Exhibit 1.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$2,277,325,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
CLASS X, CLASS A-1, CLASS A-2, CLASS B,
CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
----------------------
as of August 21, 1998
Xxxxxx Brothers Inc.
Three World Financial Center, 20th Floor
New York , NY 10285
and
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 1998-C2, 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 and Class E Certificates (collectively, the
"Certificates"), together with the Class F, 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 August 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 Underwriters.
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 August 21, 1998 (the "GACC
Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans (the "LB Holdings Mortgage Loans") will be acquired by the Company from
Xxxxxx Brothers Holdings Inc. ("LB Holdings") pursuant to a mortgage loan
purchase agreement, dated as of August 21, 1998 (the "LB Holdings Purchase
Agreement"), between the Company and LB Holdings. Certain of the Mortgage Loans
(the "ML Trust Mortgage Loans") will be acquired by the Company from
Restructured Asset Certificates With Enhanced Returns, Series 1998-ML Trust ("ML
Trust") pursuant to a mortgage loan purchase agreement, dated as of August 21,
1998 (the "ML Trust Purchase Agreement"), between the Company and ML Trust.
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 August 21, 1998 (the "GMACCM Purchase Agreement"), between the Company and
GMACCM (the GMACCM Mortgage Loans, together with the GACC Mortgage Loans, the LB
Holdings Mortgage Loans and the ML Trust Mortgage Loans, the "Mortgage Loans").
GACC, LB Holdings, ML Trust and GMACCM together constitute the "Mortgage Loan
Sellers" and the GACC Purchase Agreement, LB Holdings Purchase Agreement, ML
Trust 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 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 August 21, 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
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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 "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 August 27, 1998 and
rendered by Deloitte & 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 of the Prospectus Supplement--The Mortgage
Asset Pool," "Risk Factors--The Mortgage Loans" and
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"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-1-21 through A-1-28, 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 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 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:
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(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
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 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 Reserved.
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
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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 Xxxxx, Brown & Xxxxx at 10:00 a.m., New York City
time, on August 27, 1998 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 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
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 a term sheet (the
"Allocation Agreement"), that has been agreed to by each such Mortgage Loan
Seller and the Company. As a further condition to the delivery of the DTC
Registered Certificates, each Underwriter 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:
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(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:
"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
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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 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
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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 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
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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 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
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.
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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 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 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 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 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 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
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sale of the 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 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 Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
12
(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 Xxxxx, Brown
& Xxxxx, special counsel for the Company and GMACCM, dated the Closing Date and
substantially to the effect set forth in EXHIBITS A-1 AND A-2, 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-1 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 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.
13
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 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 Xxxxx, Brown & Xxxxx,
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
14
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 GACC Mortgage Loans, GMACCM Mortgage Loans or ML Trust
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 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 GACC Mortgage Loans, GMACCM Mortgage Loans or ML Trust 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 GACC Mortgage Loans, GMACCM
Mortgage Loans or ML Trust 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
15
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 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
16
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 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
17
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.
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 Bank Securities 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
18
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.
19
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.
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
-----------------------------
Title: Authorized Signatory
----------------------------
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
By: /s/ Xxx Xxxxxxx
----------------------------------
Name: Xxx Xxxxxxx
-----------------------------
Title: Director
----------------------------
S-1
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-C2, Class X-1, Class A-1, Class
A-2, Class B, Class C, Class D and Class E
Underwriters: Xxxxxx Brothers Inc. ("Lehman") and Deutsche Bank Securities Inc.
