EXHIBIT 1.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,301,390,000
Mortgage Pass-Through Certificates, Series 1998-C1
Class X, Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class F
UNDERWRITING AGREEMENT
----------------------
as of April 28, 1998
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxx Brothers Inc.
Three World Financial Center, 20th Floor
New York , NY 10285
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), for whom each of you is acting as representative (together, the
"Representatives"), the respective classes of Mortgage Pass-Through
Certificates, Series 1998-C1, that are identified on Schedule I, in each case,
having the initial aggregate stated principal amount (a "Class Principal
Balance") or initial aggregate notional principal amount (a "Class Notional
Amount") and initial pass-through rate set forth on Schedule I. The Class X,
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates (collectively, the "Certificates"), together with the Class G,
Class H, Class J, Class K, Class L, Class M and Class N Certificates issued
therewith, will evidence the entire interest in the Trust Fund (as defined in
the Pooling and Servicing Agreement referred to below) consisting primarily of a
pool (the "Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") as described in the Prospectus Supplement (as hereinafter defined) to be
sold by the Company.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of May 1, 1998 (the
"Cut-off Date") among the Company, as depositor, GMAC Commercial Mortgage
Corporation ("GMACCM"), as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle National Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent. The Certificates are described in the Basic Prospectus and the
Prospectus Supplement (each as hereinafter defined) which the Company has
furnished to the Representatives.
Certain of the Mortgage Loans (the "GACC Mortgage Loans") will be acquired
by the Company from German American Capital Corporation ("GACC") pursuant to a
mortgage loan purchase agreement, dated as of April 28, 1998 (the "GACC Purchase
Agreement"), between the Company and GACC. Certain of the Mortgage Loans (the
"GMACCM Mortgage Loans") will be acquired by the Company from GMACCM pursuant to
a mortgage loan purchase agreement, dated as of April 28, 1998 (the "GMACCM
Purchase Agreement"), between the Company and GMACCM (the GMACCM Mortgage Loans,
together with the GACC Mortgage Loans, the "Mortgage Loans"). GACC and GMACCM
together constitute the "Mortgage Loan Sellers" and the GACC Purchase Agreement
and the GMACCM Purchase Agreement together constitute the "Purchase Agreements."
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the
Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-37717) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Act"),
of Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy
of which, as amended to the date hereof, has heretofore been delivered to
the Representatives. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the rules and regulations of the Commission
under the Act (the "1933 Act Regulations") a supplement dated April 28,
1998 (the "Prospectus Supplement"), to the prospectus dated December 17,
1997 (the "Basic Prospectus"), relating to the Certificates and the method
of distribution thereof. Such registration statement (No. 333-37717)
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement;" the Basic Prospectus and the Prospectus
Supplement and any information incorporated therein by reference
(including, without limitation, and only for purposes of clarification, any
information filed with the Commission pursuant to a Current Report on Form
8-K), together with any amendment thereof or supplement thereto authorized
by the Company on or prior to the Closing Date for use in connection with
the offering of the Certificates, are hereinafter called the "Prospectus"
and any diskette attached to the Prospectus is hereinafter called the
"Diskette." Any preliminary form of the Prospectus Supplement which has
heretofore been filed pursuant to Rule 424, or prior to the effective date
of the Registration Statement pursuant to Rule 402(a), or 424(a) is
hereinafter called a
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"Preliminary Prospectus Supplement;" and any diskette attached to the
Preliminary Prospectus Supplement is hereinafter referred to as the
"Preliminary Diskette." As used herein, "Pool Information" means the
compilation of information and data regarding the Mortgage Loans covered by
the Agreed Upon Procedures Letter dated May 18, 1998 and rendered by Price
Waterhouse LLP (a "hard copy" of which Pool Information was initialed on
behalf of each Mortgage Loan Seller and the Company).
