EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of January 25, 2006 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.,
as seller (the "Mortgage Loan Seller" or "MSMC"), and GMAC Commercial Mortgage
Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser desires to purchase, subject to the
terms and conditions set forth below, the multifamily and commercial mortgage
loans (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) GMAC Commercial
Mortgage Corporation ("GMACCM"), pursuant to, and for the consideration
described in, the mortgage loan purchase agreement, dated as of January 25,
2005, between the Purchaser and GMACCM (the "GMACCM Mortgage Loan Purchase
Agreement"), (ii) German American Capital Corporation ("GACC"), pursuant to, and
for the consideration described in, the mortgage loan purchase agreement, dated
as of January 25, 2006, between the Purchaser and GACC (the "GACC Mortgage Loan
Purchase Agreement"), and (iii) GACC, pursuant to, and for the consideration
described in, an additional and separate mortgage loan purchase agreement, dated
as of January 25, 2006 between the Purchaser and GACC (the "CWCapital/GACC
Mortgage Loan Purchase Agreement"). The Mortgage Loan Seller, GMACCM and GACC
are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together with
the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed by the
Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of January 1, 2006
(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, CWCapital Asset
Management, LLC, as special servicer (in such capacity, the "Special Servicer")
and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "Trustee"). 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-1D, Class
A-2, Class A-3, Class A-4, Class XP, Class A-M, Class A-J, Class B, Class C,
Class D and Class E 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 XC, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class FNB-1, Class FNB-2, Class FNB-3,
Class FNB-4,
Class FNB-5 and Class FNB-6 Certificates to Deutsche Bank Securities Inc. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (in such capacity, each an "Initial
Purchaser"), pursuant to a certificate purchase agreement, dated the date hereof
(the "Certificate Purchase Agreement"). The Purchaser intends to sell the Class
▇-▇, Class R-I, Class R-II and Class R-III Certificates to a Qualified
Institutional Buyer. The Class XC, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class FNB-1,
Class FNB-2, Class FNB-3, Class FNB-4, Class FNB-5, Class FNB-6, Class ▇-▇,
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 January
31, 2006 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 January 2006. As of the close of
business on their respective Cut-off Dates, the Mortgage Loans will have an
aggregate principal balance (the "Aggregate Cut-off Date Balance"), after
application of all payments of principal due thereon on or before such date,
whether or not received, of $177,066,469 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
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term is defined in the Pooling and Servicing Agreement) to the Trustee, and
otherwise comply with the requirements of Sections 2.01(b), 2.01(c) and 2.01(d)
of the Pooling and Servicing Agreement, provided that whenever the term Mortgage
File is used to refer to documents actually received by the Purchaser or the
Trustee, such term shall not be deemed to include such documents and instruments
required to be included therein unless they are actually so received.
(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, subject to the exceptions set forth on
Schedule B-1 to Exhibit B hereto.
(b) In addition, the Mortgage Loan Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage Loan
Seller, and the performance and compliance with the terms of this Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan Seller's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the Mortgage
Loan Seller to carry out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized
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the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other 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
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securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not otherwise
intended to be a Registered Certificate. In addition, the Mortgage Loan
Seller will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to
any of the Certificates or interests therein. For purposes of this
paragraph 4(b)(viii), the term "similar security" shall be deemed to
include, without limitation, any security evidencing 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 in
Updated Annex A (as defined in Section 9), as of its date and as of the
Time of Sale (as defined in Section 9), and the information set forth
between pages A-17 and A-20 inclusive of Annex A to the Prospectus
Supplement (as defined in Section 9), as of its date and as of the Closing
Date, (together, the "Loan Detail") and, to the extent consistent
therewith, the information set forth on the diskette attached to the Issuer
Free Writing Prospectus (as defined in Section 9) (the "FWP Diskette"), as
of its date and as of the Time of Sale, or the diskette attached to the
Prospectus Supplement and the accompanying prospectus (the "Pro Supp
