EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 3, 2005, between GMAC Commercial Mortgage Corporation, as
seller (the "Mortgage Loan Seller" or "GMACCM"), 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 (each, a "Mortgage Loan" and collectively, 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)
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 and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. ("MSMC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of June 3, 2005 between the Purchaser
and MSMC. The Mortgage Loan Seller, GACC and MSMC are collectively referred to
as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed
by the Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, 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, 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 (in such capacity, an "Initial Purchaser"). 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 (which Cut-off Dates may occur after
the Closing Date), 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
$558,884,260 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
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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.
(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 California,
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.
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(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 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,
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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 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
between pages A-22 and A-23 inclusive of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans (other than the Windsor Hospitality Portfolio Whole Loan (as
defined in the Prospectus Supplement)) and the Mortgaged Properties related
thereto and/or the Mortgage Loan Seller and does not represent a
restatement or aggregation of the information on the Loan Detail, the
information set forth in the Prospectus Supplement and the Memorandum (as
defined in Section 9) under the headings "Summary of Series 2005-C1
Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans,"
"Risk Factors," and "Description of the Mortgage Pool" or set forth on
Annex A and/or Annex B to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Insofar as it
relates to the Windsor Hospitality Portfolio 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," "Servicing of the Mortgage Loans," "The Pooling and
Servicing Agreement," and/or "Description of the Certificates" or set forth
on Annex A and/or Annex B to the Prospectus Supplement and (to the extent
it contains information consistent with that on such Annex A) set forth on
the Diskette, does not contain any untrue statement of a material fact or
(in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors)
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the
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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.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit B, which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not
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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 hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02
and 2.03 of the Pooling and Servicing Agreement, including, but not limited to,
any obligation to repurchase or substitute Mortgage Loans in respect of any
Material Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing Date,
and the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Mortgage Loan Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of Exhibit C-1
hereto, executed by the Secretary or an assistant secretary of the Mortgage
Loan Seller, and dated the Closing Date, and upon which the Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan Seller
from the Secretary of State for the State of California, dated not earlier
than 30 days prior to the Closing Date;
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(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser 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 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 Windsor Hospitality Portfolio Whole
Loan (as defined in the Prospectus Supplement)) or the Mortgaged Properties
related thereto contained in the Prospectus Supplement or the Memorandum under
the headings "Summary of Series 2005-C1 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment
Terms of the Mortgage Loans," "Risk Factors," 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); or (iii) any such untrue statement or alleged untrue statement or omission
or alleged omission is with respect to information regarding the Windsor
Hospitality Portfolio Whole Loan (as defined in the Prospectus Supplement) or
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
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Properties," "--Property Types," "--Prepayment or Call Protection Provided by
the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors,"
"Description of the Mortgage Pool," "Servicing of the Mortgage Loans," "The
Pooling and Servicing Agreement," and/or "Description of the Certificates" or
contained on Annex A and/or Annex B to the Prospectus Supplement (exclusive of
the Loan Detail) (provided that with respect to information set forth in Annex B
specifically attributed to any appraisal for the related Mortgaged Property,
only if such information is misstated in Annex B); or (iv) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Mortgage
Loan Seller set forth in or made pursuant to Section 4; or (v) any untrue
statement or alleged untrue statement arises out of or is with respect to any
Asset Summary and such untrue statement or alleged untrue statement does not
relate to information from a Third Party Report, except to the extent that any
such information provided in reliance upon a Third Party Report is misstated in
such Asset Summary; provided, that the indemnification provided by this Section
9 shall not apply to the extent that such untrue statement of a material fact or
omission of a material fact necessary to make the statements made, in light of
the circumstances in which they were made, not misleading, was made as a result
of an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Mortgage
Loan Seller may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-123974 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Prospectus"
shall mean the prospectus dated April 26, 2005, as supplemented by the
prospectus supplement dated June 3, 2005 (the "Prospectus Supplement"), relating
to the Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated June 3, 2005, relating to the Non-Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance, Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
10
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 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
11
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 GMAC Commercial
Mortgage Corporation, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Structured Finance Manager, facsimile no. (215)
12
328-1775, with a copy to GMAC Commercial Mortgage Corporation, 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.
