EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of January 25, 2006, 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
January 25, 2006, between the Purchaser and GACC (the "GACC Mortgage Loan
Purchase Agreement"); (ii) GACC pursuant to, and for the consideration described
in, an additional and separate mortgage loan purchase agreement, dated as of
January 25, 2006 between the Purchaser and GACC (the "CWCapital/GACC Mortgage
Loan Purchase Agreement") and (iii) Xxxxxx Xxxxxxx Mortgage Capital Inc.
("MSMC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of January 25, 2006 between the Purchaser and MSMC
(the "MSMC Mortgage Loan Purchase Agreement"). 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 XxXxxx-Xxxx Companies, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of January 1, 2006
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such capacity, the
"Master Servicer") and serviced whole loan paying agent, CWCapital Asset
Management, LLC, as special servicer (in such capacity, the "Special Servicer")
and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-1A, Class A-1D,
Class A-2, Class A-3, Class A-4, Class XP, Class A-M, Class A-J, Class B, Class
C, Class D and Class E Certificates to Deutsche Bank Securities Inc., Xxxxxx
Xxxxxxx & Co. Incorporated and GMAC Commercial Holding Capital Markets Corp.
(together, the "Underwriters"), pursuant to an underwriting agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser intends to sell the
Class XC, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class FNB-1, Class FNB-2, Class FNB-3,
Class FNB-4,
Class FNB-5 and Class FNB-6 Certificates to Deutsche Bank Securities Inc. and
Xxxxxx Xxxxxxx & 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
X-X, Class R-I, Class R-II and Class R-III Certificates to a Qualified
Institutional Buyer. The Class XC, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class FNB-1,
Class FNB-2, Class FNB-3, Class FNB-4, Class FNB-5, Class FNB-6, Class X-X,
Class R-I, Class R-II and Class R-III Certificates are collectively referred to
as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser agrees to purchase, the
Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on
January 31, 2006 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The "Cut-off Date" with respect to any
Mortgage Loan is the Due Date for such Mortgage Loan in January 2006. As of the
close of business on their respective Cut-off Dates, the Mortgage Loans will
have an aggregate principal balance (the "Aggregate Cut-off Date Balance"),
after application of all payments of principal due thereon on or before such
date, whether or not received, of $602,768,299 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
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(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.
(c) The Mortgage Loan Seller's records will reflect the transfer of the
Mortgage Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to pursue any
remedy available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loans, subject to the exceptions set forth on
Schedule B-1 to Exhibit B hereto.
(b) In addition, the Mortgage Loan Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of 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
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the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage Loan
Seller has received service of process or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller the outcome
of which, in the Mortgage Loan Seller's good faith and reasonable judgment,
could reasonably be expected to prohibit the Mortgage Loan Seller from
entering into this Agreement or materially and adversely affect the ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the other
transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor anyone acting on its
behalf has (A) offered, pledged, sold, disposed of or otherwise transferred
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person
in any manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate, or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security or (E)
taken any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a violation of
the Securities Act or any
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state securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not otherwise
intended to be a Registered Certificate. In addition, the Mortgage Loan
Seller will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to
any of the Certificates or interests therein. For purposes of this
paragraph 4(b)(viii), the term "similar security" shall be deemed to
include, without limitation, any security evidencing or, upon issuance,
that would have evidenced an interest in the Mortgage Loans or the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Mortgaged
Properties related to such Mortgage Loans, the information set forth in
Updated Annex A (as defined in Section 9), as of its date and as of the
Time of Sale (as defined in Section 9), and the information set forth
between pages A-17 and A-20 inclusive of Annex A to the Prospectus
Supplement (as defined in Section 9), as of its date and as of the Closing
