[EXECUTION COPY]
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"),
is dated and
effective as of December 21, 2004, between German American Capital
Corporation,
as Mortgage Loan Seller (the "Mortgage Loan Seller" or "GACC") and
GMAC
Commercial Mortgage Securities, Inc., as purchaser (the
"Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer
and
otherwise convey to the Purchaser, and the Purchaser desires to
purchase,
subject to the terms and conditions set forth below, the
multifamily and
commercial mortgage loans (the "Mortgage Loans") identified on the
schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule"). Certain
other
multifamily and commercial mortgage loans (the "Other Mortgage
Loans") will be
purchased by the Purchaser from (i) GMAC Commercial Mortgage
Corporation
("GMACCM"), pursuant to, and for the consideration described in,
the Mortgage
Loan Purchase Agreement, dated as of December 21, 2004, between the
Purchaser
and GMACCM 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, GMACCM and MSMC are collectively referred to as the
"Mortgage Loan
Sellers."
It is expected that the Mortgage Loans will be
transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund")
to be formed
by the Purchaser, beneficial ownership of which will be evidenced
by a series of
mortgage pass-through certificates (the "Certificates"). Certain
classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard
& Poor's Ratings
Services, a division of The McGraw-Hill Companies (together, the
"Rating
Agencies"). Certain classes of the Certificates (the "Registered
Certificates")
will be registered under the Securities Act of 1933, as amended
(the "Securities
Act"). The Trust Fund will be created and the Certificates will be
issued
pursuant to a pooling and servicing agreement to be dated as of
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
Bank N.V. as
fiscal agent. Capitalized terms not otherwise defined herein have
the meanings
assigned to them in the Pooling and Servicing Agreement as in
effect on the
Closing Date.
The Purchaser intends to sell the Class A-1, Class A-1A,
Class A-2,
Class A-3, Class A-4, Class A-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, 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 $314,113,225.64 subject to a variance
of plus or
minus 5%. The purchase price for the Mortgage Loans shall be
determined by the
parties pursuant to an agreed upon term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1
hereof
(exclusive of any applicable holdback for transaction expenses),
the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and
otherwise convey to
the Purchaser, without recourse, all the right, title and interest
of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the
Mortgage
Loan Schedule as of such date, including all interest and principal
received or
receivable by the Mortgage Loan Seller on or with respect to the
Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with
all of the
Mortgage Loan Seller's right, title and interest in and to the
proceeds of any
related title, hazard or other insurance policies and any escrow,
reserve or
other comparable accounts related to the Mortgage Loans. The
Purchaser shall be
entitled to (and, to the extent received by or on behalf of the
Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be
delivered to or at
the direction of the Purchaser) all scheduled payments of principal
and interest
due on the Mortgage Loans after the Cut-off Date for such Mortgage
Loan, and all
other recoveries of principal and interest collected thereon after
such Cut-off
Date. All scheduled payments of principal and interest due thereon
on or before
the Cut-off Date for each Mortgage Loan and collected after such
Cut-off Date
shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's
assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that
the
Depositor has directed the Mortgage Loan Seller, and the Mortgage
Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is
defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise
comply with the
requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the
Pooling and
Servicing Agreement, provided that whenever the term Mortgage File
is used to
refer to documents
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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
Maryland, and is in compliance with the laws of each State
in which any
Mortgaged Property is located to the extent necessary to
ensure the
enforceability of each Mortgage Loan and to perform its
obligations
under this Agreement.
(ii) The execution and delivery of this Agreement
by the
Mortgage Loan Seller, and the performance and compliance
with the terms
of this Agreement by the Mortgage Loan Seller, will not
violate the
Mortgage Loan Seller's organizational documents or
constitute a default
(or an event which, with notice or lapse of time, or both,
would
constitute a default) under, or result in the breach of,
any material
agreement or other instrument to which it is a party or
which is
applicable to it or any of its assets, in each case which
materially
and adversely affect the ability of the Mortgage Loan
Seller to carry
out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power
and
authority to enter into and consummate all transactions
contemplated by
this Agreement, has duly authorized the execution,
delivery and
performance of this Agreement, and has duly executed and
delivered this
Agreement.
