Execution Copy
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$643,620,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-C2
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
JUNE 20, 2002
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 2002-C2, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance") and
initial pass-through rate set forth on Schedule I (such Certificates, the
"Underwritten Certificates"). The Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D and Class E Certificates, together with the Class X-1, Class
X-2, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class R-I, Class R-II and Class R-III Certificates issued
therewith (collectively, the "Certificates"), 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 of multifamily and commercial 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 June 1, 2002 among the
Company, as depositor, GMAC Commercial Mortgage Corporation ("GMACCM"), as
master servicer and special servicer, LaSalle Bank National Association, 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 Warehouse Mortgage Loans")
will be acquired by the Company from German American Capital Corporation
("GACC") pursuant to a mortgage loan purchase agreement, dated as of June 20,
2002 (the "GACC Warehouse Mortgage Loan Purchase Agreement"), between the
Company and GACC. Certain of the Mortgage Loans (the "GACC Mortgage Loans") will
be acquired by the Company from GACC pursuant to a
2002-C2 Underwriting Agreement
mortgage loan purchase agreement, dated as of June 20, 2002 (the "GACC Mortgage
Loan Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans (the "GSMC Warehouse Mortgage Loans") will be acquired by the Company from
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company ("GSMC") pursuant to a mortgage loan purchase
agreement, dated as of June 20, 2002 (the "GSMC Warehouse Mortgage Loan Purchase
Agreement"), between the Company and GSMC. Certain of the Mortgage Loans (the
"GSMC Mortgage Loans") will be acquired by the Company from GSMC pursuant to a
mortgage loan purchase agreement, dated as of June 20, 2002 (the "GSMC Mortgage
Loan Purchase Agreement"), between the Company and GSMC. 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 June 20, 2002 (the
"GMACCM Mortgage Loan Purchase Agreement"), between the Company and GMACCM. The
GACC Warehouse Mortgage Loans, the GACC Mortgage Loans, the GSMC Warehouse
Mortgage Loans, the GSMC Mortgage Loans and the GMACCM Mortgage Loans together
are referred to herein as the "Mortgage Loans." GACC, GSMC and GMACCM together
are referred to herein as the "Mortgage Loan Sellers." The GACC Warehouse
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the
GSMC Warehouse Mortgage Loan Purchase Agreement, the GSMC Mortgage Loan Purchase
Agreement and the GMACCM Mortgage Loan Purchase Agreement together are referred
to herein as the "Purchase Agreements." The "Cut-off Date" with respect to each
Mortgage Loan shall be the due date for such Mortgage Loan in June 2002.
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. 333-60030) 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 June 20, 2002 (the "Prospectus
Supplement"), to the prospectus dated June 26, 2001 (the "Basic Prospectus"),
relating to the Certificates and the method of distribution thereof. Such
registration statement (No. 333-60030) including exhibits thereto and any
information incorporated therein by reference, as amended at the date hereof, is
hereinafter called the "Registration Statement;" the Basic Prospectus and the
Prospectus Supplement and any information incorporated therein by reference
(including, without limitation, and only for purposes of clarification, any
information filed with the Commission pursuant to a Current Report on Form 8-K),
together with any amendment thereof or supplement thereto authorized by the
Company on or prior to the Closing Date for use in connection with the offering
of the Certificates, are hereinafter called the "Prospectus" and any diskette
attached to the Prospectus is hereinafter called the "Diskette." Any preliminary
form of the Prospectus Supplement which has heretofore been filed pursuant to
Rule 424, or prior to the effective date of the Registration Statement pursuant
to Rule 402(a), or 424(a) is hereinafter called a "Preliminary Prospectus
Supplement;" and any diskette attached to the Preliminary Prospectus Supplement
is hereinafter referred to as the "Preliminary Diskette." The mortgage loan and
2002-C2 Underwriting Agreement
2
related information contained on the diskette attached to any ABS Term Sheets,
Computational Materials or Collateral Term Sheets is referred to herein as the
"Term Sheet Diskette" and the tape provided by GMACCM that was used to create
the Term Sheet Diskette is referred to herein as the "Term Sheet Master Tape."
