Exhibit 1.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,160,865,000
Mortgage Pass-Through Certificates, Series 1999-C1
Class X, Class A-1, Class A-2, Class B,
Class C, Class D and Class E
UNDERWRITING AGREEMENT
as of February 2, 1999
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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"), the respective classes of Mortgage Pass-Through Certificates,
Series 1999-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 (such Certificates, the
"Underwritten Certificates"). The Class X, Class A-1, Class A-2, Class B, Class
C, Class D and Class E Certificates (collectively, the "Certificates"), together
with the Class F, Class G, Class H, Class J and Class K 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 February 1, 1999 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"), and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). The Certificates are described in the Basic Prospectus and the
Prospectus Supplement (each as hereinafter defined) which the Company has
furnished to the Underwriters.
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 February 2, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"ML Trust Mortgage Loans") will be acquired by the Company from LaSalle National
Bank as Trustee for Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust ("ML Trust") pursuant to a mortgage loan purchase
agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan Purchase
Agreement"), between the Company and ML Trust. 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 February 2, 1999 (the "GACC Mortgage Loan Purchase Agreement"),
between the Company and GACC (the GACC Mortgage Loans, together with the GMACCM
Mortgage Loans and the ML Trust Mortgage Loans, the "Mortgage Loans"). GMACCM,
ML Trust and GACC together constitute the "Mortgage Loan Sellers." The "Cut-off
Date" with respect to each Mortgage Loan shall be the due date for such Mortgage
Loan in February 1999.
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. 333-64963) 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 Underwriters. 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 February 2, 1999 (the
"Prospectus Supplement"), to the prospectus dated November 5, 1998 (the
"Basic Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No. 333-64963) 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
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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 "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 February 2, 1999 and rendered by
Xxxxxxxx & Xxxxxx, L.L.P. (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 Information--The Mortgage Pool," "Risk
Factors--Risks Related to 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 the Mortgage Loan
Seller Information (exclusive of the information set forth on pages A-8
through A-11, inclusive, of Annex A to the Prospectus Supplement (the "Loan
Detail") and the information on the Diskette) that represents a restatement
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 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
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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
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, in Section 2(b) of each
Supplemental Agreement and in Section 4(b) of the GMACCM Mortgage Loan
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
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.
1.3 Each Underwriter represents and warrants to and agrees with the Company
and GMACCM that:
(a) With respect to each class of Underwritten Certificates, if any,
to be issued in authorized denominations of $25,000 or less initial
principal balance or
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evidencing percentage interests in such class of less than 20%, as the case
may be, the fair market value of all such Underwritten 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.
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 Underwritten Certificates at a price for
each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Underwritten 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 Underwritten
Certificates shall be made at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
at 10:00 a.m., New York City time, on February 9, 1999 or such later date as the
Underwriters shall designate, which date and time may be postponed by agreement
between the Underwriters and the Company (such date and time of delivery and
payment for the Underwritten Certificates being herein called the "Closing
Date"). Delivery of the Underwritten Certificates (also referred to herein as
the "DTC Registered Certificates") shall be made to the respective accounts of
the Underwriters through DTC, in each case against payment by the Underwriters
to or upon the order of GMACCM by wire transfer in immediately available funds
of the amount that has been agreed to by GMACCM and the Company (net of certain
expenses, which will be paid by the Underwriters on behalf of the Company). As a
further condition to the delivery of the DTC Registered Certificates, each
Underwriter shall have furnished by telephonic notice to GMACCM the federal
reference number for the related wire transfer to GMACCM 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
Underwritten 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
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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 Underwritten Certificates. As required by Policy
Statement 105, each Underwriter therefore covenants and agrees with the Company
that sales of the Underwritten 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 Underwritten
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.
(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:
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"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 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
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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 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
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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) The Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the No-Action Letters with respect to the generation
and use of Computational Materials and ABS Term Sheets in connection with
the offering of the Certificates.