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(iv) This Agreement, assuming due authorization,
execution and
delivery by the Purchaser, constitutes a valid, legal and
binding
obligation of the Mortgage Loan Seller, enforceable
against the
Mortgage Loan Seller in accordance with the terms hereof,
subject to
(A) applicable bankruptcy, insolvency, reorganization,
moratorium and
other laws affecting the enforcement of creditors' rights
generally,
(B) general principles of equity, regardless of whether
such
enforcement is considered in a proceeding in equity or at
law, and (C)
public policy considerations underlying the securities
laws, to the
extent that such public policy considerations limit the
enforceability
of the provisions of this Agreement that purport to
provide
indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation
of, and its
execution and delivery of this Agreement and its
performance and
compliance with the terms of this Agreement will not
constitute a
violation of, any law, any order or decree of any court or
arbiter or
any order, regulation or demand of any federal, state or
local
governmental or regulatory authority, which violation, in
the Mortgage
Loan Seller's good faith and reasonable judgment, is
likely to affect
materially and adversely either the ability of the
Mortgage Loan Seller
to perform its obligations under this Agreement or the
financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to
which the
Mortgage Loan Seller has received service of process or,
to the best of
the Mortgage Loan Seller's knowledge, threatened against
the Mortgage
Loan Seller the outcome of which, in the Mortgage Loan
Seller's good
faith and reasonable judgment, could reasonably be
expected to prohibit
the Mortgage Loan Seller from entering into this Agreement
or
materially and adversely affect the ability of the
Mortgage Loan Seller
to perform its obligations under this Agreement.
(vii) The Mortgage Loan Seller has not dealt with
any broker,
investment banker, agent or other person, other than the
Purchaser, the
Underwriters, the Initial Purchasers and their respective
affiliates,
that may be entitled to any commission or compensation in
connection
with the sale of the Mortgage Loans or the consummation of
any of the
other transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor
anyone acting on
its behalf has (A) offered, pledged, sold, disposed of or
otherwise
transferred any Certificate, any interest in any
Certificate or any
other similar security to any person in any manner, (B)
solicited any
offer to buy or to accept a pledge, disposition or other
transfer of
any Certificate, any interest in any Certificate or any
other similar
security from any person in any manner, (C) otherwise
approached or
negotiated with respect to any Certificate, any interest
in any
Certificate or any other similar security with any person
in any
manner, (D) made any general solicitation by means of
general
advertising or in any other manner with respect to any
Certificate, any
interest in any Certificate or any similar security, or
(E) taken any
other action, that (in the case of any of the acts
described in clauses
(A) through (E) above) would constitute or result in a
violation of the
Securities Act or any state securities law relating to or
in connection
with the issuance of the Certificates or require
registration or
qualification pursuant to the Securities Act or any state
securities
law of any Certificate not otherwise intended to be a
Registered
Certificate. In addition, the
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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,
the
information set forth 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 the Mortgage
Loans (other
than the Strategic Hotel Portfolio Whole Loan (as defined
in the
Prospectus Supplement)) and the Mortgaged Properties
related thereto
and/or the Mortgage Loan Seller and does not represent a
restatement or
aggregation of the information on the Loan Detail, the
information set
forth in the Prospectus Supplement and the Memorandum (as
defined in
Section 9) under the headings "Summary of Series 2004-C3
Transaction--The Mortgage Pool," "--Geographic
Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment
or Call
Protection Provided by the Mortgage Loans," "--Payment
Terms of the
Mortgage Loans," "Risk Factors," and "Description of the
Mortgage Pool"
set forth on Annex A and/or Annex B to the Prospectus
Supplement and
(to the extent it contains information consistent with
that on such
Annex A) set forth on the Diskette, does not contain any
untrue
statement of a material fact or (in the case of the
Memorandum, when
read together with the other information specified therein
as being
available for review by investors) omit to state any
material fact
necessary to make the statements therein, in light of the
circumstances
under which they were made, not misleading. Insofar as it
relates to
the Strategic Hotel Portfolio Whole Loan (as defined in
the Prospectus
Supplement) and the Mortgaged Property related thereto and
does not
represent a restatement or aggregation of the information
on the Loan
Detail, the information set forth in the Prospectus
Supplement and the
Memorandum (as defined in Section 9) under the headings
"Summary of
Series 2004-C3 Transaction--The Mortgage Pool,"
"--Geographic
Concentrations of the Mortgaged Properties," "--Property
Types,"
"--Prepayment or Call Protection Provided by the Mortgage
Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors,"
"Description
of the Mortgage Pool," "Servicing of the Mortgage Loans,"
"The Pooling
and Servicing Agreement," and/or "Description of the
Certificates" or
set forth on Annex A and/or Annex B to the Prospectus
Supplement
(provided, that with respect to the information in Annex
B, "Servicing
of the Mortgage Loans," "The Pooling and Servicing
Agreement" and
"Description of the Certificates," only such portions that
solely
relate to the Strategic Hotel Portfolio Whole Loan) and
(to the extent
it contains information consistent with that on such Annex
A) set forth
on the Diskette, does not contain any untrue statement of
a material
fact or (in the case of the Memorandum, when read together
with the
other information specified therein as being available for
review by
investors) omit to state any material fact necessary to
make the
statements therein, in light of the circumstances under
which they were
made, not misleading
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(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
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
6
equity, regardless of whether such enforcement is
considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its
execution
and delivery of this Agreement and its performance and
compliance with
the terms of this Agreement will not constitute a
violation of, any
law, any order or decree of any court or arbiter or any
order,
regulation or demand of any federal, state or local
governmental or
regulatory authority, which violation, in the Purchaser's
good faith
and reasonable judgment, is likely to affect materially
and adversely
either the ability of the Purchaser to perform its
obligations under
this Agreement or the financial condition of the
Purchaser.