Date, (together, the "Loan Detail") and, to the extent consistent
therewith, the information set forth on the diskette attached to the Issuer
Free Writing Prospectus (as defined in Section 9) (the "FWP Diskette"), as
of its date and as of the Time of Sale, or the diskette attached to the
Prospectus Supplement and the accompanying prospectus (the "Pro Supp
Diskette" and together with the FWP Diskette, the "Diskettes"), as of its
date and as of the Closing Date, is true and correct in all material
respects. Insofar as it relates to the Mortgage Loans (other than the Seven
Springs Village Whole Loan) and the Mortgaged Properties related thereto
and/or the Mortgage Loan Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Issuer Free Writing Prospectus, as of its date and as of the
Time of Sale, the Prospectus Supplement, as of its date and as of the
Closing Date, and the Memorandum (as defined in Section 9), as of its date
and as of the Closing Date, under the headings "Summary of Series 2006-C1
Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans,"
"Risk Factors," "The Sponsor" and "Description of the Mortgage Pool" and/or
set forth on Updated Annex A or Annex B to the Issuer Free Writing
Prospectus, as of its date and as of the Time of Sale, or Annex A and/or
Annex B to the Prospectus Supplement, as of its date and as of the Closing
Date, as applicable, and (to the extent it contains information consistent
with that on such Updated Annex A in the case of the Issuer Free Writing
Prospectus, or Annex A in the case of the Prospectus Supplement) set forth
on the FWP Diskette, as of its date and as of the Time of Sale, or the Pro
Supp Diskette, as of its date and as of the Closing Date, as applicable,
does not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information specified
therein as being available for review by investors) omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Insofar as it
relates to the Seven Springs Village Whole Loan and/or the Mortgaged
Property related thereto and/or the Mortgage Loan Seller and does not
represent a restatement or aggregation of the information on the Loan
Detail, the information set forth in the Issuer Free Writing Prospectus, as
of its date and as of the Time of Sale, the Prospectus Supplement, as of
its date and as of the Closing Date, and the Memorandum, as of its date and
as of the Closing Date, under the headings
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"Summary of Series 2006-C1 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "--Servicing of Other Loans with
the Companion Loans or B Notes," "Risk Factors," "Description of the
Mortgage Pool," the second sentence of the second paragraph in "Servicing
of the Mortgage Loans," the first and second paragraphs in "--Servicing
Standard," the fourth paragraph in "--Specially Serviced Mortgage Loans,"
the sixth paragraph in "--The Majority Certificateholder of the Controlling
Class," the seventh paragraph in "Termination of the Special Servicer for
Specially Serviced Mortgage Loans," the third sentence of the fourth
paragraph, the sixth sentence of the fifth paragraph and the seventh
sentence of the sixth paragraph in "--Servicing and Other Compensation and
Payment," the first, second, third and sixth paragraphs in "The Pooling and
Servicing Agreement--Realization Upon Defaulted Mortgage Loans," the first
paragraph in "--Due-on-Sale and Due-on-Encumbrance Provision," the second
paragraph in "Description of the Certificates--P&I and Servicing Advances"
and/or the ninth paragraph in "--Appraisal Reductions" and/or set forth on
Updated Annex A and/or Annex B to the Issuer Free Writing Prospectus, as of
its date and as of the Time of Sale, or Annex A and/or Annex B to the
Prospectus Supplement, as of its date and as of the Closing Date, as
applicable, (but only such portions that relate to the intercreditor
agreement related to the Seven Springs Village Whole Loan)and (to the
extent it contains information consistent with that on such Updated Annex A
in the case of the Issuer Free Writing Prospectus, or Annex A in the case
of the Prospectus Supplement) set forth on the FWP Diskette, as of its date
and as of the Time of Sale, or the Pro Supp Diskette, as of its date and as
of the Closing Date, as applicable, does not contain any untrue statement
of a material fact or (in the case of the Memorandum, when read together
with the other information specified therein as being available for review
by investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(x) The information set forth in the Prospectus Supplement under the
heading "The Sponsor" satisfies the requirements of Items 1104, 1110, 1117
and 1119 of Regulation AB under the Securities Act.
(xi) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the consummation by the
Mortgage Loan Seller of any transaction contemplated hereby, other than (1)
the filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Mortgage Loan
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
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(xii) No subservicing agreements have been entered into with a
Sub-Servicer of the Mortgage Loans by or at the request of the Mortgage
Loan Seller (a "Seller Sub-Servicing Agreement").