("DBS")
Underwriting Agreement, dated as of August 21, 1998
Cutoff Date: August 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
----------- ------- --------- --------- ------- ------- ------- -------
Xxxxxx 95% 100% 100% 100% 100% 100% 100%
----------- ------- --------- --------- ------- ------- ------- -------
DBS 5% 0% 0% 0% 0% 0% 0%
----------- ------- --------- --------- ------- ------- ------- -------
Total 100% 100% 100% 100% 100% 100% 100%
==== ==== ==== ==== ==== ==== ====
----------- ------- --------- --------- ------- ------- ------- -------
Initial Class Principal
Balance (or in the case Initial
Class of Class X, Class Pass-Through Purchase Fitch/Xxxxx'x/S&P
Designation Notional Amount)(1) Rate Price(2) Rating
----------- ----------------------- ------------ ---------- -----------------
X 2,530,361,727 0.823% 4.62744 AAA/Aaa/AAAr
A-1 465,000,000 6.150% 100.47608 AAA/Aaa/AAA
A-2 1,369,512,000 6.420% 101.07823 AAA/Aaa/AAA
B 126,518,000 6.420% 100.22708 AA/Aa2/AA
C 113,866,000 6.500% 99.31094 A/A2/A
D 164,474,000 6.500% 96.35573 BBB/Baa2/BBB
E 37,955,000 6.500% 92.35896 BBB-/Baa3/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 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 August 27,
1998 at the offices of Xxxxx, Brown & Xxxxx.
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.
EXHIBIT A-1
[Letterhead of Xxxxx, Xxxxx & Xxxxx]
August ___, 1998
To: Persons listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1998-C2
---------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to GMAC Commercial Mortgage Securities,
Inc. (the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1998-C2 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of August 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 (the "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 August 21, 1998 the ("GMACCM
Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "LB Holdings Mortgage Loans") were purchased by the
Company from Xxxxxx Brothers Holdings Inc. ("LB Holdings") pursuant to the
Mortgage Loan Purchase Agreement, dated as of August 21, 1998 (the "LB Holdings
Mortgage Loan Purchase Agreement"), between LB Holdings 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 August 21, 1998 (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 German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of August 21, 1998 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates") to Xxxxxx Brothers Inc.
A-1-1
and Deutsche Bank Securities Inc. as the underwriters (the "Underwriters")
named in the Underwriting Agreement, dated August 21, 1998 (the "Underwriting
Agreement"), among the Company, GMACCM and the Underwriters, and sold the Class
F, 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 Xxxxxx Brothers Inc. as initial purchaser (the "Initial
Purchaser") pursuant to the Certificate Purchase Agreement, dated August 21,
1998 (the "Certificate Purchase Agreement"), among the Company, GMACCM and the
Initial Purchaser (the Certificate Purchase Agreement, the Underwriting
Agreement, the GMACCM Mortgage Loan Purchase Agreement, the LB Holdings Mortgage
Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the ML Trust
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement,
collectively, the "Agreements"). Capitalized terms not defined herein have the
meanings set forth in the Agreements.
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
Underwriters. The Company has filed 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 August 21, 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."
In connection with rendering this opinion letter, we have examined the
Agreements and such other documents as we have deemed necessary. As to matters
of fact, we have examined and relied upon the accuracy of the representations of
parties to the Agreements contained therein and, where we have deemed
appropriate, separate additional representations or certifications of parties to
the Agreements, their respective officers and representatives or public
officials. In rendering this opinion letter, we have also assumed (i) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as copies, (ii) except as expressly
addressed below, the due authorization, execution and delivery, and the
necessary power with respect thereto, and the enforceability of such documents,
(iii) the conformity to the requirements of the Agreements, of the Mortgage
Notes, the Mortgages and other documents delivered or caused to be delivered to
the Trustee by or on behalf of the Company, (iv) the performance by all parties
to the Agreements in
A-1-2
accordance with their covenants and agreements made therein, and (v) that there
is not any other agreement that materially supplements or otherwise modifies the
agreements expressed in the Agreements.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, the corporate law of the
State of Delaware and the federal law of the United States, nor do we 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 and, in each case, as in existence on the date hereof. In
rendering the opinions set forth below, as to matters governed by the laws of
the Commonwealth of Pennsylvania or other laws that may be applicable to the
Company and GMACCM, we have relied without independent investigation on the
opinion letter of Xxxxx Xxxxxxx-Xxxx, Esq., general counsel to the Company and
GMACCM, dated the date hereof, a copy of which is annexed hereto. In addition,
in rendering the opinions set forth below, as to matters governed by the laws of
the State of California that may be applicable to GMACCM, we have relied on the
opinion letter of Xxxxxxxx & Xxxxxx, special California counsel to GMACCM, dated
the date hereof, a copy of which is annexed hereto. To the extent that we have
relied on the foregoing opinion letters, the opinions set forth below are
subject to the same assumptions, qualifications, exceptions and other
limitations set forth therein. We do not express any opinion on any issue not
expressly addressed below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the Securities
Act of 1933, as amended (the "Act"), and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
or threatened under Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date, and the Prospectus,
as of the date of the Prospectus Supplement, other than financial or statistical
information or Computational Materials or ABS Term Sheets contained or
incorporated by reference therein, complied as to form in all material respects
with the requirements of the Act and the applicable rules and regulations
thereunder.
