EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and
effective as of June 3, 2005, between GMAC Commercial Mortgage
Corporation, as
seller (the "Mortgage Loan Seller" or "GMACCM"), and GMAC
Commercial Mortgage
Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser desires to
purchase,
subject to the terms and conditions set forth below, the
multifamily and
commercial mortgage loans (each, a "Mortgage Loan" and
collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the
"Mortgage Loan Schedule"). Certain other multifamily and commercial
mortgage
loans (the "Other Mortgage Loans") will be purchased by the
Purchaser from (i)
German American Capital Corporation ("GACC"), pursuant to, and for
the
consideration described in, the Mortgage Loan Purchase Agreement,
dated as of
June 3, 2005, between the Purchaser and GACC and (ii) Morgan
Stanley Mortgage
Capital Inc. ("MSMC"), pursuant to, and for the consideration
described in, the
Mortgage Loan Purchase Agreement, dated as of June 3, 2005 between
the Purchaser
and MSMC. The Mortgage Loan Seller, GACC and MSMC are collectively
referred to
as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred,
together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund")
to be formed
by the Purchaser, beneficial ownership of which will be evidenced
by a series of
mortgage pass-through certificates (the "Certificates"). Certain
classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard
& Poor's Ratings
Services, a division of The 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
June 1, 2005
(the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such
capacity, the
"Master Servicer") and serviced whole loan paying agent, GMAC
Commercial
Mortgage Corporation, as special servicer (in such capacity, the
"Special
Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee") and
ABN AMRO Bank N.V., as fiscal agent. Capitalized terms not
otherwise defined
herein have the meanings assigned to them in the Pooling and
Servicing Agreement
as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-1A, Class A-2,
Class A-3, Class A-4, Class A-5, Class X-2, Class A-M, Class A-J,
Class B, Class
C and Class D Certificates to Deutsche Bank Securities Inc., Morgan
Stanley &
Co. Incorporated and GMAC Commercial Holding Capital Markets Corp.
(together,
the "Underwriters"), pursuant to an underwriting agreement dated
the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the
Class X-1,
Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N,
Class O, Class P and Class Q Certificates to Deutsche Bank
Securities Inc. and
Morgan Stanley & Co. Incorporated, pursuant to a certificate
purchase agreement,
dated the date
hereof (the "Certificate Purchase Agreement"). The Purchaser
intends to sell the
Class W, Class R-I, Class R-II and Class R-III Certificates to a
Qualified
Institutional Buyer (in such capacity, an "Initial Purchaser"). The
Class X-1,
Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N,
Class O, Class P, Class Q, Class W, Class R-I, Class R-II and Class
R-III
Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser agrees to
purchase, the
Mortgage Loans. The purchase and sale of the Mortgage Loans shall
take place on
June 16, 2005 or such other date as shall be mutually acceptable to
the parties
hereto (the "Closing Date"). The "Cut-off Date" with respect to any
Mortgage
Loan is the Due Date for such Mortgage Loan in June 2005. As of the
close of
business on their respective Cut-off Dates (which Cut-off Dates may
occur after
the Closing Date), the Mortgage Loans will have an aggregate
principal balance
(the "Aggregate Cut-off Date Balance"), after application of all
payments of
principal due thereon on or before such date, whether or not
received, of
$558,884,260 subject to a variance of plus or minus 5%. The
purchase price for
the Mortgage Loans shall be determined by the parties pursuant to
an agreed upon
term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the
Mortgage Loan Seller of the purchase price referred to in Section 1
hereof
(exclusive of any applicable holdback for transaction expenses),
the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and
otherwise convey to
the Purchaser, without recourse, all the right, title and interest
of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the
Mortgage
Loan Schedule as of such date, including all interest and principal
received or
receivable by the Mortgage Loan Seller on or with respect to the
Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with
all of the
Mortgage Loan Seller's right, title and interest in and to the
proceeds of any
related title, hazard or other insurance policies and any escrow,
reserve or
other comparable accounts related to the Mortgage Loans. The
Purchaser shall be
entitled to (and, to the extent received by or on behalf of the
Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be
delivered to or at
the direction of the Purchaser) all scheduled payments of principal
and interest
due on the Mortgage Loans after the Cut-off Date for such Mortgage
Loan, and all
other recoveries of principal and interest collected thereon after
such Cut-off
Date. All scheduled payments of principal and interest due thereon
on or before
the Cut-off Date for each Mortgage Loan and collected after such
Cut-off Date
shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment
pursuant to
subsection (a) above, the Mortgage Loan Seller acknowledges that
the Depositor
has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby
agrees, to deliver the Mortgage File (as such term is defined in
the Pooling and
Servicing Agreement) to the Trustee, and otherwise comply with the
requirements
of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and
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Servicing Agreement, provided that whenever the term Mortgage File
is used to
refer to documents actually received by the Purchaser or the
Trustee, such term
shall not be deemed to include such documents and instruments
required to be
included therein unless they are actually so received.