Diskette" and together with the FWP Diskette, the "Diskettes"), as of its
date and as of the Closing Date, is true and correct in all material
respects. Insofar as it relates to the Mortgage Loans (other than The
Outlets at Hershey Whole Loan) 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 Issuer Free Writing Prospectus, as of its date and as of the
Time of Sale, the Prospectus Supplement, as of its date and as of the
Closing Date, and the Memorandum (as defined in Section 9), as of its date
and as of the Closing Date, under the headings "Summary of Series 2006-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," "Other Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (MSMC)" and "Description of the Mortgage Pool" and/or set
forth on Updated Annex A to the Issuer Free Writing Prospectus, as of its
date and as of the Time of Sale, or Annex A to the Prospectus Supplement,
as of its date and as of the Closing Date, as applicable, and (to the
extent it contains information consistent with that on such Updated Annex A
in the case of the Issuer Free Writing Prospectus, or Annex A in the case
of the Prospectus Supplement) set forth on the FWP Diskette, as of its date
and as of the Time of Sale, or the Pro Supp Diskette, as of its date and as
of the Closing Date, as applicable, 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 Outlets at Hershey Whole
Loan and/or the Mortgaged Property 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 Issuer
Free Writing Prospectus, as of its date and as of the Time of Sale, the
Prospectus Supplement, as of its date and as of the Closing Date, and the
Memorandum, as of its date
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and as of the Closing Date, under the headings "Summary of Series 2006-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," "Other Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (MSMC)," "Description of the Mortgage Pool," the second
paragraph in "Servicing of the Mortgage Loans," the first and second
paragraphs in "--Servicing Standard," the fourth paragraph in "--Specially
Serviced Mortgage Loans," the fourth sentence of the third paragraph, the
sixth sentence of the fifth paragraph, and the eighth sentence of the sixth
paragraph in "--Servicing and Other Compensation and Payment of Expenses,"
the fourth paragraph in "--Modifications, Waivers, Amendments And
Consents," the fifth sentence of the third paragraph and the fourth
paragraph in "--REO Properties," the first, second, third and sixth
paragraphs in "The Pooling and Servicing Agreement--Realization Upon
Defaulted Mortgage Loans," the twelfth paragraph in "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the second
sentence of the second paragraph in "--P&I and Servicing Advances" and/or
the ninth paragraph in "--Appraisal Reductions" and/or set forth on Updated
Annex A to the Issuer Free Writing Prospectus, as of its date and as of the
Time of Sale, and Annex A to the Prospectus Supplement, as of its date and
as of the Closing Date, as applicable, (but only such portions that relate
to the intercreditor agreement related to The Outlets at Hershey Whole
Loan) and (to the extent it contains information consistent with that on
such Updated Annex A to the Issuer Free Writing Prospectus, or Annex A in
the case of the Prospectus Supplement) set forth on the FWP Diskette, as of
its date and as of the Time of Sale, or the Pro Supp Diskette, as of its
date and as of the Closing Date, as applicable, 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) The information set forth in the Prospectus Supplement under the
heading "Other Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc. (MSMC)" satisfies the requirements of Items 1110, 1117 and 1119 of
Regulation AB under the Securities Act.
(xi) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the consummation by the
Mortgage Loan Seller of any transaction contemplated hereby, other than (1)
the filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Mortgage Loan
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
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(xii) No subservicing agreements have been entered into with a
Sub-Servicer of the Mortgage Loans, if any, (other than GMAC Commercial
Mortgage Corporation) by or at the request of the Mortgage Loan Seller (a
"Seller Sub-Servicing 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.
(d) The Mortgage Loan Seller hereby covenants and agrees that, upon the
request of the Purchaser, it will use commercially reasonable efforts to cause
each Sub-Servicer (other than GMAC Commercial Mortgage Corporation)under a
Seller Sub-Servicing Agreement, if any, to provide all certifications and
attestations set forth in Article XII of the Pooling and Servicing Agreement, as
and when required of such Sub-Servicer.
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.
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(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated 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. This Section 6 and Sections 2.02 and 2.03 of
the Pooling and Servicing Agreement provide the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Material Breach of any representation or warranty set forth in or
required to be made pursuant to Section 4(a) or any Material Document Defect in
a Mortgage File.