3. To our knowledge, there are no material contracts, indentures, or
other documents (not including Computational Materials and ABS Term Sheets) of a
character required to be described or referred to under either the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The Certificates, when duly and validly executed, authenticated and
delivered in accordance
A-1-3
with the Pooling and Servicing Agreement, and paid for in and delivered in
accordance with the Underwriting Agreement and Certificate Purchase Agreement,
will be entitled to the benefits of the Pooling and Servicing Agreement.
5. The statements contained in the Prospectus and the Private Placement
Memorandum under the headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences", to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, while not purporting to discuss all
possible consequences of investment in the Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein.
6. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by
the Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
7. No consent, approval, authorization or order of any federal or State
of New York court or governmental agency or body is required for the
consummation by the Company or GMACCM of the transactions contemplated by the
terms of the Agreements, except (a) such as have been obtained under the Act and
(b) such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and the offer and sale of the Publicly Offered
Certificates by the Underwriters, as to which we express no opinion.
8. Neither the issuance and the sale of the Certificates pursuant to the
Agreements, nor the consummation of any other of the transactions contemplated
by, or the fulfillment by the Company or GMACCM of the terms of the Agreements,
will result in a breach of any term or provision of any federal or State of New
York statute or regulation or, to the best of our knowledge, conflict with,
result in a breach, violation or acceleration of or constitute a default under
any order of any federal or State of New York court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company
or GMACCM.
9. 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 all other parties thereto, each of the Agreements will
constitute a valid, legal and binding agreement of the Company and GMACCM,
enforceable against the Company and GMACCM in accordance with its 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 any of the
Agreements which purport to provide indemnification with respect to securities
law violations.
10. As described in the Prospectus and the Private Placement Memorandum,
and assuming (i) the making of appropriate elections and (ii) compliance with
all the provisions of the
A-1-4
Agreements, for federal income tax purposes, each of REMIC I, REMIC II and REMIC
III will qualify as a real estate mortgage investment conduit (a "REMIC") within
the meaning of Sections 860A through 860G (the "REMIC Provisions") of the
Internal Revenue Code of 1986 (the "Code") in effect on the date hereof, and (i)
the Class R-I Certificates will be the sole class of "residual interests" in
REMIC I, (ii) the Class R-II Certificates will be the sole class of "residual
interests" in REMIC II, (iii) the REMIC III Regular Certificates will be
"regular interests" in REMIC III, and (iv) the Class R-III Certificates will be
the sole class of "residual interests" in REMIC III.
11. For purposes of City and State of New York income and corporation
franchise tax as in effect on the date hereof, each of REMIC I, REMIC II and
REMIC III will be classified as a REMIC and not a corporation, partnership or
trust, in conformity with the federal income tax treatment of each such REMIC.