References herein to ABS Term Sheets, Computational Materials or Collateral Term
Sheets shall include any Term Sheet Diskette provided therewith. As used herein,
"Pool Information" means the compilation of information and data regarding the
Mortgage Loans covered by the Agreed Upon Procedures Letter dated June 20, 2002
and rendered by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. (a "hard copy" of which Pool
Information was initialed on behalf of each of GMACCM, GACC, GSMC 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
A (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 B (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 Series 2002-C2 Transaction-The Mortgage Pool," "-Geographic
Concentrations of the Mortgaged Properties," "-Property Types," "-Prepayment or
Call Protection Provided by the Mortgage Loans," "-Payment Terms of the Mortgage
Loans," "Risk Factors" and/or "Description of the Mortgage Pool," or contained
in or omitted from Annex A to the Prospectus Supplement or contained in or
omitted from the Diskette (the "Mortgage Loan Seller Information"), other than
that the Mortgage Loan Seller Information (exclusive of the information set
forth on pages A-10 through A-12, 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 Term Sheet Diskette or the Diskette to the extent
that the information set forth in the Diskette is different than the information
set forth in the Loan Detail or the information set forth in the Term Sheet
Diskette is different than the information set forth in the Term Sheet Master
Tape. Neither the Company nor, except as contemplated by Section 1.2(a), GMACCM
makes any
2002-C2 Underwriting Agreement
3
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:
(a) As of the Closing Date, the representations and warranties of
GMACCM in the Pooling and Servicing Agreement, in Section 2(b) of the
Supplemental Agreement, dated as of even date herewith, between GMACCM and GACC,
in Section 2(b) of the Supplemental Agreement, dated as of even date herewith,
between GMACCM and GSMC, and in Section 4(b) of the GMACCM Mortgage Loan
Purchase Agreement will be true and correct in all material respects.
(b) This Agreement has been duly authorized, executed and
delivered by GMACCM and, assuming the due authorization, execution and delivery
by the Underwriters, constitutes a valid, legal and binding obligation of
GMACCM, enforceable against GMACCM in accordance with the terms hereof, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, (ii) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws liabilities.
2002-C2 Underwriting Agreement
4
1.3 Each Underwriter represents and warrants to and agrees with the
Company and GMACCM that:
(a) With respect to each class of Underwritten Certificates, if
any, to be issued in authorized denominations of $25,000 or lesser 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 Underwritten
Certificates sold to any single Person on the date of initial sale thereof by
such Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder, including,
without limitation, Section 4.2, and, with respect to all Computational
Materials and ABS Term Sheets provided by such Underwriter to the Company
pursuant to Section 4.2, if any, such Computational Materials and ABS Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth in the Computational Materials or ABS Term
Sheets, except to the extent of any errors therein that are caused by errors in
the Pool Information) and include all assumptions material to the preparation
thereof. The Computational Materials and ABS Term Sheets provided by such
Underwriter to the Company constitute a complete set of all Computational
Materials and ABS Term Sheets delivered by such Underwriter to prospective
investors that are required to be filed with the Commission.