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus and any
Diskette, as of the date of the Prospectus Supplement, did not, and as of
the Closing Date will not, contain an untrue statement of a material fact
and did not and will not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that neither the
Company nor GMACCM makes any representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto relating to the
information identified by underlining or other highlighting as shown in
Exhibit C (the "Excluded Information"); and provided, further, that neither
the Company nor GMACCM makes any representations or warranties as to either
(i) any information in any Computational Materials or ABS Term Sheets (each
as hereinafter defined) required to be provided by the Underwriters to the
Company pursuant to Section 4.2, or (ii) as to any information contained in
or omitted from the portions of the Prospectus identified by underlining or
other highlighting as shown in Exhibit D (the "Underwriter Information");
and provided, further, that neither the Company nor, except as contemplated
by Section 1.2(a), GMACCM makes any representations or warranties as to any
information regarding the Mortgage Loans or the Mortgage Loan Sellers
contained in or omitted from the portions of the Prospectus Supplement
under the headings "Summary of the Prospectus Supplement--The Mortgage
Asset Pool," "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Asset Pool" or contained in or omitted from Annex A to the
Prospectus Supplement or contained in or omitted from the Diskette (the
"Mortgage Loan Seller Information"), other than that any Mortgage Loan
Seller Information (exclusive of the information set forth on pages A-9
through A-13, inclusive, of Annex A to the Prospectus Supplement (the "Loan
Detail") and the information on the Diskette) that represents a restatement
or aggregation of the information on the Loan Detail, accurately reflects
the information contained in the Loan Detail; and provided, further, that
neither the Company nor GMACCM makes any representations or warranties with
respect to the Diskette to the extent that the information set forth in the
Diskette is different than the information set forth in the Loan Detail.
Neither the Company nor, except as contemplated by Section 1.2(a), GMACCM
makes any representations or warranties, however, as to the accuracy or
completeness of any information in the Loan Detail. The Company
acknowledges that, except for any Computational
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Materials and ABS Term Sheets, the Underwriter Information constitutes the
only information furnished in writing by or on behalf of any Underwriter
for use in connection with the preparation of the Registration Statement,
any preliminary prospectus or the Prospectus, and the Underwriters confirm
that the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power to own its properties and to conduct its
business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
Representatives on behalf of the Underwriters, constitutes a valid, legal
and binding obligation of the Company, enforceable against the Company in
accordance with the terms hereof, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (ii) generally principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (iii) 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.
(e) As of the Closing Date (as defined herein), the Certificates will
conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in the
Pooling and Servicing Agreement will be true and correct in all material
respects.
1.2 GMACCM represents and warrants to and agrees with you that:
(a) As of the Closing Date, the representations and warranties of
GMACCM in the Pooling and Servicing Agreement and in Section 4(b) of the
GMACCM Purchase Agreement will be true and correct in all material
respects.
(b) This Agreement has been duly authorized, executed and delivered by
GMACCM and, assuming the due authorization, execution and delivery by the
Representatives on behalf of the Underwriters, constitutes a valid, legal
and binding obligation of GMACCM, enforceable against GMACCM in accordance
with the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (iii) 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.
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1.3 Each Representative, on behalf of itself and each Underwriter,
represents and warrants to and agrees with the Company and GMACCM that:
(a) With respect to each class of Certificates, if any, to be issued
in authorized denominations of $25,000 or less initial principal balance or
evidencing percentage interests in such class of less than 20%, as the case
may be, the fair market value of all such Certificates sold to any single
Person on the date of initial sale thereof by such Underwriter will not be
less than $100,000.
(b) As of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder, including, without
limitation, Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by such Underwriter to the Company pursuant to
Section 4.2, if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets,
except to the extent of any errors therein that are caused by errors in the
Pool Information) and include all assumptions material to the preparation
thereof. The Computational Materials and ABS Term Sheets provided by such
Underwriter to the Company constitute a complete set of all Computational
Materials and ABS Term Sheets delivered by such Underwriter to prospective
investors that are required to be filed with the Commission.
