EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and
effective as of June 3, 2005 between Morgan Stanley Mortgage
Capital Inc., as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC"), and
GMAC Commercial
Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and
otherwise
convey to the Purchaser, and the Purchaser desires to purchase,
subject to the
terms and conditions set forth below, the multifamily and
commercial mortgage
loans (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 June 3, 2005, between the Purchaser and GMACCM, and
(ii) 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. The Mortgage Loan Seller, GMACCM
and GACC, are
collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred,
together with
the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be
formed by the
Purchaser, beneficial ownership of which will be evidenced by a
series of
mortgage pass-through certificates (the "Certificates"). Certain
classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard
& Poor's Ratings
Services, a division of The 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 (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
W, Class R-I, Class R-II and Class R-III Certificates to a
Qualified Institutional Buyer. 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, 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 $556,936,310, 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
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.
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(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 New
York, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of
each Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan
Seller, and the performance and compliance with the terms of this
Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan
Seller's
organizational documents or constitute a default (or an event
which, with
notice or lapse of time, or both, would constitute a default)
under, or
result in the breach of, any material agreement or other instrument
to
which it is a party or which is applicable to it or any of its
assets, in
each case which materially and adversely affect the ability of the
Mortgage
Loan Seller to carry out the transactions contemplated by this
Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement,
has duly authorized 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
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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 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
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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 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 San Marcos Apartments Whole Loan and
the
College Station Apartments Whole Loan (as defined in the Prospectus
Supplement)), 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
San Marcos Apartments 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," the fourteenth
paragraph in "Description of the Certificates--Subordination;
Allocation of
Losses and Expenses," the third sentence of the second paragraph in
"--P&I
and Servicing Advances" and the thirteenth paragraph in
"--Appraisal
Reductions" (provided, that with respect to the information in the
fourteenth paragraph in "Description of the
Certificates-Subordination;
Allocation of Losses and Expenses," the third sentence of the
second
paragraph in "--P&I and Servicing Advances" and in the
thirteenth paragraph
in "Description of the Certificates-Appraisal Reductions," only
such
portions that solely relate to the related intercreditor agreement
of the
San Marcos Apartments Whole Loan) or as set forth in Annex A to the
Prospectus Supplement or (to the extent it contains information
consistent
with that on such Annex A) 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 College Station
Apartments Whole Loan and the Mortgaged Property related thereto
and does
not
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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," the fifteenth paragraph in
"Description
of the Certificates--Subordination; Allocation of Losses and
Expenses," the
third sentence of the second paragraph in "--P&I and Servicing
Advances"
and the thirteenth paragraph in "--Appraisal Reductions" (provided,
that
with respect to the information in the fifteenth paragraph in
"Description
of the Certificates-Subordination; Allocation of Losses and
Expenses," the
third sentence of the second paragraph in "--P&I and Servicing
Advances"
and in the thirteenth paragraph in "Description of the
Certificates-Appraisal Reductions," only such portions that solely
relate
to the related intercreditor agreement of the College Station
Apartments
Whole Loan) or as set forth in Annex A to the Prospectus Supplement
and (to
the extent it contains information consistent with that on such
Annex A) 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 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.
(xi) 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:
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(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 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
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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;
(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;
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(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 New York, dated not
earlier
than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or
authorized
signatory of the Mortgage Loan Seller and dated the Closing Date,
and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser 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
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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 San Marcos
Apartments
Whole Loan and the College Station Apartments Whole Loan) 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), 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 San Marcos Apartments Whole Loan (as
defined in the
Prospectus Supplement) and 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 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," the fourteenth
paragraph in
"Description of the Certificates--Subordination; Allocation of
Losses and
Expenses," the third sentence of the second paragraph in "--P&I
and Servicing
Advances" and the twelfth paragraph in "--Appraisal Reductions"
(provided, that
with respect to the information in the fourteenth paragraph in
"Description of
the Certificates-Subordination; Allocation of Losses and Expenses,"
the third
sentence of the second paragraph in "--P&I and Servicing
Advances" and in the
fourteenth paragraph in "Description of the Certificates-Appraisal
Reductions,"
only such portions that solely relate to the related intercreditor
agreement of
the San Marcos
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Apartments Whole Loan) or set forth in Annex A 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) any
such untrue statement or alleged untrue statement or omission or
alleged
omission is with respect to information regarding the College
Station Apartments
Whole Loan (as defined in the Prospectus Supplement) and 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 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," the fifteenth paragraph under "Description of the
Certificates--Subordination; Allocation of Losses and Expenses,"
the third
sentence of the second paragraph in "--P&I and Servicing
Advances" and the
thirteenth paragraph in "--Appraisal Reductions" (provided, that
with respect to
the information in the fifteenth paragraph in "Description of the
Certificates-Subordination; Allocation of Losses and Expenses," the
third
sentence of the second paragraph in "--P&I and Servicing
Advances" and in the
fourteenth paragraph in "Description of the Certificates-Appraisal
Reductions,"
only such portions that solely relate to the related intercreditor
agreement of
the College Station Apartments Whole Loan) or set forth in Annex A
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; (v) 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 (vi) 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
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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
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
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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,