Accordingly, each of REMIC I, XXXXX XX and REMIC III will be exempt from all
City and State of New York taxation imposed on its income, franchise or capital
stock, and its assets will not be included in the calculation of any franchise
tax liability.
In rendering the opinions expressed above we express no opinion regarding
any severability provision in the Agreements or regarding the legal, valid and
binding effect or the enforceability of any indemnification provision in the
Agreements to the extent that any such provisions may be deemed to cover matters
under the federal securities laws. The opinions expressed in paragraph 9 above
are subject to the further qualification that certain of the remedial provisions
in the Agreements may be limited or rendered ineffective or unenforceable in
whole or in part under the laws of the State of New York (but the inclusion of
such provisions does not make the remedies provided by the Agreements inadequate
for the practical realization of the rights and benefits purported to be
provided thereby, except for the economic consequences of procedural or other
delay).
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented you
in connection with the transactions contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge concerning such facts should be drawn from the fact that such
representation has been undertaken by us.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. 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.
Very truly yours,
XXXXX, BROWN & XXXXX
A-1-5
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxx Brothers Inc.
Deutsche Bank Securities Inc.
LaSalle National Bank
ABN AMRO Bank N.V.
FITCH IBCA, INC.
Xxxxx'x Investors Service, Inc.
Standard & Poor's Ratings Services
A-1-6
EXHIBIT A-2
[Letterhead of Xxxxx, Xxxxx & Xxxxx]
August ___, 1998
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1998-C2
---------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to GMAC Commercial Mortgage Securities,
Inc. (the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1998-C2 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of August 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 (the "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 August 21, 1998 the ("GMACCM
Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "LB Holdings Mortgage Loans") were purchased by the
Company from Xxxxxx Brothers Holdings Inc. ("LB Holdings") pursuant to the
Mortgage Loan Purchase Agreement, dated as of August 21, 1998 (the "LB Holdings
Mortgage Loan Purchase Agreement"), between LB Holdings 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 August 21, 1998 (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 German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of August 21, 1998 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
A-2-1
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates") to Xxxxxx Brothers Inc. and Deutsche Bank Securities Inc. as the
underwriters (the "Underwriters") named in the Underwriting Agreement, dated
August 21, 1998 (the "Underwriting Agreement"), among the Company, GMACCM and
the Underwriters, and sold the Class F, 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 Xxxxxx Brothers Inc. as
initial purchaser (the "Initial Purchaser") pursuant to the Certificate Purchase
Agreement, dated August 21, 1997 (the "Certificate Purchase Agreement"), among
the Company, GMACCM and the Initial Purchaser (the Certificate Purchase
Agreement, the Underwriting Agreement, the GMACCM Mortgage Loan Purchase
Agreement, the LB Holdings Mortgage Loan Purchase Agreement, the GACC Mortgage
Loan Purchase Agreement, the ML Trust Mortgage Loan Purchase Agreement and the
Pooling and Servicing Agreement, collectively, the "Agreements"). Capitalized
terms not defined herein have the meanings set forth in the Agreements.
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
Underwriters. The Company has filed 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 August 21, 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."
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement, the
Prospectus and the Private Placement Memorandum, we are not advising herein with
respect to and do not assume any responsibility herein for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Private Placement Memorandum and make no
representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. In particular and
without limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement,
the Prospectus or the Private Placement Memorandum, or as to any Computational
Materials or ABS
A-2-2
Term Sheets, and we have not examined any accounting, financial or statistical
records from which the information and statements included therein were
derived. In addition, with limited exception, we have not reviewed any of the
Mortgage Notes, Mortgages or other documents in the Mortgage Files or made any
inquiry of any originator of any Mortgage Loan other than the Mortgage Loan
Sellers.