1.4 Each Representative represents and warrants to the Company and GMACCM
that it has been authorized by each of the other Underwriters to execute and
deliver this Agreement on behalf of such Underwriters.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, the actual or notional, as the
case may be, principal amounts or percentage interests set forth in Schedule I
hereto in the respective classes of Certificates at a price for each such class
set forth in Schedule I hereto. There will be added to the purchase prices of
the Certificates an amount equal to interest accrued thereon from the Cut-off
Date to but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Certificates shall
be made at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP at 10:00 a.m., New
York City time, on May 18, 1998 or such later date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company (such date and time of delivery and payment for
the Certificates being herein called the "Closing Date"). Delivery of the
Certificates (also referred to herein as the "DTC Registered Certificates")
shall be made to the Representatives for the respective accounts of the
Underwriters through DTC, in each case against payment by the Underwriters to or
upon the order of each Mortgage Loan Seller by wire transfer in immediately
available funds of the amount to which such Mortgage Loan Seller is entitled in
accordance with the terms of an allocation agreement dated the date hereof (the
"Allocation Agreement"), to which each such Mortgage Loan Seller and the
Company, among others, are parties. As a further condition to the delivery of
the
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DTC Registered Certificates, each Representative shall have furnished by
telephonic notice to the applicable Mortgage Loan Seller the federal reference
number for the related wire transfer to such Mortgage Loan Seller and shall have
furnished to the Company each such federal reference number as soon as
practicable after such federal reference number becomes available.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Certificates for sale to the public as set forth in the Prospectus, and the
Underwriters agree that all such offers and sales by the Underwriters shall be
made in compliance with all applicable laws and regulations. It is further
understood that the Company, in reliance upon a no-filing letter from the
Attorney General of the State of New York granted pursuant to Policy Statement
105, has not and will not file an offering statement pursuant to Section 352-e
of the General Business Law of the State of New York with respect to the
Certificates. As required by Policy Statement 105, each Underwriter therefore
covenants and agrees with the Company that sales of the Certificates made by
such Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Certificates, subject
to the following conditions to be satisfied by such Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), as well as the PSA Letter referred to below. In connection with
the use of ABS Term Sheets, such Underwriter shall comply with all
applicable requirements of the No-Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by or
at the direction of such Underwriter.
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(c) (i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the following
statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE CERTIFICATES NOR
ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS
SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend shall
also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [, EXCEPT WITH RESPECT TO
THE INITIAL COLLATERAL TERM SHEET PREPARED BY THE UNDERWRITERS,]
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS
RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [NAME OF
[APPLICABLE] UNDERWRITER]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein. Notwithstanding the
foregoing, subsections (c)(i) and (c)(ii) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form previously approved in writing by the Company.
(d) Such Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Company for use by the Underwriters. Such Underwriter shall provide to
the Company, for filing on Form 8-K as provided in Section 5.9, copies (in
such format as required by the Company) of all Computational Materials and
ABS Term Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS
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Term Sheets described in this subsection (d) must be provided to the
Company not later than 10:00 a.m. New York time one business day before
filing thereof is required pursuant to the terms of this Agreement. Such
Underwriter agrees that it will not provide to any investor or prospective
investor in the Certificates any Computational Materials or ABS Term Sheets
on or after the day on which Computational Materials and ABS Term Sheets
are required to be provided to the Company pursuant to this Section 4.2(d)
(other than copies of Computational Materials or ABS Term Sheets previously
submitted to the Company in accordance with this Section 4.2(d) for filing
pursuant to Section 5.9), unless such Computational Materials or ABS Term
Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(e) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that are
required to be filed were based on assumptions with respect to the Pool
that differ from the final Pool Information in any material respect or on
Certificate structuring terms that were revised in any material respect
prior to the printing of the Prospectus, such Underwriter shall prepare
revised Computational Materials or ABS Term Sheets, as the case may be,
based on the final Pool Information and final structuring assumptions,
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to
such Underwriter they would purchase all or any portion of the
Certificates, and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company
pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of the applicable
Underwriter, the Company will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated __________" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked "material
previously dated __________, as corrected." In the event that within the
period during which the Prospectus relating to the Certificates is required
to be delivered under the Act, any Computational Materials or ABS Term
Sheets delivered by an Underwriter are determined, in the reasonable
judgment of the Company or such Underwriter, to contain a material error or
omission, such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they
would purchase all or any portion of the Certificates, or actually
purchased all or any portion thereof, and shall deliver copies of such
corrected Computational Materials and ABS Term Sheets (marked, "as
corrected") to the
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Company for filing with the Commission in a subsequent Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials and ABS Term Sheets,
which shall be at the expense of such Underwriter).