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SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing Date,
and the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Mortgage Loan Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(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;
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(b) An Officer's Certificate substantially in the form of Exhibit C-1
hereto, executed by the Secretary or an assistant secretary of the Mortgage
Loan Seller, and dated the Closing Date, and upon which the Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan Seller
from the Secretary of State for the State of New York, dated not earlier
than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser, 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) Negative assurance letters, from counsel to the Mortgage Loan
Seller, in a form reasonably acceptable to counsel for the Purchaser,
regarding the Issuer Free Writing Prospectus and the Prospectus;
(g) 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
(h) 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" each, an "Indemnified Party"), 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 Issuer Free Writing Prospectus, as of its date and as of
the Time of Sale, the Prospectus Supplement, as of its date and as of the
Closing Date, the Memorandum, as of its date and as of the Closing Date, the FWP
Diskette, as of its date and as of the Time of Sale, the Pro Supp Diskette, as
of its date and as of the Closing Date, any Asset Summary (as defined
hereinafter) 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
-10-
such Asset Summary, when read in conjunction with the Issuer Free Writing
Prospectus, the Memorandum and the other information specified in the Memorandum
as being available for review by investors 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 FWP Diskette or the Pro Supp
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 Outlets
at Hershey Whole Loan) or the Mortgaged Properties related thereto contained in
the Issuer Free Writing Prospectus, as of its date and as of the Time of Sale,
the Prospectus Supplement, as of its date and as of the Closing Date, or the
Memorandum, as of its date and as of the Closing Date, under the headings
"Summary of Series 2006-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," "Other Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. (MSMC)" and/or "Description of the Mortgage Pool" or
contained on Updated Annex A to the Issuer Free Writing Prospectus, as of its
date and as of the Time of Sale, or Annex A to the Prospectus Supplement, as of
its date and as of the Closing Date, as applicable, (exclusive of the Loan
Detail) and such information does not represent a restatement or aggregation of
information contained in the Loan Detail; or (iii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to the
information regarding The Outlets at Hershey Whole Loan or the Mortgaged
Property related thereto contained in the Issuer Free Writing Prospectus, as of
its date and as of the Time of Sale, the Prospectus Supplement, as of its date
and as of the Closing Date, or the Memorandum, as of its date and as of the
Closing Date, under the headings "Summary of Series 2006-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," "Other
Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (MSMC),"
"Description of the Mortgage Pool," the second paragraph in "Servicing of the
Mortgage Loans," the first and second paragraphs in "--Servicing Standard," the
fourth paragraph in "--Specially Serviced Mortgage Loans," the fourth sentence
of the third paragraph, the sixth sentence of the fifth paragraph, and the
eighth sentence of the sixth paragraph in "--Servicing and Other Compensation
and Payment of Expenses," the fourth paragraph in "--Modifications, Waivers,
Amendments And Consents," the fifth sentence of the third paragraph and the
fourth paragraph in "--REO Properties," the first, second, third and sixth
paragraphs in "The Pooling and Servicing Agreement--Realization Upon Defaulted
Mortgage Loans," the twelfth paragraph in "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the second
sentence of the second paragraph in "--P&I and Servicing Advances" and/or the
ninth paragraph in "--Appraisal Reductions" and/or set forth on Updated Annex A
to the Issuer Free Writing Prospectus, as of its date and as of the Time of
Sale, or Annex A to the Prospectus Supplement, as of its date and as of the
Closing Date, as applicable (exclusive of the Loan Detail and only such portions
that solely relate to the intercreditor agreement related to The Outlets at
Hershey Whole Loan) and such
-11-
information does not represent a restatement or aggregation of information
contained in the Loan Detail; 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.
The Mortgage Loan Seller hereby further agrees to indemnify and hold
harmless each Indemnified Party 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 actual or alleged failure of the information set forth in the Issuer
Free Writing Prospectus or the Prospectus Supplement under the heading "Other
Originators and Sellers--▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (MSMC)" to satisfy
the requirements of Items 1110, 1117 and 1119 of Regulation AB under the
Securities Act. 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; "Base
Prospectus" shall mean the prospectus dated April 26, 2005; the "Issuer Free
Writing Prospectus" shall mean the free writing prospectus dated January 20,
2006, entitled "Free Writing Prospectus to Accompany Prospectus dated April 26,
2005", filed with the Commission on January 24, 2006, relating to the Registered
Certificates, as supplemented and superseded in part by Updated Annex A; the
"Prospectus Supplement" shall mean the prospectus supplement dated January 25,
2006, relating to the Registered Certificates; "Memorandum" shall mean the
private placement memorandum dated January 25, 2006, relating to the
Non-Registered Certificates; "Term Sheet FWP" shall mean the free writing
prospectus entitled "Structural and Collateral Term Sheet" attached as Annex C
to the Issuer Free Writing Prospectus. The mortgage loan information and
information related thereto contained on the diskette attached to the Term Sheet
FWP is referred to herein as the "Term Sheet Diskette" and the tape provided by
the Mortgage Loan Seller that was used to create the Term Sheet Diskette is
referred to herein as the "Term Sheet Master Tape." References herein to the
Term Sheet FWP 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; "Updated Annex A" shall mean the free
writing prospectus entitled "CMBS: GMAC 2006-C1 Updated Annex A" as filed with
the Commission
-12-
on January 26, 2006. "Time of Sale" shall mean the time when the first Contract
of Sale was first made in accordance with Rule 133 under the Securities Act,
which was 9:35 a.m. (New York City time) on the date hereof.