(vi) No litigation is pending or, to the best of
the
Purchaser's knowledge, threatened against the Purchaser
which would
prohibit the Purchaser from entering into this Agreement
or, in the
Purchaser's good faith and reasonable judgment, is likely
to materially
and adversely affect either the ability of the Purchaser
to perform its
obligations under this Agreement or the financial
condition of the
Purchaser.
(vii) The Purchaser has not dealt with any
broker, investment
banker, agent or other person, other than the Mortgage
Loan Seller, the
Underwriters, the Initial Purchasers and their respective
affiliates,
that may be entitled to any commission or compensation in
connection
with the sale of the Mortgage Loans or the consummation of
any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or
order of,
registration or filing with or notice to, any governmental
authority or
court is required, under federal or state law, for the
execution,
delivery and performance of or compliance by the Purchaser
with this
Agreement, or the consummation by the Purchaser of any
transaction
contemplated 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.
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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 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;
(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
Maryland, 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) 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
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that (i) any such untrue statement or alleged untrue statement is
with respect
to information regarding the Mortgage Loans contained in the Loan
Detail or,
to the extent consistent therewith, the Diskette or contained in
the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master
Tape; or
(ii) any such untrue statement or alleged untrue statement or
omission or
alleged omission is with respect to information regarding the
Mortgage Loan
Seller, the Mortgage Loans (other than the Strategic Hotel
Portfolio Whole Loan
(as defined in the Prospectus Supplement)) or the Mortgaged
Properties related
thereto contained in the Prospectus Supplement or the Memorandum
under the
headings "Summary of Series 2004-C3 Transaction--The Mortgage
Pool,"
"--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment
Terms of the Mortgage Loans," "Risk Factors," and/or "Description
of the
Mortgage Pool" or contained on Annex A and/or Annex B to the
Prospectus
Supplement (exclusive of the Loan Detail), and such information
does not
represent a restatement or aggregation of information contained in
the Loan
Detail; or (iii) any such untrue statement or alleged untrue
statement or
omission or alleged omission is with respect to information
regarding the
Strategic Hotel Portfolio Whole Loan (as defined in the Prospectus
Supplement)
or the Mortgaged Property related thereto contained in the
Prospectus Supplement
or the Memorandum under the headings "Summary of Series 2004-C3
Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged
Properties,"
"--Property Types," "--Prepayment or Call Protection Provided by
the Mortgage
Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors,"
"Description of
the Mortgage Pool," "Servicing of the Mortgage Loans," "The Pooling
and
Servicing Agreement," and/or "Description of the Certificates" or
contained on
Annex A and/or Annex B to the Prospectus Supplement (exclusive of
the Loan
Detail) (provided, that with respect to the information in Annex B,
"Servicing
of the Mortgage Loans," "The Pooling and Servicing Agreement" and
"Description
of the Certificates," only such portions that solely relate to the
Strategic
Hotel Portfolio Whole Loan (as defined in the Prospectus
Supplement), and such
information does not represent a restatement or aggregation of
information
contained in the Loan Detail; (iv) such untrue statement, alleged
untrue
statement, omission or alleged omission arises out of or is based
upon a breach
of the representations and warranties of the Mortgage Loan Seller
set forth in
or made pursuant to Section 4; or (v) any untrue statement or
alleged untrue
statement arises out of or is with respect to any Asset Summary and
such untrue
statement or alleged untrue statement does not relate to
information from a
Third Party Report, except to the extent that any such information
provided in
reliance upon a Third Party Report is misstated in such Asset
Summary; provided,
that the indemnification provided by this Section 9 shall not apply
to the
extent that such untrue statement of a material fact or omission of
a material
fact necessary to make the statements made, in light of the
circumstances in
which they were made, not misleading, was made as a result of an
error in the
manipulation of, or calculations based upon, the Loan Detail. This
indemnity
agreement will be in addition to any liability which the Mortgage
Loan Seller
may otherwise have.
"Registration Statement" shall mean the registration
statement No.
333-115244 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;
10
"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
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
11
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 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.
12
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 German
American
Capital Corporation, 60 Wall Street, New York, New York 10005,
Attention: Lainie
Kaye, facsimile no. (212) 797-4489, with a copy to Kevin Blauch,
Latham &
Watkins, 885 Third Avenue, New York, New York 10022, facsimile no.
(212)
751-4864 or to such other address or facsimile number as the
Mortgage Lo
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