(j) 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 Underwritten Certificates, (a) if less than 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten 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 Underwritten 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 Underwritten Certificates, then the weighted average price at which the
Underwritten 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 Underwritten 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 Underwritten Certificates was sold to the public, (ii)
the prepayment assumption used in pricing each class of Underwritten
Certificates, and (iii) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Underwritten Certificates to the
extent such information can in the good faith judgment of such Underwriter be
determined by it.
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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 Underwritten Certificates, the Company will
furnish the Underwriters 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 Underwritten Certificates in which a prospectus relating to the Underwritten
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 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 Underwriters, 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 Underwriters may reasonably
request.
5.5 The Company agrees, so long as the Underwritten 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 Underwriters 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
Underwritten Certificates for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Underwritten
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.
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 Underwritten Certificates.
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5.8 If, during the period after the Closing Date in which a prospectus
relating to the Underwritten 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
Underwritten Certificates is in effect, the Company will advise the Underwriters
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 Deloitte & Touche, L.L.P.,
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 Underwritten 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 January 1, 1999, 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 Prospectus, the Pooling and Servicing Agreement and
various other closing documents, and that, to the best of his or her knowledge
after reasonable investigation:
11
(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, 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 and the
opinion of Xxxxxxxx & Xxxxxx, special California counsel for the GMACCM, dated
the Closing Date that 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.
6.6 The Underwriters shall have received from their counsel an opinion
dated the Closing Date in form and substance reasonably satisfactory to the
Underwriters.
6.7 The Underwriters shall have received from Deloitte & Touche, L.L.P.,
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 Asset
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 Underwritten 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
12
matters on representations and warranties made by, and on 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 GMACCM Mortgage Loan Purchase Agreement, Exhibit C-3 of the GACC
Mortgage Loan Purchase Agreement and Section 8(d) of the ML Trust Mortgage Loan
Purchase Agreement.
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 Underwritten 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 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
13
Loans contained in the Prospectus Supplement under the headings "Summary
Information-The Mortgage Pool," "Risk Factors-Risks Related to 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 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 Mortgage Loans
contained in the Prospectus Supplement under the headings "Summary
Information-The Mortgage Pool," "Risk Factors-Risks Related to 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 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,
or any information included in Computational Materials or ABS Term Sheets that
have been superseded by revised Computational Materials or ABS Terms Sheets (any
such information, the "Excluded Pool Information") provided that such
Underwriter has complied with its obligation to circulate revised Computational
Materials and ABS Terms Sheets in accordance with Section 4.2(e) and has
delivered them to the Company no later than one (1) Business Day after delivery
to investors; provided, however, 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 Pool Information relating to the 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; provided, however, that the
indemnification set forth in this Section 7.2 shall not apply to the extent of
any errors in the Computational Materials or ABS Term Sheets that are caused by
Excluded Pool Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company no later
than one (1) Business Day after delivery to investors. 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 Underwritten 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
14
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 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 Underwriters, 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 Underwritten 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.
15
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 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 Underwritten Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Underwritten 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 Underwritten Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Underwritten 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 Underwritten
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten 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 Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to
16
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
Underwritten 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.
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 Underwritten 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: Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxx, Deutsche Bank Securities Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx and Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx; 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 Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
18
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-64963 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 1999-C1, Class X, Class A-1, Class
A-2, Class B, Class C, Class D and Class E
Underwriters: Xxxxxxx, Xxxxx & Co. ("Goldman"), Deutsche Bank Securities Inc.
("DBS") and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ").
Underwriting Agreement, dated as of February 2, 1999
Cutoff Date: due date of any Mortgage Loan in February 1999
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(1) Class A-1 Class A-2 Class B Class C Class D Class E
=================================================================================================================
Goldman 50% 50% 50% 50% 50% 50% 50%
-----------------------------------------------------------------------------------------------------------------
DBS 25% 25% 25% 25% 25% 25% 25%
-----------------------------------------------------------------------------------------------------------------
DLJ 25% 25% 25% 25% 25% 25% 25%
-----------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100%
-----------------------------------------------------------------------------------------------------------------
(1) As a percentage of the Class Notional Amount of $667,179,654.