(g) If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Company pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and such Underwriter shall provide the Company
with a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by such Underwriter to
the Company of all Computational Materials and ABS Term Sheets required to
be delivered in accordance with subsection (d) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to Section 5.9,
the Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions, in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(i) Notwithstanding anything herein to the contrary, for purposes of
this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the sixth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of Exhibit E attached hereto, setting forth (i) in the
case of each class of Certificates, (a) if less than 10% of the aggregate actual
or notional, as the case may be, principal balance of such class of Certificates
has been sold to the public as of such date, the value calculated pursuant to
clause (b)(iii) of Exhibit E hereto, or, (b) if 10% or more of such class of
Certificates has been sold to the public as of such date but no single price is
paid for at least 10% of the aggregate actual or notional, as the case may be,
principal balance of such class of Certificates, then the weighted average price
at which the Certificates of such class were sold expressed as a percentage of
the aggregate actual or notional, as the case may be, principal balance of such
class of Certificates sold, or (c) the first single price at which at least 10%
of the aggregate actual or notional, as the case may be, principal balance of
such class of Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of Certificates, and (iii) such other
information as to matters of fact as the Company may
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reasonably request to enable it to comply with its reporting requirements with
respect to each class of Certificates to the extent such information can in the
good faith judgment of such Underwriter be determined by it.
5. Agreements. The Company agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Certificates, the Company will furnish the
Representatives with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Certificates in which a prospectus relating to the Certificates is required
to be delivered under the Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to the Representatives on behalf of the several
Underwriters, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
5.4 The Company will furnish to the Representatives, without charge, a copy
of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as the Representatives may
reasonably request.
5.5 The Company agrees, so long as the Certificates shall be outstanding,
or until such time as the several Underwriters shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Representatives the annual statement as to compliance delivered to the Trustee
pursuant to Section 3.13 of the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Certificates;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
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5.7 Except as herein provided, the several Underwriters shall be
responsible only for paying all costs and expenses incurred by them, including
the fees and disbursements of their counsel, in connection with the purchase and
sale of the Certificates.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will advise the Representatives of the issuance of such
stop order.
5.9 The Company shall file the Computational Materials and ABS Term Sheets
(if any) provided to it by the Underwriters under Section 4.2(d) hereof with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriters or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, each Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from Price Waterhouse LLP, certified
public accountants, satisfactory in form and substance to the Company, GMACCM
and their respective counsels, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Company, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate except as to such matters that are not
deemed by the Company to be material. The Company shall file any corrected
Computational Materials described in Section 4.2(f) as soon as practicable
following receipt thereof. The Company also will file with the Commission within
fifteen days of the issuance of the Certificates a Current Report on Form 8-K
(for purposes of filing the Pooling and Servicing Agreement).
6. Conditions to the Obligations of the Underwriters. The Underwriters'
obligation to purchase the Certificates shall be subject to the following
conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since December 31, 1997, there shall have been no material adverse
change (not in the ordinary course of business) in the condition of the Company
or GMACCM.
6.3 The Company shall have delivered to the Underwriters a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of the Company to the effect that the signer of such certificate has
examined this Agreement, the
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Prospectus, the Pooling and Servicing Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects; and
(b) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
6.4 GMACCM shall have delivered to the Underwriters a certificate, dated
the Closing Date, of the President, a Senior Vice President or a Vice President
of GMACCM to the effect that the signer of such certificate has examined the
Pooling and Servicing Agreement and this Agreement and that, to the best of his
or her knowledge after reasonable investigation, the representations and
warranties of GMACCM contained in the Pooling and Servicing Agreement and in
this Agreement are true and correct in all material respects.
6.5 The Underwriters shall have received the opinions of Xxxxxx, Xxxxxxxxxx
& Xxxxxxxxx LLP, special counsel for the Company and GMACCM, dated the Closing
Date and substantially to the effect set forth in Exhibit A and the opinion of
Xxxxx Xxxxxxx-Xxxx, Esq., general counsel for the Company and GMACCM, dated the
Closing Date and substantially to the effect set forth in Exhibit B.
6.6 The Underwriters shall have received from Brown & Wood, LLP, counsel
for the Underwriters, an opinion dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters.