(c) The Mortgage Loan Seller's records will reflect the transfer of
the
Mortgage Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be
undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has
conducted or has
failed to conduct any partial or complete examination of the
Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to
pursue any
remedy available in equity or at law for a breach of the Mortgage
Loan Seller's
representations, warranties and covenants set forth in or
contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the
Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(or as of
such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser and its
successors and
assigns (including, without limitation, the Trustee and the holders
of the
Certificates), each of the representations and warranties set forth
in Exhibit B
with respect to the Mortgage Loans, with such changes or
modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized,
validly
existing and in good standing under the laws of the State of
California,
and is in compliance with the laws of each State in which any
Mortgaged
Property is located to the extent necessary to ensure the
enforceability of
each Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan
Seller, and the performance and compliance with the terms of this
Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan
Seller's
organizational documents or constitute a default (or an event
which, with
notice or lapse of time, or both, would constitute a default)
under, or
result in the breach of, any material agreement or other instrument
to
which it is a party or which is applicable to it or any of its
assets, in
each case which materially and adversely affect the ability of the
Mortgage
Loan Seller to carry out the transactions contemplated by this
Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage
Loan Seller in accordance with the terms hereof, subject to (A)
applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting
the enforcement of creditors' rights generally, (B) general
principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy
considerations
underlying the securities laws, to the extent that such public
policy
considerations limit the enforceability of the provisions of this
Agreement
that purport to provide indemnification for securities laws
liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its
execution
and delivery of this Agreement and its performance and compliance
with the
terms of this Agreement will not constitute a violation of, any
law, any
order or decree of any court or arbiter or any order, regulation or
demand
of any federal, state or local governmental or regulatory
authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage
Loan
Seller has received service of process or, to the best of the
Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller the
outcome
of which, in the Mortgage Loan Seller's good faith and reasonable
judgment,
could reasonably be expected to prohibit the Mortgage Loan Seller
from
entering into this Agreement or materially and adversely affect the
ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser,
the
Underwriters, the Initial Purchasers and their respective
affiliates, that
may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans or the consummation of any of the other
transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor anyone acting on its
behalf has (A) offered, pledged, sold, disposed of or otherwise
transferred
any Certificate, any interest in any Certificate or any other
similar
security to any person in any manner, (B) solicited any offer to
buy or to
accept a pledge, disposition or other transfer of any Certificate,
any
interest in any Certificate or any other similar security from any
person
in any manner, (C) otherwise approached or negotiated with respect
to any
Certificate, any interest in any Certificate, or any other similar
security
with any person in any manner, (D) made any general solicitation by
means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar
security or (E)
taken any other action, that (in the case of any of the acts
described in
clauses (A) through (E) above) would constitute or result in a
violation of
the Securities Act or any state securities law relating to or in
connection
with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state
securities law of
any Certificate not otherwise intended to be a Registered
Certificate. In
addition,
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the Mortgage Loan Seller will not act, nor has it authorized or
will it
authorize any person to act, in any manner set forth in the
foregoing
sentence with respect to any of the Certificates or interests
therein. For
purposes of this paragraph 4(b)(viii), the term "similar security"
shall be
deemed to include, without limitation, any security evidencing or,
upon
issuance, that would have evidenced an interest in the Mortgage
Loans or
the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Mortgaged