1.4 Each Underwriter agrees with the Company and GMACCM that it will cause
the Person(s) acquiring the Residual Certificates on the Closing Date, to
execute and deliver, the Transfer Affidavit and Agreement referred to in Section
5.02 of the Pooling and Servicing Agreement, substantially in the form of
Exhibit C-1 to the Pooling and Servicing Agreement.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, the actual principal amounts or
percentage interests set forth in Schedule I hereto in the respective classes of
Underwritten Certificates at a price for each such class set forth in Schedule I
hereto. There will be added to the purchase prices of the Underwritten
Certificates an amount equal to interest accrued thereon from June 1, 2002 to
but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the offices of ▇▇▇▇▇, Brown, ▇▇▇▇ & Maw, New York,
New York 10019 at 10:00 a.m., New York City time, on June 27, 2002 or such later
date as the Underwriters shall designate, which date and time may be postponed
by agreement between the Underwriters and the Company (such date and time of
delivery and payment for the Underwritten Certificates being herein called the
"Closing Date"). Delivery of the Underwritten Certificates (also referred to
herein as the "DTC Registered Certificates") shall be made to the respective
accounts of the Underwriters through DTC, in each case against payment by the
Underwriters to or upon the order of each Mortgage Loan Seller by wire transfer
in immediately available funds of the amount that has been agreed to by each
such Mortgage Loan Seller and the Company (net of certain expenses, which will
be paid by the Underwriters on behalf of the Company). As a further condition to
the delivery of the DTC Registered Certificates, each Underwriter shall have
2002-C2 Underwriting Agreement
5
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
Underwritten Certificates for sale to the public as set forth in the Prospectus,
and the Underwriters agree that all 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
Underwritten Certificates. As required by Policy Statement 105, each Underwriter
therefore covenants and agrees with the Company that sales of the Underwritten
Certificates made by such Underwriter in and from the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Underwritten
Certificates, subject to the following conditions to be satisfied by such
Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇/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 ▇▇▇▇▇▇/PSA Letter, the
"No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given to 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:
2002-C2 Underwriting Agreement
6
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE
CERTIFICATES NOR ANY OF ITS AFFILIATES MAKES ANY
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY AND
WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND
BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend
shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [, EXCEPT WITH
RESPECT TO THE INITIAL COLLATERAL TERM SHEET PREPARED BY THE
UNDERWRITERS,] SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL
PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE] UNDERWRITER]."
The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology
and the right to determine the types of information appearing therein.
Notwithstanding the foregoing, subsections (c)(i) and (c)(ii) will be
satisfied if all Computational Materials and ABS Term Sheets referred
to therein bear a legend in a form previously approved in writing by
the Company.
(d) Such Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their first
use, to the extent such forms have not previously been approved by the Company
for use by the Underwriters. Such Underwriter shall provide to the Company, for
filing on Form 8-K as provided in Section 5.9, copies (in such format as
required by the Company) of all Computational Materials and ABS Term Sheets that
are required to be filed with the Commission pursuant to the No-Action Letters.
Such Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed. All
Computational Materials and ABS Term Sheets described in this subsection (d)
must be provided to the Company not later than 10:00 a.m. New York City 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
2002-C2 Underwriting Agreement
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Section 4.2(d) for filing pursuant to Section 5.9), unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor.
(e) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that are required to
be filed were based on assumptions with respect to the Pool that differ from the
final Pool Information in any material respect or on Certificate structuring
terms that were revised in any material respect prior to the printing of the
Prospectus, such Underwriter shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final Pool Information and
final structuring assumptions, circulate such revised Computational Materials
and ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to such Underwriter they would purchase all or any portion of
the Certificates, and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company pursuant
to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any material
error or omission, provided that, at the request of the applicable Underwriter,
the Company will file Computational Materials or ABS Term Sheets that contain a
material error or omission if clearly marked "superseded by materials dated
____________" and accompanied by corrected Computational Materials or ABS Term
Sheets that are marked "material previously dated ____________, as corrected."
In the event that within the period during which the Prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets delivered by an Underwriter are determined, in the
reasonable judgment of the Company or such Underwriter, to contain a material
error or omission, such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Certificates, or actually purchased all or
any portion thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the Company for filing
with the Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which shall be at the expense of
such Underwriter).
(g) If an Underwriter does not provide any Computational Materials
or ABS Term Sheets to the Company pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection 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.