(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 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
-13-
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such parties.
(d) The Purchaser and the Mortgage Loan Seller agree that it would not be
just and equitable if contribution pursuant to Section 9(c) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(c) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 9 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the indemnifying party. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., 1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ and a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ or to
such other address or facsimile number as the Mortgage Loan Seller may designate
in writing to the Purchaser.
-14-
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.
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.
-15-
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.
-16-
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC.
By:
--------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached spreadsheet.
A-1
CONTROL LOAN LOAN SELLER/
NUMBER GROUP LOAN NUMBER ORIGINATOR (1) PROPERTY NAME ADDRESS CITY
---------------------------------------------------------------------------------------------------------------------------------
14 1 05-20083 MSMC The Outlets at Hershey ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Hershey
15 1 05-21968 MSMC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Constitution Novi
19 1 MSMC U-HAUL AREC Portfolio Rollup Various Various
19.01 U-Haul AREC MSMC U-Haul Center I-2/36 ▇▇▇▇ ▇ ▇-▇▇ ▇▇▇▇▇▇▇▇▇
19.02 U-Haul AREC MSMC U-Haul Center West Hartford ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
19.03 U-Haul AREC MSMC U-Haul Ct Levittown ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
19.04 U-Haul AREC MSMC N ▇▇▇ Houston U-Haul Center 11202 Antoine @ Beltway Houston
19.05 U-Haul AREC MSMC U-Haul Redwood City 2200 El Camino Real Redwood City
19.06 U-Haul AREC MSMC U-Haul Center Lynwood 11716 Long Beach Blvd Lynwood
19.07 U-Haul AREC MSMC U-Haul Ct Anchorage ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
19.08 U-Haul AREC MSMC U-Haul Ct Eastland ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
19.09 U-Haul AREC MSMC U-Haul Center Of Jacksonville ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ Jacksonville
19.10 U-Haul AREC MSMC Hazedell Moving & Str ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
19.11 U-Haul AREC MSMC U-Haul Southern Plaza US 31 & ▇▇▇▇▇ Avenue Indianapolis
19.12 U-Haul AREC MSMC U-Haul Ct Of Rainer ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇
19.13 U-Haul AREC MSMC U-Haul Ctr Newark ▇▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
19.14 U-Haul AREC MSMC U-Haul Ctr 82nd Ave ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
19.15 U-Haul AREC MSMC U-Haul Center Capitol Hill 26 K Street NE Washington
19.16 U-Haul AREC MSMC U-Haul Se Seattle 6403 MLK Jr Way S Seattle
19.17 U-Haul AREC MSMC U-Haul Schoolhouse ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
19.18 U-Haul AREC MSMC U-Haul Storage Verde Valley ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
19.19 U-Haul AREC MSMC U-Haul Ctr Eastgate ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
20 1 MSMC U-HAUL SAC Portfolio Rollup Various Various
20.01 U-Haul SAC MSMC U-Haul Ctr ▇▇▇▇▇▇▇▇ School Rd 8501 ▇▇▇▇▇▇▇▇ School Road Gaithersburg
20.02 U-Haul SAC MSMC U-Haul Ctr South Capitol St ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
20.03 U-Haul SAC MSMC U-Haul Center Of North Plano ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Plano
20.04 U-Haul SAC MSMC U-Haul Ctr Az Ave & ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ Chandler
20.05 U-Haul SAC MSMC U-Haul Town & Cntry/W Waters ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
20.06 U-Haul SAC MSMC U-Haul Center Of Douglasvlle ▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
20.07 U-Haul SAC MSMC U-Haul Center Of Tel-Wick ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
20.08 U-Haul SAC MSMC U-Haul Center Of Bolingbrook ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
20.09 U-Haul SAC MSMC U-Haul Center River Valley ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
26 1 05-21892 MSMC Sunset Shopping Center ▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Corvallis
40 1 Various MSMC York Tech Institute Portfolio Various Various
40.01 05-22907 MSMC York Technical Institute ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ - ▇▇▇▇
40.02 05-22503 MSMC York Technical Institute 3050 Hempland Road East Hempfield
Portfolio - Lancaster
56 1 05-21947 MSMC Coral Beach Motel ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
69 1 05-21323 MSMC Quebec Square ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 7357 & Denver
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
71 1 05-20984 MSMC Winter ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇ 05-22372 MSMC Holiday Inn Suites - Peachtree City ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