Properties related to such Mortgage Loans, the information set
forth
between pages A-22 and A-23 inclusive of Annex A to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to
the extent
consistent therewith, the information set forth on the diskette
attached to
the Prospectus Supplement and the accompanying prospectus (the
"Diskette"),
is true and correct in all material respects. Insofar as it relates
to the
Mortgage Loans (other than the Windsor Hospitality Portfolio Whole
Loan (as
defined in the Prospectus Supplement)) and the Mortgaged Properties
related
thereto and/or the Mortgage Loan Seller and does not represent a
restatement or aggregation of the information on the Loan Detail,
the
information set forth in the Prospectus Supplement and the
Memorandum (as
defined in Section 9) under the headings "Summary of Series 2005-C1
Transaction--The Mortgage Pool," "--Geographic Concentrations of
the
Mortgaged Properties," "--Property Types," "--Prepayment or Call
Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage
Loans,"
"Risk Factors," and "Description of the Mortgage Pool" or set forth
on
Annex A and/or Annex B to the Prospectus Supplement and (to the
extent it
contains information consistent with that on such Annex A) set
forth on the
Diskette, does not contain any untrue statement of a material fact
or (in
the case of the Memorandum, when read together with the other
information
specified therein as being available for review by investors) omit
to state
any material fact necessary to make the statements therein, in
light of the
circumstances under which they were made, not misleading. Insofar
as it
relates to the Windsor Hospitality Portfolio Whole Loan and the
Mortgaged
Property related thereto and does not represent a restatement or
aggregation of the information on the Loan Detail, the information
set
forth in the Prospectus Supplement and the Memorandum under the
headings
"Summary of Series 2005-C1 Transaction--The Mortgage Pool,"
"--Geographic
Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors,"
"Description of
the Mortgage Pool," "Servicing of the Mortgage Loans," "The Pooling
and
Servicing Agreement," and/or "Description of the Certificates" or
set forth
on Annex A and/or Annex B to the Prospectus Supplement and (to the
extent
it contains information consistent with that on such Annex A) set
forth on
the Diskette, does not contain any untrue statement of a material
fact or
(in the case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors)
omit to state any material fact necessary to make the statements
therein,
in light of the circumstances under which they were made, not
misleading.
(x) No consent, approval, authorization or order of, registration
or
filing with or notice to, any governmental authority or court is
required,
under federal or state law (including, with respect to any bulk
sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the
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consummation by the Mortgage Loan Seller of any transaction
contemplated
hereby, other than (1) the filing or recording of financing
statements,
instruments of assignment and other similar documents necessary in
connection with Mortgage Loan Seller's sale of the Mortgage Loans
to the
Purchaser, (2) such consents, approvals, authorizations,
qualifications,
registrations, filings or notices as have been obtained or made and
(3)
where the lack of such consent, approval, authorization,
qualification,
registration, filing or notice would not have a material adverse
effect on
the performance by the Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any
of the
representations and warranties made pursuant to and set forth in
subsection (b)
above which materially and adversely affects the interests of the
Purchaser or a
breach of any of the representations and warranties made pursuant
to subsection
(a) above and set forth in Exhibit B, which materially and
adversely affects the
value of any Mortgage Loan or the interests therein of the
Purchaser or its
successors and assigns (including, without limitation the Trustee
and the
holders of the Certificates), the party discovering such breach
shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement
by the
Purchaser, will not violate the Purchaser's organizational
documents or
constitute a default (or an event which, with notice or lapse of
time, or
both, would constitute a default) under, or result in the breach
of, any
material agreement or other instrument to which it is a party or
which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal
and
binding obligation of the Purchaser, enforceable against the
Purchaser in
accordance with the terms hereof, subject to (A) applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general
principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the
terms of this Agreement will not
6
constitute a violation of, any law, any order or decree of any
court or
arbiter or any order, regulation or demand of any federal, state or
local
