EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 3, 2005 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC"), 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) German
American Capital Corporation ("GACC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of June 3, 2005,
between the Purchaser and GACC. The Mortgage Loan Seller, GMACCM and GACC, 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, Inc. (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 $556,936,310, 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 New York, 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 and the Mortgaged
Properties related to such Mortgage Loans, the information set forth on the
pages between 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 San Marcos Apartments Whole Loan and the
College Station Apartments Whole Loan (as defined in the Prospectus
Supplement)), 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
San Marcos Apartments Whole Loan and the Mortgaged Property 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 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," the fourteenth
paragraph in "Description of the Certificates--Subordination; Allocation of
Losses and Expenses," the third sentence of the second paragraph in "--P&I
and Servicing Advances" and the thirteenth paragraph in "--Appraisal
Reductions" (provided, that with respect to the information in the
fourteenth paragraph in "Description of the Certificates-Subordination;
Allocation of Losses and Expenses," the third sentence of the second
paragraph in "--P&I and Servicing Advances" and in the thirteenth paragraph
in "Description of the Certificates-Appraisal Reductions," only such
portions that solely relate to the related intercreditor agreement of the
San Marcos Apartments Whole Loan) or as set forth in Annex A to the
Prospectus Supplement or (to the extent it contains information consistent
with that on such Annex A) 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 College Station
Apartments Whole Loan and the Mortgaged Property related thereto and does
not
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represent a restatement or aggregation of the information on the Loan
Detail, the information set forth in the Prospectus Supplement and 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," the fifteenth paragraph in "Description
of the Certificates--Subordination; Allocation of Losses and Expenses," the
third sentence of the second paragraph in "--P&I and Servicing Advances"
and the thirteenth paragraph in "--Appraisal Reductions" (provided, that
with respect to the information in the fifteenth paragraph in "Description
of the Certificates-Subordination; Allocation of Losses and Expenses," the
third sentence of the second paragraph in "--P&I and Servicing Advances"
and in the thirteenth paragraph in "Description of the
Certificates-Appraisal Reductions," only such portions that solely relate
to the related intercreditor agreement of the College Station Apartments
Whole Loan) or as set forth in Annex A to the Prospectus Supplement and (to
the extent it contains information consistent with that on such Annex A) 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, 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.
(xi) 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:
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(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, 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
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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:
(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;
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(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 New York, dated not earlier
than 30 days prior to the Closing Date;
(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 and 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
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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 San Marcos Apartments
Whole Loan and the College Station Apartments Whole Loan) 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" 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 San Marcos Apartments Whole Loan (as defined in the
Prospectus Supplement) and the Mortgaged Property 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," the fourteenth paragraph in
"Description of the Certificates--Subordination; Allocation of Losses and
Expenses," the third sentence of the second paragraph in "--P&I and Servicing
Advances" and the twelfth paragraph in "--Appraisal Reductions" (provided, that
with respect to the information in the fourteenth paragraph in "Description of
the Certificates-Subordination; Allocation of Losses and Expenses," the third
sentence of the second paragraph in "--P&I and Servicing Advances" and in the
fourteenth paragraph in "Description of the Certificates-Appraisal Reductions,"
only such portions that solely relate to the related intercreditor agreement of
the San Marcos
-10-
Apartments Whole Loan) or set forth in Annex A to the Prospectus Supplement
(exclusive of the Loan Detail) and such information does not represent a
restatement or aggregation of information contained in the Loan Detail; (iv) any
such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to information regarding the College Station Apartments
Whole Loan (as defined in the Prospectus Supplement) and the Mortgaged Property
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," the fifteenth paragraph under "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the third
sentence of the second paragraph in "--P&I and Servicing Advances" and the
thirteenth paragraph in "--Appraisal Reductions" (provided, that with respect to
the information in the fifteenth paragraph in "Description of the
Certificates-Subordination; Allocation of Losses and Expenses," the third
sentence of the second paragraph in "--P&I and Servicing Advances" and in the
fourteenth paragraph in "Description of the Certificates-Appraisal Reductions,"
only such portions that solely relate to the related intercreditor agreement of
the College Station Apartments Whole Loan) or set forth in Annex A to the
Prospectus Supplement (exclusive of the Loan Detail) and such information does
not represent a restatement or aggregation of information contained in the Loan
Detail; (v) 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 (vi) 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 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
-11-
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).
(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
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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 party which made such payment. 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
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., 1221 Avenue
of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (212)
762-8831 and a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, facsimile
no. (▇▇▇) ▇▇▇-▇▇▇▇ 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 THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
-14-
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.
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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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
-------------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
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
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
B-1
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 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
B-2
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. 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.