6.7 The Underwriters shall have received from Price Waterhouse LLP,
certified public accountants, (a) a letter dated the date hereof and reasonably
satisfactory in form and substance to the Underwriters and their counsel, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by you, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Description of the Mortgage Pool,"
"Description of the Certificates" and "Yield and Maturity Considerations" agrees
with the records of the Company and the Mortgage Loan Sellers excluding any
questions of legal interpretation and (b) the letter prepared pursuant to
Section 5.9 hereof.
6.8 The respective classes of Certificates shall have been rated as set
forth on Schedule I.
6.9 The Underwriters shall have received, with respect to the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to standard limitations regarding laws
affecting creditors' rights and general principles of equity, the enforceability
of the Pooling and Servicing Agreement against such party. Such opinion may
express its reliance as to factual matters on representations and warranties
made by, and on
12
certificates or other documents furnished by officers and/or authorized
representatives of, parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the laws of each state in which the writer of the opinion is
admitted to practice law and the federal law of the United States.
6.10 The Underwriters shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, special counsel to the Company, and from Xxxxx Xxxxxxx-Xxxx,
Esq., general counsel to the Company, reliance letters with respect to any
opinions delivered to the rating agencies identified on Schedule I hereto.
6.11 The Underwriters shall have received from counsel to each Mortgage
Loan Seller, the opinions substantially to the effect set forth in Exhibit D-3A
and D-3B of the respective Purchase Agreements.
The Company will furnish the Underwriters with conformed copies of the above
opinions, certificates, letters and documents as they reasonably request.
7. Indemnification and Contribution.
7.1 The Company and GMACCM, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference therein, or in the
Prospectus or incorporated by reference therein (if used within the period set
forth in Section 5.3 hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or in the Diskette, or
caused by any omission or alleged omission 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, except
insofar as such losses, claims, damages, or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
any information with respect to which the Underwriters have agreed to indemnify
the Company pursuant to Section 7.2; provided that the Company and GMACCM will
be liable for any such loss, claim, damage or liability that arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to the Mortgage Loan Seller Information
or Pool Information only if and to the extent that (i) any such untrue statement
is with respect to information regarding the GMACCM Mortgage Loans contained in
the Loan Detail or, to the extent consistent with Annex A to the Prospectus
Supplement, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding any or all of the Mortgage Loan Sellers or any or all of the Mortgage
Loans contained in the Prospectus Supplement under the headings "Summary of
Prospectus Supplement - The Mortgage Asset
13
Pool," "Risk Factors - The Mortgage Loans" and/or "Description of the Mortgage
Asset Pool" or on Annex A to the Prospectus Supplement (exclusive of the Loan
Detail) and such information represents a restatement or aggregation of
information contained in the Loan Detail, or (iii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding GMACCM or the GMACCM Mortgage Loans contained in the
Prospectus Supplement under the headings "Summary of Prospectus Supplement - The
Mortgage Asset Pool," "Risk Factors - The Mortgage Loans" and/or "Description of
the Mortgage Asset Pool" or on 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; and provided that none
of the Company, GMACCM or any Underwriter will be liable in any case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to the Excluded Information, except that
each of the Company and GMACCM will be liable to the extent any such loss,
claim, damage or liability is caused by errors in the portion of the Pool
Information relating to the GMACCM Mortgage Loans.