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit B, which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
(d) The Mortgage Loan Seller hereby covenants and agrees that, upon the
request of the Purchaser, it will use commercially reasonable efforts to cause
each Sub-Servicer under a Seller Sub-Servicing Agreement, if any, to provide all
certifications and attestations set forth in Article XII of the Pooling and
Servicing Agreement, as and when required of such Sub-Servicer.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(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
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constitute a violation of, any law, any order or decree of any court or
arbiter or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Purchaser's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02
and 2.03 of the Pooling and Servicing Agreement, including, but not limited to,
any obligation to repurchase or substitute Mortgage Loans in respect of any
Material Breach or Material Document Defect. This Section 6 and Sections 2.02
and 2.03 of the Pooling and Servicing Agreement provide the sole remedy
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Breach of any representation or
warranty set forth in or required to be made pursuant to Section 4(a) or any
Material Document Defect in a Mortgage File.
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SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 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 California, dated not earlier
than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser, subject to such
reasonable assumptions and qualifications as may be requested by counsel
for the Mortgage Loan Seller and acceptable to counsel for the Purchaser,
dated the Closing Date and addressed to the Purchaser and each Underwriter;
(f) Negative assurance letters, from counsel to the Mortgage Loan
Seller, in a form reasonably acceptable to counsel for the Purchaser,
regarding the Issuer Free Writing Prospectus and the Prospectus;
(g) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the issuance
of the Certificates, each of which shall include the Purchaser and each
Underwriter as an addressee; and
(h) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act" each, an "Indemnified Party"), against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Issuer Free Writing Prospectus, as of its date and as of
the Time of Sale, the Prospectus Supplement, as of its date and as of the
Closing Date, the Memorandum, as of its date and as of the Closing Date, the FWP
Diskette, as of its date and as of the Time of Sale, the Pro Supp Diskette, as
of its date and as of the Closing Date, any Asset Summary (as defined
hereinafter) or in any revision or amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission (in the case of
any such Asset Summary, when read in conjunction with the Issuer Free Writing
Prospectus, the
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Memorandum and the other information specified in the Memorandum as being
available for review by investors and, in the case of the Memorandum, when read
together with the other information specified therein as being available for
review by investors) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans contained in the Loan Detail
or, to the extent consistent therewith, the FWP Diskette or the Pro Supp
Diskette or contained in the Term Sheet Diskette, to the extent consistent with
the Term Sheet Master Tape; or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Mortgage Loan Seller, the Mortgage Loans (other than the Seven
Springs Village Whole Loan) or the Mortgaged Properties related thereto
contained in the Issuer Free Writing Prospectus, as of its date and as of the
Time of Sale, the Prospectus Supplement, as of its date and as of the Closing
Date, or the Memorandum, as of its date and as of the Closing Date, under the
headings "Summary of Series 2006-C1 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment
Terms of the Mortgage Loans," "Risk Factors," "The Sponsor" and/or "Description
of the Mortgage Pool" or contained on Updated Annex A and/or Annex B to the
Issuer Free Writing Prospectus, as of its date and as of the Time of Sale, or
Annex A and/or Annex B to the Prospectus Supplement, as of its date and as of
the Closing Date, as applicable, (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail (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 the information regarding the Seven Springs Village
Whole Loan or the Mortgaged Property related thereto contained in the Issuer
Free Writing Prospectus as of its date and as of the Time of Sale, the
Prospectus Supplement, as of its date and as of the Closing Date, or the
Memorandum, as of its date and as of the Closing Date, under the headings
"Summary of Series 2006-C1 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment
or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the
Mortgage Loans," "--Servicing of Other Loans with the Companion Loans or B
Notes," "Risk Factors," "Description of the Mortgage Pool," the second sentence
of the second paragraph in "Servicing of the Mortgage Loans," the first and
second paragraphs in "--Servicing Standard," the fourth paragraph in
"--Specially Serviced Mortgage Loans," the sixth paragraph in "--The Majority
Certificateholder of the Controlling Class," the seventh paragraph in
"Termination of the Special Servicer for Specially Serviced Mortgage Loans," the
third sentence of the fourth paragraph, the sixth sentence of the fifth
paragraph and the seventh sentence of the sixth paragraph in "--Servicing and
Other Compensation and Payment," the first, second, third and sixth paragraphs
in "The Pooling and Servicing Agreement--Realization Upon Defaulted Mortgage
Loans," the first paragraph in "--Due-on-Sale and Due-on-Encumbrance Provision,"
the second paragraph in "Description of the Certificates--P&I and Servicing
Advances" and/or the ninth paragraph in "--Appraisal Reductions" and/or set
forth on Updated Annex A and/or Annex B to the Issuer Free Writing Prospectus,
as of its date and as of the Time of Sale, or Annex A and/or Annex B to the
Prospectus Supplement, as of its date and as of the Closing Date, as applicable
(exclusive of the
11
Loan Detail), and such information does not represent a restatement or
aggregation of information contained in 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.