79 1 05-21500 MSMC Walgreens - Plymouth ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇ ▇▇) Plymouth
83 1 05-21249 MSMC Sportsman Warehouse Fargo ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Fargo
96 1 05-21295 MSMC Quality Inn - Columbus ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Columbus
101 1 05-22429 MSMC Linden Self Storage ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Indianola
103 1 05-22215 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Kirkland
116 1 04-18403 MSMC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CONTROL NUMBER OF
NUMBER STATE ZIP CODE COUNTY PROPERTIES PROPERTY TYPE
-----------------------------------------------------------------------------------------------
14 Pennsylvania ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Oakland 1 Multifamily
19 Various Various Various 19 Self Storage
19.01 Texas 75052 Tarrant Self Storage
19.02 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Hartford Self Storage
19.03 Pennsylvania 19057 Bucks Self Storage
19.04 Texas 77066 ▇▇▇▇▇▇ Self Storage
19.05 California 94063 San Mateo Self Storage
19.06 California 90262 Los Angeles Self Storage
19.07 ▇▇▇▇▇▇ ▇▇▇▇▇ Anchorage Self Storage
19.08 Ohio 43232 Franklin Self Storage
19.09 North Carolina 28540 Onslow Self Storage
19.10 Washington 98665 ▇▇▇▇▇ Self Storage
19.11 Indiana 46227 ▇▇▇▇▇▇ Self Storage
19.12 Washington 98144 King Self Storage
19.13 Ohio 43055 Licking Self Storage
19.14 Oregon 97266 Clackamas Self Storage
19.15 District of Columbia 20002 District of Columbia Self Storage
19.16 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ King Self Storage
19.17 Ohio 45504 ▇▇▇▇▇ Self Storage
19.18 Arizona 86326 Yavapai Self Storage
19.19 Indiana 46219 ▇▇▇▇▇▇ Self Storage
20 Various Various Various 9 Self Storage
20.01 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Self Storage
20.02 District of Columbia 20003 District of Columbia Self Storage
20.03 Texas 75025 Collin Self Storage
20.04 Arizona 85248 Maricopa Self Storage
20.05 Florida 33634 Hillsborough Self Storage
20.06 Georgia 30135 ▇▇▇▇▇▇▇ ▇▇▇▇ Storage
20.07 Michigan 48180 ▇▇▇▇▇ Self Storage
20.08 Illinois 60440 Will Self Storage
20.09 Ohio 43130 Fairfield Self Storage
26 Oregon 97333 ▇▇▇▇▇▇ 1 Anchored Retail
40 Pennsylvania Various Various 2 Office
40.01 Pennsylvania 17402 Lancaster Office
40.02 Pennsylvania 17601 ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Volusia 1 Hospitality
69 Colorado 80207 Denver 1 Anchored Retail
71 Florida 33880 Polk 1 Manufactured Housing
72 Georgia 30269 Fayette 1 Hospitality
79 Massachusetts 02360 Plymouth 1 Anchored Retail
83 North Dakota 58103 Cass 1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1 Hospitality
101 Iowa 50125 ▇▇▇▇▇▇ 1 Self Storage
103 Washington 98034 King 1 Industrial/Warehouse
116 New York 11413 Queens 1 Unanchored Retail
CONTROL CROSS ORIGINAL
NUMBER COLLATERALIZED (2) RELATED GROUPS BALANCE ($)
--------------------------------------------------------
14 31,000,000
15 28,150,000
19 24,130,126
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
19.10
19.11
19.12
19.13
19.14
19.15
19.16
19.17
19.18
19.19
20 22,682,607
20.01
20.02
20.03
20.04
20.05
20.06
20.07
20.08
20.09
26 18,500,000
40 10,640,000
40.01
40.02
56 6,800,000
69 5,575,000
71 5,400,000
72 5,250,000
79 4,600,000
83 4,500,000
96 3,500,000
101 2,880,000
103 2,800,000
116 1,300,000
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
B-1
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
B-2
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan Seller and his genuine
signature is set forth opposite his name:
------------------------- ------------------------ -------------------------
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of January 25, 2006
(the "Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial
Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at
the respective times of such signing and delivery, duly authorized or appointed
to execute such documents in such capacity, and the signatures of such persons
or facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
January 31, 2006.
By:
--------------------------------
Name:
Title:
I, _____________________________, _______________________________, hereby
certify that ____________________________ is a duly elected or appointed, as the
case may be, qualified and acting _________________________ of the Mortgage Loan
Seller and that the signature appearing above is his or her genuine signature.
C-1-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
January 31, 2006.
By:
--------------------------------
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
In connection with the execution and delivery by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of January 25, 2006 (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 31st day of January, 2006.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
C-2-1