13
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner, which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached spreadsheet.
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
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
B-1
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 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
B-2
Mortgaged Properties securing the Mortgage Loans that were not the subject
of an engineering report within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B, each Mortgaged Property is in good
repair and condition and all building systems contained therein are in good
working order (or adequate reserves therefor have been established) and
each Mortgaged Property is free of structural defects, in each case, that
would materially and adversely affect its value as security for the related
Mortgage Loan as of the date hereof. The Seller has received no notice of
the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of the Mortgage Loans), as of the date of the origination of
each Mortgage Loan, all of the material improvements on the related
Mortgaged Property that were considered in determining the appraised value
of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to herein
or that do not materially and adversely affect the value or marketability
of such Mortgaged Property, and no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged Property,
except those encroachments that are insured against by the Title Policy
referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required
premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage
Loan after all advances of principal. Each Title Policy insures that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to Permitted Encumbrances. Each Title Policy (or, if it has
yet to be issued, the coverage to be provided thereby) is in full force and
effect, all premiums thereon have been paid, and no material claims have
been made thereunder and no claims have been paid thereunder. No holder of
the related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction
in which the related Mortgaged Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. 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
B-3
remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the
security intended to be provided thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release
of the related Mortgaged Property or related security for the related
Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within
18 months prior to the Cut-off Date as set forth on Schedule B-1 to
this Exhibit B, an environmental site assessment, or an update of a
previous such report, was performed with respect to each Mortgaged
Property in connection with the origination or the sale of the related
Mortgage Loan, a report of each such assessment (or the most recent
assessment with respect to each Mortgaged Property) (an "Environmental
Report") has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed
in such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance
or (ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated, or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
In the case of each Mortgage Loan set forth on Schedule B-1 to this
Exhibit B, (i) such Mortgage Loan is the subject of a Secured Creditor
Impaired Property Policy, issued by the 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
B-4
after the closing of the Mortgage Loan, (iv) on the effective date of
the Environmental Insurance Policy, Seller as originator had no
knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than the
existence of LBP, ACM or RG) that was not disclosed to the Policy
Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the
Policy Issuer, or (c) an engineering or other report provided to the
Policy Issuer, and (v) the premium of any Environmental Insurance
Policy has been paid through the maturity of the policy's term and the
term of such policy extends at least five years beyond the maturity of
the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth on
Schedule B-1 to this Exhibit B, (i) no Hazardous Material is present
on such Mortgaged Property such that (1) the value of such Mortgaged
Property is materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could be
required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred, or (b) the
presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged Property
is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect
on the value of such Mortgaged Property, and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
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
B-5
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to
such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending
a strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage
Loan consistent with its normal commercial mortgage lending practices,
against other risks insured against by persons operating like properties in
the locality of the Mortgaged Property in an amount not less than the
lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the Mortgaged Property, and contains no provisions for
a deduction for depreciation, and not less than the amount necessary to
avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an
area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires
flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in 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.
B-6
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole
or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's
interest in the Ground Lease but not by the related fee interest in such
Mortgaged Property (the "Fee Interest"), and as to such Ground Leases: .
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and does
not prohibit the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
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.
B-7
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling 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
B-8
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to
the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the
lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
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
B-9
acceleration that specifically pertains to any matter otherwise covered by
any other representation and warranty made by the Seller in any of
paragraphs 3, 7, 12, 14, 15, 16 and 17 of this Exhibit B.
27) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
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
B-10
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.
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
B-11
such Mortgage Loan and the release of the related Mortgaged Property, and
the borrower is required to pay all reasonable costs and expenses of the
lender associated with the approval of an assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act of
1940, as amended) or any direct non-callable security issued or guaranteed
as to principal or interest by the United States.
40) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41) Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan has
been serviced, and each provision of the related REMIC declaration has been
complied with in a manner such that the single asset REMIC has not failed
to qualify as a REMIC for federal income tax purposes at any time since the
Startup Day.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the monitoring practices
customarily utilized by prudent commercial or multifamily, as applicable,
mortgage lenders with respect to securitizable commercial or multifamily, as
applicable, mortgage loans, including inquiry with a representative of the loan
servicer designated as the party responsible for the knowledge of the servicer
pertaining to the Mortgage Loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in the documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, has reviewed or had possession of such document at any time. For purposes
of 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,
B-12
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Mortgage Loan Seller
shall make such representation or warranty without any such qualification.
Wherever there is a reference in a representation or warranty to receipt by, or
possession of, the Mortgage Loan Seller of any information or documents, or to
any action taken by the Mortgage Loan Seller or to any action which has not been
taken by the Mortgage Loan Seller or its agents or employees, such reference
shall include the receipt or possession of such information or documents by, or
the taking of such action or the not taking such action by, the Mortgage Loan
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
B-13
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GMAC COMMERCIAL MORTGAGE CORPORATION
Exception to Representation 7 - Condition of Property; Condemnation:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
48288 Walgreens Berkley Heights No engineering inspection was performed,
since the property is not yet built
--------------------------------------------------------------------------------
B-14
Exception to Representation 14 - Insurance:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
47532 New Hampshire Retail The Mortgage Loan documents do not require the
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ I & II related borrower to carry terrorism insurance
47132 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ under certain circumstances, as specified in
47498 Briarwood Apartments the applicable Mortgage Loan Documents.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
47352 Residence Inn The Deed of Trust provides that the insurance
requirements are governed by the Management
Agreement (unless and until the Manager is no
longer managing the Mortgaged Property or
lender reasonably determines that Manager's
insurance program is not on par with high
quality nationally recognized hotel managers),
which, in turn, (i) does not require that
Fire/All-Risks coverage be maintained at levels
in order to avoid co-insurance, (ii) only
requires Fire/All-Risks be maintained in an
amount not less than 90% of the replacement
cost with fire, lightning and other usual
events covered by an extended coverage
endorsement, (iii) only requires the amount of
Business Interruption coverage be of a type and
in amounts generally established by Manager at
similar inns it manages and (iv) does not
require terrorism coverage be maintained.
--------------------------------------------------------------------------------
47626 ▇▇▇▇▇▇▇▇ Village The umbrella policy does not include coverage
for terrorism.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
477747 Walgreens Ferndale The tenants at each of the Mortgaged Properties
48288 Walgreens Berkley are permitted to self insure. Therefore, this
Heights representation is not made with respect to the
either of these Mortgage Loans.
--------------------------------------------------------------------------------
B-15
Exceptions to Representation 17 - Leasehold Estate:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
45021 Avistar Parking None of these representations are made with
respect to the ground lease parcel that
comprises a portion of the Mortgaged Property
for this Mortgage Loan.
--------------------------------------------------------------------------------
Exception to Representation 23 - Cross-collateralization:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
48613 Windsor Portfolio Each Deed of Trust under the Windsor Portfolio
secures the original Mortgage Loan as split
into a senior A and junior subordinated B loan.
The junior subordinated B loan is not being
securitized.
--------------------------------------------------------------------------------
Exception to Representation 24 - Releases of Mortgaged Property:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
48483 Torrance Center South The Mortgage Loan Documents provide for a
Complex partial release of the Mortgaged Property upon
48437 New Hampshire Retail certain conditions more fully set forth in the
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ applicable Mortgage Loan Documents.
Windsor Hotel
48613 Portfolio
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ I & II The Mortgage Loan Documents provide for a
partial release of the Mortgaged Property upon
satisfaction of certain conditions more fully
set forth therein. In addition, the Mortgage
Loan Documents permit the related borrower to
transfer one of the individual Mortgaged
Properties to a third party who may assume the
applicable portion of the Mortgage Loan upon
satisfaction of certain conditions. Upon such
transfer and assumption, the Mortgage Loan
shall be split to provide for two sets of loan
documents which will not be
cross-collateralized with each other.