The Mortgage Loan Seller hereby further agrees to indemnify and hold
harmless each Indemnified Party against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any actual or alleged failure of the information set forth in the Issuer
Free Writing Prospectus, Prospectus or the Prospectus Supplement under the
heading "The Sponsor" to satisfy the requirements of Items 1104, 1110, 1117 and
1119 of Regulation AB under the Securities Act. This indemnity agreement will be
in addition to any liability which the Mortgage Loan Seller may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-123974 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Base
Prospectus" shall mean the prospectus dated April 26, 2005; the "Issuer Free
Writing Prospectus" shall mean the free writing prospectus dated January 20,
2006, entitled "Free Writing Prospectus to Accompany Prospectus dated April 26,
2005", as filed with the Commission on January 24, 2006, relating to the
Registered Certificates, as supplemented and superseded in part by Updated Annex
A; the "Prospectus Supplement" shall mean the prospectus supplement dated
January 25, 2006, relating to the Registered Certificates; "Memorandum" shall
mean the private placement memorandum dated January 25, 2006, relating to the
Non-Registered Certificates; "Term Sheet FWP" shall mean the free writing
prospectus entitled "Structural and Collateral Term Sheet" attached as Annex C
to the Issuer Free Writing Prospectus. The mortgage loan information and
information related thereto contained on the diskette attached to the Term Sheet
FWP is referred to herein as the "Term Sheet Diskette" and the tape provided by
the Mortgage Loan Seller that was used to create the Term Sheet Diskette is
referred to herein as the "Term Sheet Master Tape." References herein to the
Term Sheet FWP shall include any Term Sheet Diskette provided therewith. As used
herein "Asset Summary" shall mean any summary of features of such Mortgage Loan
and the related Mortgaged Property prepared by or on behalf of the Mortgage Loan
Seller that were delivered to any investor of the Private Certificates; "Third
Party Report" shall mean appraisals, market studies, environmental,
12
accounting, engineering and other reports, studies or surveys concerning any of
the Mortgage Loans or related Mortgaged Properties; "Updated Annex A" shall mean
the free writing prospectus entitled "CMBS: GMAC 2006-C1 Updated Annex A", as
filed with the Commission on January 26, 2006. "Time of Sale" shall mean the
time when the first Contract of Sale was first made in accordance with Rule 133
under the Securities Act, which was 9:35 a.m. (New York City time) on the date
hereof.
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Mortgage Loan Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless: (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other
13
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.
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
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to GMAC Commercial
Mortgage Corporation, at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Structured Finance Manager, facsimile no. (000) 000-0000, with a copy
to GMAC Commercial Mortgage Corporation, or to such other address or facsimile
number as the Mortgage Loan Seller may designate in writing to the Purchaser.
14
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such covenants and indemnities may
be enforced by or on behalf of any such person or entity against the Mortgage
Loan Seller to the same extent as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Mortgage Loan Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law, which prohibits or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
15
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and
deliver such instruments and take such further actions as the other party may,
from time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner, which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
16
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached spreadsheet.
A-1
CONTROL LOAN LOAN SELLER/
NUMBER GROUP LOAN NUMBER ORIGINATOR (1) PROPERTY NAME ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
3 2 48270 GMACCM Seven Springs Village 0000 Xxxxxx Xxxx Xx. Xxxxxxx Xxxx
5 1 50624 GMACCM XxxxXxxxx Xxxxx 000 Xxxx Xxx Xxxxxx and 000 Xxxx
Xxxxxxx Xxxxxx Xxxxxxxxxxxx
9 1 50736 GMACCM Gateway Business Park 000-000 Xxxxxxx Xx, 000-000
Xxxxxxxxxx Xx, 000 Xxxx Xxxx Xx Xxxxx Xxxxxx
17 2 51310 GMACCM ELS Portfolio- Xxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxxxx Xxxxxx
18 1 50206 GMACCM Hampton Inn Alexandria 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
21 1 48199 GMACCM Courtyard by Marriott - Los Altos 0000 Xx Xxxxxx Xxxx Xxx Xxxxx
23 2 51311 GMACCM ELS Portfolio- The Winds of St.