governmental or regulatory authority, which violation, in the
Purchaser's
good faith and reasonable judgment, is likely to affect materially
and
adversely either the ability of the Purchaser to perform its
obligations
under this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit
the
Purchaser from entering into this Agreement or, in the Purchaser's
good
faith and reasonable judgment, is likely to materially and
adversely affect
either the ability of the Purchaser to perform its obligations
under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective
affiliates, that
may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans or the consummation of any of the
transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration
or filing with, or notice to, any governmental authority or court
is
required, under federal or state law, for the execution, delivery
and
performance of or compliance by the Purchaser with this Agreement,
or the
consummation by the Purchaser of any transaction contemplated
hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and
(2)
where the lack of such consent, approval, authorization,
qualification,
registration, filing or notice would not have a material adverse
effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the
representations and warranties set forth above which materially and
adversely
affects the interests of the Mortgage Loan Seller, the party
discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02
and 2.03 of the Pooling and Servicing Agreement, including, but not
limited to,
any obligation to repurchase or substitute Mortgage Loans in
respect of any
Material Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be
held at the offices of 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:
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(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing
Date,
and the Aggregate Cut-off Date Balance shall be within the range
permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"),
in such forms as are agreed upon and reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories
as
required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Trustee, the Purchaser or the Purchaser's designee, as the case
may be,
all documents and funds required to be so delivered pursuant to
Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing
Files performed by or on behalf of the Purchaser pursuant to
Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with,
and the Mortgage Loan Seller shall have the ability to comply with
all
terms and conditions and perform all duties and obligations
required to be
complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to
this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
C-1
hereto, executed by the Secretary or an assistant secretary of the
Mortgage
Loan Seller, and dated the Closing Date, and upon which the
Purchaser and
each Underwriter may rely, attaching thereto as exhibits the
organizational
documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan
Seller
from the Secretary of State for the State of California, dated not
earlier
than 30 days prior to the Closing Date;
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(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or
authorized
signatory of the Mortgage Loan Seller and dated the Closing Date,
and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser and subject
to such
reasonable assumptions and qualifications as may be requested by
counsel
for the Mortgage Loan Seller and acceptable to counsel for the
Purchaser,
dated the Closing Date and addressed to the Purchaser and each
Underwriter;
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the
issuance
of the Certificates, each of which shall include the Purchaser and
each
Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser
may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless
the
Purchaser, its officers and directors and each person, if any, who
controls the
Purchaser within the meaning of either Section 15 of the Securities
Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange
Act"), against any and all losses, claims, damages or liabilities,
joint or
several, to which they or any of them may become subject under the
Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue
statement or alleged untrue statement of a material fact contained
in the
Prospectus Supplement, the Memorandum, the Diskette, any Asset
Summary (as
defined hereinafter) or, insofar as they are required to be filed
as part of the
Registration Statement pursuant to the No-Action Letters, any
Computational
Materials or ABS Term Sheets with respect to the Registered
Certificates, or in
any revision or amendment thereof or supplement thereto, or arise
out of or are
based upon the omission or alleged omission (in the case of any
such
Computational Materials, ABS Term Sheets or any Asset Summary, when
read in
conjunction with the Prospectus and, in the case of the Memorandum,
when read
together with the other information specified therein as being
