[EXECUTION COPY]
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"),
is dated and
effective as of December 21, 2004, 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
December 21, 2004, between the Purchaser and GACC and (ii) Morgan
Stanley
Mortgage Capital, Inc. ("MSMC"), pursuant to, and for the
consideration
described in, the Mortgage Loan Purchase Agreement, dated as of
December 21,
2004 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 McGraw-Hill 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
December 1, 2004
(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, Midland
Loan Services,
Inc., as special servicer (in such capacity, the "Special
Servicer"), LaSalle
Bank National Association, as trustee (the "Trustee") and ABN AMRO
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-AB, Class A-5, Class X-2, Class A-J,
Class B,
Class C and Class D Certificates to Morgan Stanley & Co.
Incorporated, Deutsche
Bank Securities Inc., GMAC Commercial Holding Capital Markets Corp.
and Goldman,
Sachs & Co. (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
Morgan Stanley & Co. Incorporated and Deutsche Bank Securities
Inc. (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
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 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 December
21, 2004 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 December 2004. 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
$531,088,095.96 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
2
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, 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
3
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
4
state securities law relating to or in connection with the
issuance of the
Certificates or require registration or qualification pursuant
to the
Securities Act or any state securities law of any Certificate
not otherwise
intended to be a Registered Certificate. In addition, the
Mortgage Loan
Seller will not act, nor has it authorized or will it
authorize any person
to act, in any manner set forth in the foregoing sentence with
respect to
any of the Certificates or interests therein. For purposes of
this
paragraph 4(b)(viii), the term "similar security" shall be
deemed to
include, without limitation, any security evidencing or, upon
issuance,
that would have evidenced an interest in the Mortgage Loans or
the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the
Mortgaged
Properties related to such Mortgage Loans, the information set
forth on the
pages between pages A-20 and A-24, 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 (w)
the Mortgage Loan Seller or (x) the Mortgage Loans 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) and or set forth on Annex A 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 material fact or (in the case of the
Memorandum, when
read together with the other information specified therein as
being
available for review by investors) omit to state any material
fact
necessary to make the statements therein, in light of the
circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or
filing with or notice to, any governmental authority or court
is required,
under federal or state law (including, with respect to any
bulk sale laws),
for the execution, delivery and performance of or compliance
by the
Mortgage Loan Seller with this Agreement, or the consummation
by the
Mortgage Loan Seller of any transaction contemplated hereby,
other than (1)
the filing or recording of financing statements, instruments
of assignment
and other similar documents necessary in connection with
Mortgage Loan
Seller's sale of the Mortgage Loans to the Purchaser, (2) such
consents,
approvals, authorizations, qualifications, registrations,
filings or
notices as have been obtained or made and (3) where the lack
of such
consent, approval, authorization, qualification, registration,
filing or
notice would not have a material adverse effect on the
performance by the
Mortgage Loan Seller under this Agreement.
(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
5
holders of the Certificates), the party discovering such breach
shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby
represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and
in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and
the performance and compliance with the terms of this
Agreement by the
Purchaser, will not violate the Purchaser's organizational
documents or
constitute a default (or an event which, with notice or lapse
of time, or
both, would constitute a default) under, or result in the
breach of, any
material agreement or other instrument to which it is a party
or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to
enter into and
consummate all transactions contemplated by this Agreement,
has duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery
by the Mortgage Loan Seller, constitutes a valid, legal and
binding
obligation of the Purchaser, enforceable against the Purchaser
in
accordance with the terms hereof, subject to (A) applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the
enforcement of creditors' rights generally, and (B) general
principles of
equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its
execution and
delivery of this Agreement and its performance and compliance
with the
terms of this Agreement will not constitute a violation of,
any law, any
order or decree of any court or arbiter or any order,
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
6
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 Orrick, Herrington & Sutcliffe LLP, 666
Fifth Avenue, New
York, New York 10103 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;
7
(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;
(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;
8
(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 (w) the
Mortgage Loan
Seller or (x) the Mortgage Loans or any or all of the Mortgaged
Properties
related thereto contained in the Prospectus Supplement or the
Memorandum, or
Annex A and/or Annex B to the Prospectus Supplement (exclusive of
the Loan
Detail), and such information represents a restatement or
aggregation of
information contained in the Loan Detail; or (iii) any such untrue
statement or
alleged untrue statement or omission or alleged omission is with
respect to
information regarding (w) the Mortgage Loan Seller or (x) the
Mortgage Loans
contained in the Prospectus Supplement or the Memorandum, or Annex
A or Annex B
to the Prospectus Supplement (exclusive of the Loan Detail), and
such
information does not represent a restatement or aggregation of
information
contained in the Loan Detail; (iv) 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
9
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.
333-115244 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 May 26, 2004, as supplemented by
the prospectus
supplement dated December 7, 2004 (the "Prospectus Supplement"),
relating to the
Registered Certificates; "Memorandum" shall mean the private
placement
memorandum dated December 7, 2004, 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 Kidder,
Peabody Acceptance, Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder
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 "Kidder 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 Kidder
Letters, the "No-Action Letters"). The mortgage loan information
and information
related thereto contained on the diskette attached to any ABS Term
Sheets or
Computational Materials is referred to herein as the "Term Sheet
Diskette" and
the tape provided by the Mortgage Loan Seller that was used to
create the Term
Sheet Diskette is referred to herein as the "Term Sheet Master
Tape." References
herein to ABS Term Sheets or Computational Materials shall include
any Term
Sheet Diskette provided therewith. As used herein "Asset Summary"
shall mean any
summary of features of such Mortgage Loan and the related Mortgaged
Property
prepared by or on behalf of the Mortgage Loan Seller that were
delivered to any
investor of the Private Certificates; "Third Party Report" shall
mean
appraisals, market studies, environmental, accounting, engineering
and other
reports, studies or surveys concerning any of the Mortgage Loans or
related
Mortgaged Properties.
(b) Promptly after receipt by any person entitled to
indemnification
under this Section 9 (each, an "indemnified party") of notice of
the
commencement of any action, such indemnified party will, if a claim
in respect
thereof is to be made against the Mortgage Loan Seller (the
"indemnifying
party") under this Section 9, notify the indemnifying party in
writing of the
commencement thereof; but the omission to notify the indemnifying
party will not
relieve it from any liability that it may have to any indemnified
party
otherwise than under this Section 9. In case any such action is
brought against
any indemnified party and it notifies the indemnifying party of the
commencement
thereof, the indemnifying party will be entitled to participate
therein, and to
the extent that it may elect by written notice delivered to the
indemnified
party promptly after receiving the aforesaid notice from such
indemnified party,
to assume the defense thereof, with counsel satisfactory to such
indemnified
party; provided, however, that if the defendants in any such action
include both
the indemnified party and the indemnifying party and the
indemnified party or
parties shall have reasonably concluded that there may be legal
defenses
available to it or them and/or other indemnified parties that are
10
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 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.
11
(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
200 Witmer Road, Horsham, Pennsylvania 19044-8015, Attention:
Structured Finance
Manager, facsimile no. (215) 328-1775, 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 200 Witmer Road, Horsham, Pennsylvania
19044-8015,
Attention: Structured Finance Manager, facsimile no. (215)
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
12
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.
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
13
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: David Lazarus
|