Armands North 0000 Xxxxx Xxxxxx Xxxxxx Sarasota
27 1 50299 GMACCM Winston Salem Portfolio Various Winston Salem
28 1 51401 GMACCM Walgreens Pool 3/DCWI CT & DCWI
TX Various Various
28.01 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxx) 0000 Xxxxxx Xxxx Xxxx Guilford
28.02 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxxxx) 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx
28.03 51401-4 GMACCM Walgreens (San Xxxxxx) 0000 Xxxxxxxx Xxx Xxx Xxxxxx
28.04 51401-2 GMACCM Walgreens (Southbury) 000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx
29 1 51397 GMACCM Walgreens Pool 1/DCWI III Various Various
29.01 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxxxxxx) 0000 Xxxxx Xxxxxxxxx Xxxxxx Libertyville
29.02 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxx Springs) 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx Springs
29.03 00000-0 XXXXXX Xxxxxxxxx (Xxx Axe) 000 Xxxxx Xxx Xxxx Xxxx Bad Axe
29.04 51397-1 GMACCM Walgreens (Hartland) 000 Xxxxxx Xxxxxx Xxxxxxxx
30 1 51399 GMACCM Walgreens Pool 2/DCWI II Various Various
30.01 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxx Township) 0000 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx
30.02 00000-0 XXXXXX Xxxxxxxxx (Xxxxxxxx City) 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx
30.03 51399-3 GMACCM Walgreens (Bernalillo) 000 Xxxx Xxxxxxx 000 Bernalillo
30.04 00000-0 XXXXXX Xxxxxxxxx (Xxxxx Xxxx) 0000 Xxxx Xxxxxxxxx Xxxx Xxxxx Xxxx
31 2 51185 GMACCM Highline Club Apartments 00000 Xxxxxxx Xxxxxxxxx Novi
33 1 50554 GMACCM LSI Logic - Xxxxxx Xxxx 0000 Xxxxxx Xxxx Milpitas
35 1 51312 GMACCM ELS Portfolio- Central Park 000 Xxxx Xxxx Xxxx Xxxxxxx
37 1 51313 GMACCM ELS Portfolio - Lake Haven 0000 Xxxx Xxxxxx Xxxxxxx
38 1 49369 GMACCM Sierra Providence Eastside Center 0000 Xxxxxxx Xxxxx El Paso
41 1 50886 GMACCM Xxxxx Xxxxxx Square 000-000 Xxxxx Xxxxxxxxx Xxxxxxxxx El Segundo
42 1 49178 GMACCM Summit Xxxxx II 000 X-Xxxxxxxx Xxx Sharonville
43 2 50573 GMACCM Country Club Portfolio- Terrace 0000 Xxxx Xxxxxxxx Xxxxxxxxx Flagstaff
44 2 50575 GMACCM Country Club Portfolio- Xxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxxxxx Flagstaff
47 1 51033 GMACCM Homewood Suites Manchester 0000 Xxxxxxxxx Xxxx Manchester
50 1 51314 GMACCM ELS Portfolio- Pueblo Grande 000 Xxxxxxx Xxxxxxxxx Pueblo
52 2 51034 GMACCM Providence Hill Apartments 0000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxx
54 2 49255 GMACCM Country Club Portfolio- Vista 0000 Xxxx Xxxxxxxx Xxxxxxxxx Flagstaff
58 1 51260 XXXXXX Xxxx Xxxxxx Xxxxx 0000 Xxxx Xxxxxx Xxxxx Xxxxx
60 1 51083 GMACCM High River Apartments 1900 Rice Mine Road Tuscaloosa
61 2 50416 GMACCM Shellbrook Apartments 000 Xxxxxxxxxx Xxxxx Raleigh
65 1 51574 GMACCM Pavilion Medical Center 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx Springs
76 2 50143 GMACCM Xxxx Xxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxx Xxxx Xxxxxx
81 2 50711 GMACCM Xxxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxx
84 1 49626 GMACCM CVS (Davenport) 0000 Xxxxxxx Xxxx Xxxx Xxxx Xxxxxxxxx
85 1 50777 GMACCM Walgreens (Frisco) 0000 Xxxx Xxxxxx Xxxxxx
86 1 50178 GMACCM Hobby Lobby and Office Depot 525 and 000 Xxxxx 0xx Xxxxxx Xxxxxxxx Xxxxxxx
88 1 50655 GMACCM Country Club Village MHC 0000 Xxxxx Xxxxxx Xxxxxx Xxxx
91 1 49447 GMACCM Xxxxxxx Xxxxxx Xxxxxxxx 00000-00000 Xxxxxxx Xxxxx Xxxxxxxxx