available for
review by investors) to state therein a material fact required to
be stated
therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading; but only
if and to the
extent that (i) any such untrue statement or alleged untrue
statement is with
respect to information regarding the Mortgage Loans contained in
the Loan Detail
or, to the extent consistent therewith, the Diskette or contained
in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master
Tape; or
(ii) any such untrue statement or alleged untrue statement or
omission or
alleged omission is with respect to information regarding the
Mortgage Loan
Seller, the Mortgage Loans (other than the Windsor Hospitality
Portfolio Whole
Loan (as defined in the Prospectus Supplement)) or the Mortgaged
Properties
related thereto contained in the Prospectus Supplement or the
Memorandum under
the headings "Summary of Series 2005-C1 Transaction--The Mortgage
Pool,"
"--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment
Terms of the Mortgage Loans," "Risk Factors," and/or "Description
of the
Mortgage Pool" or contained on Annex A and/or Annex B to the
Prospectus
Supplement (exclusive of the Loan Detail) (provided that with
respect to
information set forth in Annex B specifically attributed to any
appraisal for
the related Mortgaged Property, only if such information is
misstated in Annex
B); or (iii) any such untrue statement or alleged untrue statement
or omission
or alleged omission is with respect to information regarding the
Windsor
Hospitality Portfolio Whole Loan (as defined in the Prospectus
Supplement) or
the Mortgaged Property related thereto contained in the Prospectus
Supplement or
the Memorandum under the headings "Summary of Series 2005-C1
Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged
9
Properties," "--Property Types," "--Prepayment or Call Protection
Provided by
the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors,"
"Description of the Mortgage Pool," "Servicing of the Mortgage
Loans," "The
Pooling and Servicing Agreement," and/or "Description of the
Certificates" or
contained on Annex A and/or Annex B to the Prospectus Supplement
(exclusive of
the Loan Detail) (provided that with respect to information set
forth in Annex B
specifically attributed to any appraisal for the related Mortgaged
Property,
only if such information is misstated in Annex B); or (iv) such
untrue
statement, alleged untrue statement, omission or alleged omission
arises out of
or is based upon a breach of the representations and warranties of
the Mortgage
Loan Seller set forth in or made pursuant to Section 4; or (v) any
untrue
statement or alleged untrue statement arises out of or is with
respect to any
Asset Summary and such untrue statement or alleged untrue statement
does not
relate to information from a Third Party Report, except to the
extent that any
such information provided in reliance upon a Third Party Report is
misstated in
such Asset Summary; provided, that the indemnification provided by
this Section
9 shall not apply to the extent that such untrue statement of a
material fact or
omission of a material fact necessary to make the statements made,
in light of
the circumstances in which they were made, not misleading, was made
as a result
of an error in the manipulation of, or calculations based upon, the
Loan Detail.
This indemnity agreement will be in addition to any liability which
the Mortgage
Loan Seller may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-123974 filed by the Purchaser on Form S-3, including without
limitation
exhibits thereto and information incorporated therein by reference;
"Prospectus"
shall mean the prospectus dated April 26, 2005, as supplemented by
the
prospectus supplement dated June 3, 2005 (the "Prospectus
Supplement"), relating
to the Registered Certificates; "Memorandum" shall mean the private
placement
memorandum dated June 3, 2005, relating to the Non-Registered
Certificates;
"Computational Materials" shall have the meaning assigned thereto
in the
no-action letter dated May 20, 1994 issued by the Division of
Corporation
Finance of the Securities and Exchange Commission (the
"Commission") to 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
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the tape provided by the Mortgage Loan Seller that was used to
create the Term
Sheet Diskette is referred to herein as the "Term Sheet Master
Tape." References
herein to ABS Term Sheets or Computational Materials shall include
any Term
Sheet Diskette provided therewith. As used herein "Asset Summary"
shall mean any
summary of features of such Mortgage Loan and the related Mortgaged
Property
prepared by or on behalf of the Mortgage Loan Seller that were
delivered to any
investor of the Private Certificates; "Third Party Report" shall
mean
appraisals, market studies, environmental, accounting, engineering
and other
reports, studies or surveys concerning any of the Mortgage Loans or
related
Mortgaged Properties.