2002-C2 Underwriting Agreement
8
(h) In the event of any delay in the delivery by such Underwriter
to the Company of all Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5.9, the
Company shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other appropriate
actions, in each case as necessary in order to allow the Company to comply with
its agreement set forth in Section 5.9 to file the Computational Materials and
ABS Term Sheets by the time specified therein.
(i) Each Underwriter represents and warrants that it has in place,
and covenants that it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term Sheets in connection
with the offering of the Certificates.
(j) Notwithstanding anything herein to the contrary, for purposes
of this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the
extent it provided any prospective investors with any Computational Materials or
ABS Terms Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the sixth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of Exhibit C attached hereto, setting forth (i) in the
case of each class of Underwritten Certificates, (a) if less than 10% of the
aggregate actual principal balance of such class of Underwritten Certificates
has been sold to the public as of such date, the value calculated pursuant to
clause (b)(iii) of Exhibit C hereto, or, (b) if 10% or more of such class of
Underwritten Certificates has been sold to the public as of such date but no
single price is paid for at least 10% of the aggregate actual principal balance
of such class of Underwritten Certificates, then the weighted average price at
which the Underwritten Certificates of such class were sold expressed as a
percentage of the aggregate actual principal balance of such class of
Underwritten Certificates sold, or (c) the first single price at which at least
10% of the aggregate actual principal balance of such class of Underwritten
Certificates was sold to the public, (ii) the prepayment assumption used in
pricing each class of Underwritten Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to
enable it to comply with its reporting requirements with respect to each class
of Underwritten Certificates to the extent such information can in the good
faith judgment of such Underwriter be determined by it.
5. Agreements. The Company agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Underwritten Certificates, the Company will
furnish the Underwriters with a copy of each such proposed amendment or
supplement.
2002-C2 Underwriting Agreement
9
5.2 The Company will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Underwritten Certificates in which a prospectus relating to the Underwritten
Certificates is required to be delivered under the Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the 1933 Act Regulations, the Company promptly will
prepare and furnish, at its own expense, to the Underwriters, either amendments
or supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
5.4 The Company will furnish to the Underwriters, without charge, a copy
of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as the Underwriters may
reasonably request.
5.5 The Company agrees, so long as the Underwritten Certificates shall be
outstanding, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, to
deliver to the Underwriters the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Underwritten
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters shall be
responsible only for paying all costs and expenses incurred by them, including
the fees and disbursements of their counsel, in connection with the purchase and
sale of the Underwritten Certificates.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Underwritten Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Underwritten Certificates is in effect, the Company will advise the Underwriters
of the issuance of such stop order.
2002-C2 Underwriting Agreement
10
5.9 The Company shall file the Computational Materials and ABS Term Sheets
(if any) provided to it by the Underwriters under Section 4.2(d) hereof with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriters or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, each Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from Deloitte & Touche, L.L.P.,
certified public accountants, satisfactory in form and substance to the Company,
GMACCM and their respective counsels, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Company, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate except as to such matters that are not
deemed by the Company to be material. The Company shall file any corrected
Computational Materials described in Section 4.2(f) as soon as practicable
following receipt thereof. The Company also will file with the Commission within
fifteen days of the issuance of the Certificates a Current Report on Form 8-K
(for purposes of filing the Pooling and Servicing Agreement).
6. Conditions to the Obligations of the Underwriters. The Underwriters'
obligation to purchase the Underwritten Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since January 1, 2002, 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:
(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.
2002-C2 Underwriting Agreement
11
(c) 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.
6.4 The Underwriters shall have received the opinions of ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ & Maw, special counsel for the Company and GMACCM, dated the Closing Date
as to such matters reasonably requested by the Underwriters, the opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇, Esq., associate counsel for the Company and GMACCM, dated the
Closing Date as to such matters reasonably requested by the Underwriters.
6.5 The Underwriters shall have received from their counsel an opinion
dated the Closing Date in form and substance reasonably satisfactory to the
Underwriters.
6.6 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.
6.7 The respective classes of Underwritten Certificates shall have been
rated as set forth on Schedule I.