92 2 50992 GMACCM Salem Xxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxx Salem
93 1 51292 GMACCM Walgreens (Colorado Springs) 0000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx
102 1 50701 GMACCM Ramsay Building 0000 00xx Xxxxxx Xxxxx Xxxxxxxxxx
105 2 50417 GMACCM Xxxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxx
000 2 00000 XXXXXX Xxxxxxx East Apartments 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
110 1 49191 GMACCM Xxxxxx Mall 2331 Velp Avenue Xxxxxx
111 1 50652 GMACCM Xxxxx Xxxxxx Office Building 00000 Xxxxx Xxxx Xxxx Xxxxx
112 1 49848 GMACCM Xxxxxxx Xxxxx XXX 000 Xxxxxxx Xxxxx Xxxxx Princeton
113 1 49014 GMACCM Rivershoals Xxxxx Xxxxxxxx Xxxxxx 0000 - 0000 Xxxxxxxxx Xxxx Xxxxxxx Xxxx
115 1 50664 GMACCM Iron Mountain Xxxxxx 00000 Xxx Xxxxx Xxxxx Xxxxxxxxx
CONTROL NUMBER OF CROSS ORIGINAL
NUMBER STATE ZIP CODE COUNTY PROPERTIES PROPERTY TYPE COLLATERALIZED (2) RELATED GROUPS BALANCE ($)
-----------------------------------------------------------------------------------------------------------------------------------
3 Maryland 20740 Prince Xxxxxx 1 Multifamily 93,000,000
5 Florida 32202 Xxxxx 1 Office 76,000,000
9 New Jersey 08054 Burlington 1 Office 52,150,000
17 Colorado 80011 Xxxxx 1 Manufactured Housing Yes - A 27,200,000
18 Virginia 00000 Xxxxxxx 1 Hospitality 25,000,000
21 California 94022 Santa Xxxxx 1 Hospitality 22,500,000
23 Florida 34234 Sarasota 1 Manufactured Housing Yes - A 20,200,000
27 North Carolina 27105 Forsyth 1 Industrial/Warehouse 18,400,000
28 Various Various Various 4 Anchored Retail Yes - C 17,780,000
28.01 Xxxxxxxxxxx 00000 New Haven Anchored Retail
28.02 Texas 78363 Kleberg Anchored Retail
28.03 Texas 76901 Xxx Xxxxx Anchored Retail
28.04 Xxxxxxxxxxx 00000 New Haven Anchored Retail
29 Various Various Various 4 Anchored Retail Yes - C 17,410,000
29.01 Illinois 60048 Lake Anchored Retail
29.02 Colorado 80915 El Paso Anchored Retail
29.03 Michigan 48413 Huron Anchored Retail
29.04 Wisconsin 53029 Waukesha Anchored Retail
30 Various Various Various 4 Anchored Retail Yes - C 16,440,000
30.01 Michigan 48382 Oakland Anchored Retail
30.02 Colorado 80022 Xxxxx Anchored Retail
30.03 New Mexico 87004 Xxxxxxxx Anchored Retail
30.04 Indiana 00000 Xx. Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxx 00000 Oakland 1 Multifamily 15,500,000
33 California 95035 Santa Xxxxx 1 Industrial/Warehouse 14,200,000
35 Arizona 85023 Maricopa 1 Manufactured Housing Yes - A 12,600,000
37 Florida 34698 Pinellas 1 Manufactured Housing Yes - A 11,500,000
38 Texas 79936 El Paso 1 Office 11,250,000
41 California 90245 Los Angeles 1 Unanchored Retail 10,512,000
42 Ohio 45241 Xxxxxxxx 1 Office Yes - H 10,500,000
43 Arizona 86004 Coconino 1 Multifamily Yes - F 10,500,000
44 Arizona 86004 Coconino 1 Multifamily Yes - F 10,300,000
00 Xxx Xxxxxxxxx 00000 Xxxxxxxxxxxx 1 Hospitality 8,900,000
50 Colorado 81008 Pueblo 1 Manufactured Housing Yes - A 7,800,000
52 Missouri 65203 Xxxxx 1 Multifamily 7,600,000
54 Arizona 86004 Coconino 1 Multifamily Yes - F 7,400,000
58 Minnesota 55123 Dakota 1 Office 6,515,000
60 Alabama 35406 Tuscaloosa 1 Multifamily 6,200,000
61 North Carolina 27609 Wake 1 Multifamily Yes - J 6,150,000
65 Colorado 80907 Xx Xxxx 0 Xxxxxx 0,000,000
00 Xxxxxxxx 00000 Xxxx Arundel 1 Multifamily 4,900,000
81 Indiana 44616 St. Xxxxxx 1 Multifamily 4,560,000
84 Florida 33896 Osceola 1 Anchored Retail 4,450,000
