
single asset REMICs, the single asset REMIC has been administered, the
related Mortgage Loan has been serviced, and each provision of the
related REMIC declaration has been complied with in a manner such that
the single asset REMIC has not failed to qualify as a REMIC for
federal income tax purposes at any time since the Startup Day.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the monitoring practices
customarily utilized by prudent commercial or multifamily, as applicable,
mortgage lenders with respect to securitizable commercial or multifamily, as
applicable, mortgage loans, including inquiry with a representative of the loan
servicer designated as the party responsible for the knowledge of the servicer
pertaining to the Mortgage Loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in the documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, has reviewed or had possession of such document at any time. For purposes
of
B-13
these representations and warranties, to the extent that any representation or
warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Mortgage Note, Mortgage, lender's title policy and any
letters of credit or Ground Leases, if such document is not included in the
Mortgage File, the Mortgage Loan Seller shall make such representation or
warranty without any such qualification. Wherever there is a reference in a
representation or warranty to receipt by, or possession of, the Mortgage Loan
Seller of any information or documents, or to any action taken by the Mortgage
Loan Seller or to any action which has not been taken by the Mortgage Loan
Seller or its agents or employees, such reference shall include the receipt or
possession of such information or documents by, or the taking of such action or
the not taking such action by, the Mortgage Loan Seller. For purposes of these
representations and warranties, when referring to the conduct of "reasonable
prudent institutional commercial or multifamily, as applicable mortgage lenders"
(or similar such phrases and terms), such conduct shall be measured by reference
to the industry standards generally in effect as of the date the related
representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
B-14
SCHEDULE B-1 to EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GERMAN AMERICAN CAPITAL CORPORATION
[On file with Mortgage Loan Seller]
B-15
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of German American Capital Corporation (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of June 3, 2005 (the
"Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial
Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at
the respective times of such signing and delivery, duly authorized or appointed
to execute such documents in such capacity, and the signatures of such persons
or facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June 16, 2005.
By:
------------------------------------
Name:
Title:
I, _____________________________, _______________________________, hereby
certify that ____________________________ is a duly elected or appointed, as the
case may be, qualified and acting _________________________ of the Mortgage Loan
Seller and that the signature appearing above is his or her genuine signature.
C-1-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June 16, 2005.
By:
--------------------------------
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American Capital
Corporation (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of June 3, 2005 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this 16th day of June, 2005.
GERMAN AMERICAN CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
C-2-1