Initial Class
Principal Balance
(or in the case of
Class X, Class
Notional Initial Purchase S&P/Fitch
Class Designation Amount)(1)(2) Pass-Through Rate Price(2) Rating
----------------- ------------------ ----------------- -------- ---------
X $667,179,654 0.690% 4.498540 AAAr/AAA
A-1 $240,000,000 5.830% 100.494900 AAA/AAA
A-2 $680,686,000 6.175% 101.515900 AAA/AAA
B $ 66,716,000 6.295% 101.513600 AA/AA
C $ 66,717,000 6.590% 101.498700 A/A
D $ 86,731,000 6.865% 97.206600 BBB/BBB
E $ 20,015,000 6.865% 90.633100 BBB-/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 hereunder. In addition, as to each such class of 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.
Closing Time, Date and Location: 10:00 a.m. New York City time on February 9,
1999 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 and Class E Certificates and $1,000,000 in the case of
the Class X Certificates, and integral multiples of $1 in excess thereof.
2
EXHIBIT A
Form of Opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
February __, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-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 1999-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 February 1, 1999 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
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 February 2, 1999 (the
"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 February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company. Certain of the Mortgage
Loans (the "ML Trust Mortgage Loans") were purchased by the Company from LaSalle
National Bank as Trustee for Restructured Asset Certificates With Enhanced
Returns, Series 1998-ML Trust ("ML Trust") pursuant to the Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold a portion of the Class X and all of the Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates to Xxxxxxx, Xxxxx & Co.,
Deutsche Bank Securities Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation as the underwriters (the "Underwriters") named in the Underwriting
Agreement, dated as of February 2, 1999 (the "Underwriting Agreement"), among
the Company, GMACCM and the Underwriters. The Company sold a portion of the
Class X to GMACCM pursuant to the Class X Certificate Purchase Agreement, dated
as of February 2, 1999 (the "Class X Certificate Purchase Agreement"), between
the Company and GMACCM, and all of the Class F, Class G, Class H, Class J and
Class K Certificates to GMACCM as initial purchaser (in such capacity, an
"Initial Purchaser") pursuant to the Certificate Purchase Agreement, dated as of
February 2, 1999 (the "Certificate Purchase Agreement"), between the Company and
GMACCM. The Company sold the Class R-I, Class R-II and Class R-III Certificates
to Xxxxxxx, Xxxxx & Co. as initial purchaser (in such capacity, an Initial
Purchaser"). The Certificate Purchase Agreement, the
Underwriting Agreement, the Class X Certificate Purchase Agreement, the GMACCM
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the
ML Trust Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement are collectively referred to as the "Agreements". Capitalized terms
not defined herein have 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. GMACCM has the requisite power and
authority, corporate or other, to enter into and perform its obligations under
the Agreements. 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 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,
2
(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. 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. 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, 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
3
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxxx, Xxxxx & Co.
Deutsche Bank Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Norwest Bank Minnesota, National Association
Fitch IBCA, Inc.
Standard & Poor's Ratings Services
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
EXHIBIT E
February [ ], 1999
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 1999-C1
Pursuant to Section 4.3 of the Underwriting Agreement, dated February 2,
1999 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Xxxxxxx Xxxxx & Co., Deutsche Bank
Securities Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, each as
representative on behalf of itself and the underwriters set forth therein (the
"Underwriters") relating to the Class X (solely with respect to a portion equal
to an initial Class Notional Amount equal to $667,179,454), Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates (together, the
"Certificates"), each of 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
February [___], 1999; (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: _______________
Class C: _______________
Class D: _______________
Class E: _______________
* 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.
XXXXXXX, XXXXX & CO.
By:
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
--------------------------------
Name:
Title:
2