85 Texas 75034 Xxxxxx 1 Anchored Retail 4,329,000
86 Colorado 80905 El Paso 1 Anchored Retail 4,300,000
88 Arizona 85201 Maricopa 1 Manufactured Housing 4,200,000
91 Minnesota 55044 Dakota 1 Unanchored Retail Yes - H 3,770,000
92 New Jersey 08079 Salem 1 Multifamily 3,700,000
93 Colorado 80918 El Paso 1 Anchored Retail 3,679,000
102 Alabama 35205 Jefferson 1 Office 2,800,000
105 North Carolina 27609 Wake 1 Multifamily Yes - J 2,550,000
106 Alabama 35215 Jefferson 1 Multifamily 2,400,000
110 Wisconsin 54303 Xxxxx 1 Unanchored Retail 1,850,000
111 Florida 33908 Xxx 1 Office 1,682,000
112 West Virginia 24740 Xxxxxx 1 Manufactured Housing 1,650,000
113 Georgia 30349 Xxxxxxx 1 Unanchored Retail 1,537,500
115 North Carolina 28269 Mecklenburg 1 Office 1,350,000
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
B-1
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GMAC COMMERCIAL MORTGAGE CORPORATION
B-2
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
GMAC COMMERCIAL MORTGAGE CORPORATION
CERTIFICATE OF SECRETARY
I, the undersigned Assistant Secretary of GMAC COMMERCIAL MORTGAGE
CORPORATION (the "COMPANY" or "MORTGAGE LOAN SELLER"), hereby certify as
follows:
(1) I am a duly elected, qualified and acting Assistant Secretary of
the Company.
(2) The Company is a corporation organized under the laws of the State
of California. A true and correct copy of the Certificate of Good Standing
for the Company issued by the Secretary of State for the State of
California is attached hereto as Exhibit I.
(3) Also attached hereto as Exhibit I are true, correct and complete
copies of the Company's Certificate of Incorporation and Bylaws, as amended
through the date hereof.
(4) Attached hereto as Exhibit II is a copy of certain resolutions of
the Company which have been duly adopted by the Company and which remain in
full force and effect as of the date hereof and have not been amended,
rescinded or impaired in any way.
(5) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Mortgage Loan Seller are pending or
contemplated.
(6) Each person listed below currently holds the title set forth
opposite his or her name and the signature of each such person (whether
applied manually, by facsimile, or as an electronic signature) appearing
below, opposite his or her name, is his or her genuine signature:
NAME TITLE SIGNATURE
------------- ----- ---------
Xxxxx Xxxxxxx ---------
(7) Each person listed above who signed, either manually or by
facsimile signature, the Mortgage Loan Purchase Agreement, dated as of
January 25, 2006 (the "Purchase Agreement"), between the Mortgage Loan
Seller and GMAC Commercial Mortgage Securities, Inc. providing for the
purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage
Loan Seller of the Mortgage Loans, was, at the respective times of such
signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine
signatures.
C-1-1
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of this 31st
day of January, 2006.
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[Name], [Assistant] Secretary
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial
Mortgage Corporation (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of January 25, 2006 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this 31st day of January 2006.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
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Name:
Title:
C-2-1