--------------------------------------------------------------------------------
B-16
Exception to Representation 25 - No Equity Participation or Contingent Interest:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ I & II A member of the related borrower under the
Mortgaged Loan Documents is also an affiliate
of the Seller.
--------------------------------------------------------------------------------
Exception to Representation 29 - Junior Liens:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
48613 Windsor Portfolio Each of the first priority Deeds of Trust under
the Windsor Portfolio secures the original
Mortgage Loans as split into a senior first
priority A loan and a junior subordinated B
loan. The junior subordinated B loan is not
being securitized. Each Mortgaged Property
under the Windsor Portfolio is also encumbered
by a subordinate Deed of Trust executed for the
benefit of the lender in order to effectuate
cross-collateralization of the loans.
--------------------------------------------------------------------------------
46334 Studebaker The Housing Authority of the City and County of
Denver has a subordinate $3,000,000 loan
secured by a mortgage on the Mortgaged
Property.
--------------------------------------------------------------------------------
Exception to Representation 32 - Licenses and Permits:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
47691 One Riverway Office The borrower has not obtained a Certificate of
Occupancy for the parking garage comprising a
portion of Mortgaged Property.
--------------------------------------------------------------------------------
Exception to Representation 35 -Due on Sale:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
45021 Avistar Parking Mezzanine financing secured by interests in the
47983 Atrium 2656 applicable borrower are permitted, provided the
48643 ▇▇▇▇ ▇ ▇▇▇▇ conditions in the applicable Mortgage Loan
48846 ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are satisfied.
--------------------------------------------------------------------------------
B-17
Exception to Representation 36 -Single Purpose Entity :
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ The borrower is not prohibited from commingling
its assets with the assets of any other party.
--------------------------------------------------------------------------------
48437 Empirian at Winter The borrower was not formed for the purpose of
Oaks solely owning and operating the Mortgaged
Property.
--------------------------------------------------------------------------------
Exception to Representation 37 - Non-Recourse Exceptions:
--------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
47498 Briarwood Apartments No natural person is liable for damages arising
47939 Two Detroit Center in the case of fraud or willful
Garage misrepresentation by the Mortgagor,
47352 Residence Inn misappropriation of rents, insurance proceeds,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or condemnation awards and breaches of
47132 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ environmental covenants.
--------------------------------------------------------------------------------
B-18
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
GMAC COMMERCIAL MORTGAGE CORPORATION
CERTIFICATE OF SECRETARY
I, the undersigned Assistant Secretary of GMAC COMMERCIAL MORTGAGE
CORPORATION (the "COMPANY" or "MORTGAGE LOAN SELLER"), hereby certify as
follows:
(1) I am a duly elected, qualified and acting Assistant Secretary of
the Company.
(2) The Company is a corporation organized under the laws of the State
of California. A true and correct copy of the Certificate of Good Standing
for the Company issued by the Secretary of State for the State of
California is attached hereto as Exhibit I.
(3) Also attached hereto as Exhibit I are true, correct and complete
copies of the Company's Certificate of Incorporation and Bylaws, as amended
through the date hereof.
(4) Attached hereto as Exhibit II is a copy of certain resolutions of
the Company which have been duly adopted by the Company and which remain in
full force and effect as of the date hereof and have not been amended,
rescinded or impaired in any way.
(5) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Mortgage Loan Seller are pending or
contemplated.
(6) Each person listed below currently holds the title set forth
opposite his or her name and the signature of each such person (whether
applied manually, by facsimile, or as an electronic signature) appearing
below, opposite his or her name, is his or her genuine signature:
NAME TITLE SIGNATURE
----------------------------
----------------------------
----------------------------
----------------------------
(7) 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
C-1-1
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.
IN WITNESS WHEREOF, I have executed this Certificate as of this ___th
day of [________] 2005.
_______________________________________
[Name], [Assistant] Secretary
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial
Mortgage Corporation (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of June 3, 2005 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this __th day of [________] 2005.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
----------------------------------
Name:
Title:
C-2-1