(b) Promptly after receipt by any person entitled to
indemnification under
this Section 9 (each, an "indemnified party") of notice of the
commencement of
any action, such indemnified party will, if a claim in respect
thereof is to be
made against the Mortgage Loan Seller (the "indemnifying party")
under this
Section 9, notify the indemnifying party in writing of the
commencement thereof;
but the omission to notify the indemnifying party will not relieve
it from any
liability that it may have to any indemnified party otherwise than
under this
Section 9. In case any such action is brought against any
indemnified party and
it notifies the indemnifying party of the commencement thereof, the
indemnifying
party will be entitled to participate therein, and to the extent
that it may
elect by written notice delivered to the indemnified party promptly
after
receiving the aforesaid notice from such indemnified party, to
assume the
defense thereof, with counsel satisfactory to such indemnified
party; provided,
however, that if the defendants in any such action include both the
indemnified
party and the indemnifying party and the indemnified party or
parties shall have
reasonably concluded that there may be legal defenses available to
it or them
and/or other indemnified parties that are different from or
additional to those
available to the indemnifying party, the indemnified party or
parties shall have
the right to select separate counsel to assert such legal defenses
and to
otherwise participate in the defense of such action on behalf of
such
indemnified party or parties. Upon receipt of notice from the
indemnifying party
to such indemnified party of its election to assume the defense of
such action
and approval by the indemnified party of counsel, which approval
will not be
unreasonably withheld, the indemnifying party will not be liable
for any legal
or other expenses subsequently incurred by such indemnified party
in connection
with the defense thereof, unless: (i) the indemnified party shall
have employed
separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the preceding sentence (it being
understood,
however, that the indemnifying party shall not be liable for the
expenses of
more than one separate counsel, approved by the Purchaser and the
indemnifying
party, representing all the indemnified parties under Section 9(a)
who are
parties to such action), (ii) the indemnifying party shall not have
employed
counsel reasonably satisfactory to the indemnified party to
represent the
indemnified party within a reasonable time after notice of
commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel
for the indemnified party at the expense of the indemnifying party;
and except
that, if clause (i) or (iii) is applicable, such liability shall
only be in
respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to
be
unavailable to an indemnified party on grounds of policy or
otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party,
shall
contribute to the amount paid or payable by such indemnified party
as a result
of such losses, claims, damages or liabilities, in such proportion
as is
appropriate to reflect the
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relative fault of the indemnified and indemnifying parties in
connection with
the statements or omissions which resulted in such losses, claims,
damages or
liabilities, as well as any other relevant equitable
considerations. The
relative fault of the indemnified and indemnifying parties shall be
determined
by reference to, among other things, whether the untrue or alleged
untrue
statement of a material fact or the omission or alleged omission to
state a
material fact relates to information supplied by such parties.
(d) The Purchaser and the Mortgage Loan Seller agree that it would
not be
just and equitable if contribution pursuant to Section 9(c) were
determined by
pro rata allocation or by any other method of allocation that does
not take
account of the considerations referred to in Section 9(c) above.
The amount paid
or payable by an indemnified party as a result of the losses,
claims, damages
and liabilities referred to in this Section 9 shall be deemed to
include,
subject to the limitations set forth above, any legal or other
expenses
reasonably incurred by such indemnified party in connection with
investigating
or defending any such action or claim, except where the indemnified
party is
required to bear such expenses pursuant to this Section 9, which
expenses the
indemnifying party shall pay as and when incurred, at the request
of the
indemnified party, to the extent that the indemnifying party will
be ultimately
obligated to pay such expenses. If any expenses so paid by the
indemnifying
party are subsequently determined to not be required to be borne by
the
indemnifying party hereunder, the party that received such payment
shall
promptly refund the amount so paid to the party which made such
payment. No
person guilty of fraudulent misrepresentation (within the meaning
of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9
shall remain operative and in full force and effect regardless of
(i) any
termination of this Agreement, (ii) any investigation made by any
indemnified
party and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be
borne
by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in
writing
and shall be deemed to have been duly given if personally delivered
to or
mailed, by registered mail, p