7.2 Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Company, GMACCM, their respective directors or officers and
any person who controls the Company or GMACCM within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in clause 7.1 above from the Company and GMACCM to the
Underwriters, but only with respect to (i) the Underwriter Information relating
to such Underwriter or supplied by such Underwriter to the Company for inclusion
in the Prospectus Supplement and (ii) the Computational Materials and ABS Term
Sheets delivered to investors in the Certificates by such Underwriter, except to
the extent of any errors in the Computational Materials or ABS Term Sheets that
are caused by errors in the Pool Information. In addition, the Underwriter
agrees to indemnify and hold harmless the Company, GMACCM, their respective
directors or officers and any person who controls the Company or GMACCM within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) caused by, resulting
from, relating to, or based upon any legend regarding original issue discount on
any Certificate resulting from incorrect information provided by such
Underwriter in the certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 7.1 or 7.2, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
14
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Representatives, in the case of
parties indemnified pursuant to Section 7.1, and by the Company or GMACCM, in
the case of parties indemnified pursuant to Section 7.2. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel reasonably
satisfactory to the indemnified party in connection therewith provided that the
counsel so designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of any
proceeding the indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for release of the indemnified party in connection with all matters
relating to the proceeding which have been asserted against the indemnified
party in such proceeding by the other parties to such settlement, without the
consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under Section 7.1 or 7.2 hereof or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, 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 not only the relative benefits received by the Company
and GMACCM on the one hand and the Underwriters on the other from the offering
of the Certificates but also the relative fault of the Company and GMACCM on the
one hand and of the Underwriters on the other 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
Company and GMACCM on the one hand and of any of the Underwriters on the other
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 the Company or
GMACCM or by an Underwriter, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in Section 7.4 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 7 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
15
pursuant to Section 7.4; 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 believes that it will be ultimately obligated to pay such
expenses. In the event that 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 which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and GMACCM in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Company or GMACCM and their respective directors or officers or any person
controlling the Company or GMACCM and (iii) acceptance of and payment for any of
the Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Certificates provided for
herein is not consummated because of any failure or refusal on the part of the
Company or GMACCM to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or GMACCM shall be unable to
perform their respective obligations under this Agreement. If the Underwriters
terminate this Agreement in accordance with this Section 8, the Company or
GMACCM will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by the Underwriters in connection with the proposed purchase
and sale of the Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Certificates agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Underwriters
shall be obligated to take up and pay for the Certificates that the defaulting
Underwriter agreed but failed to purchase; provided, however, that in the event
that the initial principal amount of Certificates that the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
principal balance of all of the Certificates set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Certificates, and if such
nondefaulting Underwriters do not purchase all of the Certificates, this
Agreement will terminate without liability to the nondefaulting Underwriters,
the Company or GMACCM. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date for the Certificates shall be postponed for
such period, not exceeding seven days, as the nondefaulting Underwriters shall
determine in order that the required changes in the Registration Statement, the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and to any nondefaulting Underwriter for
damages occasioned by its default hereunder.
16
10. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, GMACCM, the Underwriters or the officers of any of the Company, GMACCM
and the Underwriters set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or made by or
on behalf of the Company or GMACCM or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for
the Certificates.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: Deutsche Xxxxxx Xxxxxxxx Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx and Xxxxxx Brothers Inc. Three World
Financial Center, 20th Floor, New York, NY 10285, Attention: Xxxx Xxxxxxx; or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 000 Xxxxxxx Xxxx, X.X. Box 1015, Horsham, Pennsylvania 19044-8015,
Attention: Structured Finance Manager with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation; or, if sent to GMACCM, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxxxxx Xxxx, X.X. Box 1015,
Horsham, Pennsylvania 19044-8015, Attention: Structured Finance Manager with a
copy to the General Counsel, GMAC Commercial Mortgage Corporation.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument
17
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company, GMACCM
and the Underwriters.
Very truly yours,
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
By: /s/Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Partner
For itself and the other Underwriters named
in Schedule I to the foregoing Agreement
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-37717 filed by GMAC Commercial Mortgage
Securities, Inc. on Form S-3 and declared effective by the Commission.
Title and Description of the Registered Certificates:
Mortgage Pass-Through Certificates, Series 1998-C1, Class X-1, Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F
Underwriters: Deutsche Xxxxxx Xxxxxxxx Inc. ("DMG"), Xxxxxx Brothers Inc.