We do not act as general counsel to the Company or GMACCM. In our
representation of the Company and GMACCM in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
Deutsche Bank Securities Inc. and Xxxxxx Brothers Inc. and their respective
counsel in addition to us. During those conferences and telephone
conversations, the contents of the Registration Statement, the Prospectus and
the Private Placement Memorandum and related matters were discussed. With
respect to the accuracy, completeness and fairness of the information relating
to GMACCM, the other Mortgage Loan Sellers, and the Trustee and the Fiscal Agent
contained in the Prospectus and the Private Placement Memorandum under the
captions "Description of the Mortgage Asset Pool--The Mortgage Loan Sellers,"
"Servicing of the Mortgage Loans--The Servicer" and "Description of the
Certificates--The Trustee and Fiscal Agent", we have relied exclusively on those
conferences and telephone conversations and that no information inconsistent
therewith has come to our attention. In addition, we have examined the
Agreements and reviewed various opinions rendered and certificates delivered in
connection with the issuance of the Certificates. We have not otherwise
undertaken any procedures that were intended or likely to elicit information
concerning the accuracy, completeness or fairness of the statements made in the
Registration Statement, the Prospectus or the Private Placement Memorandum. We
have assumed that there is not and will not be any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements.
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that (i) the Registration Statement as of
the date it became effective, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein not misleading and (ii) the Prospectus or the
Private Placement Memorandum as of the date thereof or hereof, contained or
contains any untrue statement of a material fact or omitted or omits 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.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented the
Company and GMACCM in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence or such facts
A-2-3
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is provided for the sole benefit of each addressee hereof, and
no other person or entity is entitled to rely hereon. Copies of this letter may
not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
XXXXX, BROWN & XXXXX
A-2-4
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxx Brothers Inc.
Deutsche Bank Securities Inc.
A-2-5
EXHIBIT B-1
[GMAC Commercial Mortgage Corporation Letterhead]
August ___, 1998
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1998-C2
--------------------------------------------------
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-C2 (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 August 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 August 21, 1998 the ("GMACCM
Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "LB Holdings Mortgage Loans") were purchased by the
Company from Xxxxxx Brothers Holdings Inc. ("LB Holdings") pursuant to the
Mortgage Loan Purchase Agreement, dated as of August 21, 1998 (the "LB Holdings
Mortgage Loan Purchase Agreement"), between LB Holdings 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 August 21, 1998 (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 German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of August 21, 1998 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class B, Class C, Class
D and Class E Certificates (collectively, the "Publicly Offered Certificates")
to Xxxxxx Brothers Inc. and Deutsche Bank Securities Inc. as the underwriters
(the "Underwriters") named in the
B-1-1
Underwriting Agreement, dated as of August 24, 1998 (the "Underwriting
Agreement"), among the Company, GMACCM and the Underwriters, and sold the Class
F, 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 Xxxxxx Brothers Inc. as initial purchaser (the "Initial
Purchaser") pursuant to the Certificate Purchase Agreement, dated as of August
21, 1998 (the "Certificate Purchase Agreement"), among the Company, GMACCM and
the Initial Purchaser (the Certificate Purchase Agreement, the Underwriting
Agreement, the GMACCM Mortgage Loan Purchase Agreement, the LB Holdings Mortgage
Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement and the ML
Trust Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement,
collectively, 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:
B-1-2
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 has the requisite power and authority, corporate or other, 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 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, 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 Xxxxx, Xxxxx & Xxxxx, 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-1-3
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxx Brothers Inc.
Deutsche Bank Securities Inc.
LaSalle National Bank
ABN AMRO Bank N.V.
FITCH IBCA, INC.
Xxxxx'x Investors Service, Inc.
Standard & Poor's Ratings Services
B-1-4
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
August [__], 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-C2
-----------------------------------------
Pursuant to Section 4.3 of the Underwriting Agreement, dated August 21,
1998 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Xxxxxx Brothers Inc. and Deutsche
Bank Securities 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 August
__, 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: ______________
E-1
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.
XXXXXX BROTHERS INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
DEUTSCHE BANK SECURITIES INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
E-2