B-3
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 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
B-4
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
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
B-5
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 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.
▇-▇
▇▇) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. 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;
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
B-7
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 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.
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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.
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.
B-9
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.
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-10
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 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.
B-11
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 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
B-12
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-13
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
REP. 4 LIEN; VALID ASSIGNMENT
With respect to Loan No. 10, NJ Industrial/Office Portfolio 2, the tenant at ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ has a first refusal option to purchase the property. The right of
first refusal does not apply in the case of sale to affiliates or in connection
with a public sale relating to a foreclosure. In addition, the tenant at the ▇▇
▇▇▇▇▇▇ ▇▇▇▇ has an option to purchase the premises during the 10th and 20th
years of the initial term at fair market value. Landlord may also offer the
tenant after the first three lease years the opportunity to purchase the
premises at fair market value.
With respect to Loan No. 20, San Marcos Apartments, the related Mortgage Loan is
part of a split loan structure and is senior to a $1,998,750 B note.
With respect to Loan No. 24, College Station, the related Mortgage Loan is part
of a split loan structure and is senior to a $1,998,750 B note.
REP. 7 CONDITION OF PROPERTY; CONDEMNATION
While the seller does not believe that the lack of the escrow amounts reserved
will materially and adversely effect the security for the related Mortgage Loan,
the engineering reports for the following Mortgage Loans recommended that
escrows be established for immediate repairs, but do to various reasons the
related borrower was not required to escrow such amounts:
Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Loan No. 44, U-Haul Portfolio
Loan No. 71, ▇▇▇ ▇▇▇▇▇▇ ▇▇.
Loan No. 88, Spiegel & Newport News Office
With respect to Loan No. 88, Spiegel & Newport News Office, small condemnation
is in progress for road widening.
REP. 9 NO HOLDBACKS
With respect to Loan No. 59, Rail Central, the related mortgage loan seller held
back $1,280,000 at closing. All but $340,848.74 has already been released to the
borrower. The hold back is releasable upon the borrower satisfying certain
conditions, including achieving certain debt service coverage ratio and loan to
value ratio in accordance with the related mortgage loan documents. If the
borrower does not meet these conditions prior to October 1, 2006, the remaining
amount that was held back will be used to prepay the mortgage loan with yield
maintenance.
REP. 14 INSURANCE
B-14
With respect to ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, the insurance provisions of
the Telcordia lease shall apply for so long as the Telcordia lease is not in
default and the loan is not in default.
With respect to Loan No 64, Seminole Lakes Plaza, in the related Mortgage and
Security agreement Section 3.3(a)(viii) provides that the Borrower shall not be
required to obtain terrorism insurance to the extent such terrorism insurance
exceed five times the amount of annual premiums or terrorism insurance coverage
expended by Borrower in 2005.
With respect to Loan Nos. 45 and 88, Spiegel and Newport Warehouse and Spiegel
and Newport Office, the insurance provisions of the related master lease shall
apply for so long as the such master leases are in effect.
[Please add to Schedule B-1. the following:]
With respect to Loan No. 63, Township Square, environmental insurance was
obtained.
REP. 22 NO MECHANICS' LIENS
With respect to Loan ▇▇. ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, see Rep. 31
REP. 25 RELEASES OF MORTGAGED PROPERTY
With respect to Loan No. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ is required to
release up to 50% of the Property (a "Partial Release Parcel") if Borrower elect
to transfer the Partial Release Parcel for conversion to condominium units,
provided Borrower pays a release price of 125% of the loan amount. Defeasance
applies if the release occurs after the date that is 2 years after the REMIC
startup date (the "Release Date") and prior to March 8, 2010, however,
prepayment with Yield Maintenance Premium applies prior to the Release Date.
With respect to ▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, the borrower may at any time
prior to the Maturity Date obtain a release of the lien of the mortgage in
connection with a transfer of one or more expansion parcels designated in the
loan documents for the development of office, residential, industrial and/or
research and development facilities compatible with use and operation of the
Telcordia Headquarters Property, provided, among other things, that (i) no event
of default has occurred and remains uncured, (ii) the debt service coverage
ratio after taking into account any improvement which is proposed to be built on
the expansion parcel and its effect on income and expenses at the Telcordia
Headquarters Property, will not be less than the debt service coverage ratio as
of the date immediately preceding the lease, and (iii) the lender has received
an appraisal indicating an appraised value of the Telcordia Headquarters
Property after the partial release both before and after construction of
improvements to be built on the expansion parcel, equal to or greater than the
value of the Telcordia Headquarters Property prior to such release (exclusive of
the value of the expansion parcel). In addition, (i) the borrower may at any
time prior to the Maturity Date ground lease one or more parcels designated in
the loan documents on the comparative conditions to the above, provided, that
the borrower also delivers, as additional security for the Telcordia
Headquarters Loan, a letter of credit in the amount of the appraisal of the
ground leased parcel; (ii) the borrower must pay all out of pocket expenses of
the lender incurred in connection with the release, including lender's
reasonable
B-15
attorney's fees and expenses; (iii) the borrower must give 30 days notice; and
(iv) the borrower must obtain all required approvals.