("Lehman") and Residential Funding Securities Corporation ("RFSC")
Underwriting Agreement, dated as of April 28, 1998
Cut-off Date: May 1, 1998
Allocations: Subject to the terms and conditions of the Underwriting Agreement,
each Underwriter has agreed to purchase the percentage of each class of
Certificates as set forth below:
Allocation Table
------------------------------------------------------------------------------------------------------------------------------------
Underwriter Class X Class A-1 Class A-2 Class B Class C Class D Class E Class F
----------- ------- --------- --------- -------- ------- ------- ------- -------
------------------------------------------------------------------------------------------------------------------------------------
DMG ................ 50% 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------------------------
Lehman ............. 50% 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------------------------
Total.............. 100% 100% 100% 100% 100% 100% 100% 100%
==== ==== ==== ==== ==== ==== ==== ====
------------------------------------------------------------------------------------------------------------------------------------
I-1
Initial Class Principal Balance (or in the
Class case of Initial Purchase Xxxxx'x/XXXXX IBCA
Designation Class X, Class Notional Amount)(1) Pass-Through Rate Price(2) Rating
----------- ---------------------------------- ----------------- -------- ------
X $1,438,000,263 Variable 2.3572 Aaa/AAA
A-1 $333,587,000 6.411% 100.1859 Aaa/AAA
A-2 $687,393,000 6.700% 101.1810 Aaa/AAA
B $28,760,000 6.753%(3) 101.1871 Aaa/AA+
C $64,710,000 6.806%(3) 101.1807 Aa2/AA
D $75,495,000 6.974%(3) 101.1859 A2/A
E $68,305,000 7.153%(4) 99.3306 Baa2/BBB
F $43,140,000 7.153%(4) 94.3337 NA/BBB-
----------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class Notional
Amount, as applicable, of the relevant class of Certificates to be
purchased. In addition, as to each such class of the Certificates, the
Underwriters will pay GMAC Commercial Mortgage Securities, Inc. accrued
interest at the initial Pass-Through Rate therefor from the Cut-off Date to
but not including the Closing Date.
(3) Lesser of fixed rate or Weighted Average Net Mortgage Rate.
(4) Weighted Average Net Mortgage Rate.
--------------------------------------------------------------------------------
Closing Time, Date and Location: 10:00 a.m. New York City time on May 18,1998 at
the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP.
--------------------------------------------------------------------------------
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance or notional amount, as the case may be, of $25,000 in the case of the
Class A-1 and Class A-2 Certificates, Class B, Class C, Class D, Class E and
Class F Certificates and $1,000,000 in the case of the Class X Certificates, and
integral multiples of $1 in excess thereof.
I-2
EXHIBIT A
[Form of Opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP]
A-1
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
May [__], 1998
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1998-C1
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Securities, Inc. (the
"Company") and GMAC Commercial Mortgage Corporation ("GMACCM"). In that
capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 1998-C1 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and Servicing
Agreement, dated as of May 1, 1998 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer,
LaSalle National Bank as trustee (the "Trustee") and ABN AMRO Bank N.V. as
fiscal agent.
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of April 28, 1998 the ("GMACCM
Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "GACC Mortgage Loans") were purchased by the Company
from German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of April 28, 1998 (the "GACC Mortgage Loan Purchase
Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class B, Class C, Class
D, Class E and Class F Certificates (collectively, the "Publicly Offered
Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx Brothers Inc. as
representatives (the "Representatives") for themselves and the other
underwriters (the "Underwriters") named in the Underwriting Agreement, dated as
of April 28, 1998 (the "Underwriting Agreement"), among the Company, GMACCM and
the Representatives, and sold the Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class R-I, Class R-II and R-III Certificates (collectively,
the "Privately Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and
Xxxxxx Brothers Inc. as initial purchasers (the "Initial Purchasers") pursuant
to the Certificate Purchase Agreement, dated as of April 28, 1998 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and the Initial
Purchasers (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement and the Pooling and Servicing Agreement, collectively, the
"Agreements"). Capitalized terms not defined herein have
B-1
the meanings set forth in the Agreements.
In connection with rendering this opinion letter, I have examined the
Agreements and such other records and other documents as I have deemed
necessary. I have further assumed that there is not and will not be any other
agreement that materially supplements or otherwise modifies the agreements
expressed in the Agreements. As to matters of fact, I have examined and relied
upon representations of parties contained in the Agreements and, where I have
deemed appropriate, representations and certifications of officers of the
Company, GMACCM, the Trustee, other transaction participants or public
officials. I have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures other than officers of the Company
and GMACCM, the legal capacity of natural persons other than officers of the
Company and GMACCM and the conformity to the originals of all documents
submitted to me as copies. I have assumed that all parties, except for the
Company and GMACCM, had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, I also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and the enforceability of such documents. I have further assumed the
conformity of the Mortgage Loans and related documents to the requirements of
the Agreements.
In rendering this opinion letter, I do not express any opinion concerning
any law other than the law of the Commonwealth of Pennsylvania, the General
Corporation Law of the State of Delaware and the federal law of the United
States, and I do not express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
the requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
2. GMACCM is duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of California, and has the requisite
power and authority, corporate or other, to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Agreements.
3. Each of the Agreements has been duly and validly authorized, executed
and delivered by the Company and GMACCM and, upon due authorization, execution
and delivery by
B-2
the other parties thereto, will constitute the valid, legal and binding
agreements of GMACCM and the Company, enforceable against GMACCM and the Company
in accordance with their terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of the Agreements which purport to provide indemnification with
respect to securities law violations.
4. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, State of Delaware, State of California or federal court or
governmental agency or body is required for the consummation by GMACCM or the
Company of the transactions contemplated by the terms of the Agreements, except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither the sale, issuance and delivery of the Certificates as provided
in the Agreements nor the consummation of any other of the transactions
contemplated by, or the fulfillment by the Company or GMACCM of any other of the
terms of, the Agreements, will result in a breach of any term or provision of
the charter or bylaws of GMACCM or the Company or any Commonwealth of
Pennsylvania, State of Delaware, State of California or federal statute or
regulation or conflict with, result in a breach, violation or acceleration of or
constitute a default under the terms of any indenture or other material
agreement or instrument to which GMACCM or the Company is a party or by which it
is bound or any order or regulation of any Commonwealth of Pennsylvania or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over GMACCM or the Company.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, is entitled to rely hereon without my prior written consent. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
B-3
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers Inc.
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Xxxxx'x Investors Service, Inc.
FITCH IBCA INC.
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
C-1
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
D-1
EXHIBIT E
May [__], 1998
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1998-C1
Pursuant to Section 4.3 of the Underwriting Agreement, dated April 28, 1998
(the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities, Inc.,
GMAC Commercial Mortgage Corporation and, Deutsche Xxxxxx Xxxxxxxx Inc. and
Xxxxxx Brothers Inc., each as representative on behalf of itself and the
underwriters set forth therein (the "Underwriters") relating to the Certificates
referenced above, the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was [__]%
CPR.
(b) With respect to each class of Certificates, set forth below is (i), the
first price at which 10% of the aggregate actual or notional, as the case may
be, principal balance of each such class of Certificates was sold to the public
at a single price, if applicable, or (ii) if more than 10% of a class of
Certificates have been sold to the public but no single price is paid for at
least 10% of the aggregate actual or notional, as the case may be, principal
balance of such class of Certificates, then the weighted average price at which
the Certificates of such class were sold expressed as a percentage of the actual
or notional, as the case may be, principal balance of such class of
Certificates, or (iii) if less than 10% of the aggregate actual or notional, as
the case may be, principal balance of a class of Certificates has been sold to
the public, the purchase price for each such class of Certificates paid by the
Underwriters expressed as a percentage of the actual or notional, as the case
may be, principal balance of such class of Certificates calculated by: (1)
estimating the fair market value of each such class of Certificates as of May
18, 1998; (2) adding such estimated fair market value to the aggregate purchase
price of each class of Certificates described in clause (i) or (ii) above; (3)
dividing each of the fair market values determined in clause (1) by the sum
obtained in clause (2); (4) multiplying the quotient obtained for each class of
Certificates in clause (3) by the purchase price paid by the Purchaser for all
the Certificates; and (5) for each class of Certificates, dividing the product
obtained from such class of Certificates in clause (4) by the original actual or
notional, as the case may be, principal balance of such class of Certificates:
Class X: __________________
Class A-1: ________________
Class A-2: ________________
Class B: __________________
E-1
Class C: __________________
Class D: __________________
Class E: __________________
Class F: __________________
* less than 10% has been sold to the public
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE XXXXXX XXXXXXXX INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
-------------------------------------
Name:
Title:
For itself and the other Underwriters
named in Schedule I to the Underwriting
Agreement
E-2