With respect to Loan ▇▇. ▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, borrower may obtain the
release of one or more of the buildings constituting the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Property, provided that the borrower is required to pay a yield maintenance
charge on the portion that is repaid, and any such repayments must equal 125% of
the applicable allocated loan amount. In addition, the borrower is also required
to comply with, among others, the following conditions: (i) the debt service
coverage ratio with respect to the remaining properties must not be less than
1.25x, (ii) the loan-to-value ration must be equal to or less than 0.75x, (iii)
the borrower must obtain a rating agency confirmation that the release will not
cause a rating agency to qualify, withdraw or downgrade any of its then-current
ratings on the Certificates, and (iv) the borrower must pay all out of pocket
expenses of the lender incurred in connection with the release, including
lender's reasonable attorney's fees and expenses.
With respect to Loan Nos. 9 and 10, NJ Industrial/Office Portfolio 1 and NJ
Industrial/Office Portfolio 2, borrower may obtain the release of one or more of
the buildings provided that the borrower is required to pay a yield maintenance
charge on the portion that is repaid, and (i) any such repayments must equal
125% of the applicable allocated loan amount so long as the debt service
coverage ratio with respect to the remaining properties is at least 1.24x or
(ii) any such repayments must equal 100% of the applicable allocated loan amount
if the debt service coverage ratio with respect to the remaining properties is
at least 1.30x during the first two years, 1.35x during year three and 1.40x
thereafter. Following the date that is 2 years from the closing date of the
securitization the borrower may partially defease the Mortgage Loan in
accordance with provisions set forth in the previous sentence except that no
yield maintenance will be required.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, the borrower may release
outparcels (outparcels 1, 2, 3 and 4), which were not included in the appraised
value and are shown on Exhibit B of the Mortgage Agreement, provided that (i) no
event of default has occurred; (ii) the borrower provides updated ALTA survey;
(iii) the borrower obtains all required approvals and permits; (iv) there is no
adverse effect on the debt service coverage; and (v) the borrower must pay all
out of pocket expenses of the lender incurred in connection with the release,
including lender's reasonable attorney's fees and expenses.
REP. 29 LOCAL LAW COMPLIANCE
With respect to Loan Nos. 9 and 10, NJ Industrial/Office Portfolio 1 and NJ
Industrial/Office Portfolio 2, borrower was not able to provide certificates of
occupancy for the Property securing the Loan.
With respect to Loan Nos. 67 and 76, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, a search with New York City records online indicates with respect to
Loan No. 67, building code and environmental violations, and with respect to
Loan No. 76, building code violations.
REP. 31 ACTIONS CONCERNING MORTGAGE LOANS
B-16
With respect to Loan No. 42, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, final payment in the approximate
amount of $1,400,000 is still due and owing to the general contractor for
construction costs. In lieu of filing a mechanic's lien the borrower and the
general contractor have entered into an escrow agreement.
REP. 33 LICENSES AND PERMITS
With respect to Loan No. 9, NJ Industrial/Office Portfolio 1, borrower was not
able to provide certificates of occupancy for the Property securing the Loan.
With respect to Loan No. 10, NJ Industrial/Office Portfolio 2, borrower was not
able to provide certificates of occupancy for the Property securing the Loan.
REP. 36 DUE ON SALE
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments, the related
borrower incurred mezzanine debt in the amount of $705,000 secured by the equity
interests of the borrower.
REP. 37 SINGLE PURPOSE ENTITY
With respect to Loan No. 32, 2500 Wilshire Blvd., the borrower is an existing
single purpose entity and not a newly formed entity.
REP. 38 NON-RECOURSE EXCEPTIONS
With respect to Loan Nos. 5, 6, 44 and 71, Telcordia Headquarters, 3301 N.
Buffalo Drive, U-Haul Portfolio and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, there are no natural person
guarantors.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, there is no natural person
guarantor with respect to the environmental indemnity. Environmental insurance
has been obtained. With respect to Loan ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments, the
loan is recourse to a natural person for only fraud and voluntary bankruptcy.
B-17
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (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 New York.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
In connection with the execution and delivery by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
C-2-1