6.8 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.
6.9 The Underwriters shall have received from ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw,
special counsel to the Company, and from ▇▇▇▇▇▇▇▇▇ ▇▇▇, associate counsel, to
the Company, reliance
2002-C2 Underwriting Agreement
12
letters with respect to any opinions delivered to the rating agencies identified
on Schedule I hereto.
6.10 The Underwriters shall have received from counsel to each Mortgage
Loan Seller, the opinions substantially to the effect set forth in Section 8(e)
of each Mortgage Loan Seller's respective Purchase Agreement (or Section 8(v) of
each of the Purchase Agreements relating to the Warehouse Mortgage Loans).
6.11 The Company will furnish the Underwriters with conformed copies of
the above opinions, certificates, letters and documents as they reasonably
request.
7. Indemnification and Contribution.
7.1 The Company and GMACCM, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Underwritten Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
in the Diskette, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon any information with respect to which the Underwriters
have agreed to indemnify the Company pursuant to Section 7.2; provided that the
Company and GMACCM will be liable for any such loss, claim, damage or liability
that arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Mortgage
Loan Seller Information or Pool Information only if and to the extent that (i)
any such untrue statement is with respect to information regarding the Warehouse
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 Series 2002-C2 Transaction-The Mortgage Pool," "-Geographic
Concentrations of the Mortgaged Properties," "-Property Types," "-Prepayment or
Call Protection Provided by the Mortgage Loans," "-Payment Terms of the Mortgage
Loans," "Risk Factors" and/or "Description of the Mortgage Pool," or 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 Warehouse Mortgage Loans contained in the Prospectus Supplement under the
headings "Summary of Series 2002-C2 Transaction-The Mortgage Pool," "Risk
Factors" and/or "Description of the Mortgage Pool" or on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail), and such information does
not represent a
2002-C2 Underwriting Agreement
13
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,
or any information included in Computational Materials or ABS Term Sheets that
have been superseded by revised Computational Materials or ABS Terms Sheets (any
such information, the "Excluded Pool Information") provided that such
Underwriter has complied with its obligation to circulate revised Computational
Materials and ABS Terms Sheets in accordance with Section 4.2(e) and has
delivered them to the Company no later than one (1) Business Day after delivery
to investors; provided, however, that each of the Company and GMACCM will be
liable to the extent any such loss, claim, damage or liability is caused by
errors in the portion of the Pool Information relating to the Warehouse 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 Section 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 or
Term Sheet Diskettes that are caused by errors in the Pool Information or
information contained in the Term Sheet Master Tape; provided, however, that the
indemnification set forth in this Section 7.2 shall not apply to the extent of
any errors in the Computational Materials or ABS Term Sheets that are caused by
Excluded Pool Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company (or its
counsel) no later than one (1) Business Day after delivery to investors. In
addition, the Underwriter agrees to indemnify and hold harmless the Company,
GMACCM, their respective directors or officers and any person who controls the
Company or GMACCM within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees) caused
by, resulting from, relating to, or based upon any legend regarding original
issue discount on any Underwritten Certificate resulting from incorrect
information provided by such Underwriter in the certificates described in
Section 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either 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
2002-C2 Underwriting Agreement
14
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Underwriters, in the case of parties indemnified pursuant to
Section 7.1, and by the Company or GMACCM, in the case of parties indemnified
pursuant to Section 7.2. The indemnifying party may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel reasonably satisfactory to the indemnified
party in connection therewith, provided that the counsel so designated would
have no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under Section 7.1 or 7.2 hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
and GMACCM on the one hand and the Underwriters on the other from the offering
of the Underwritten Certificates but also the relative fault of the Company and
GMACCM on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and GMACCM on the one hand and of any of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or GMACCM or by an Underwriter, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
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
2002-C2 Underwriting Agreement
15
where the indemnified party is required to bear such expenses pursuant to
Section 7.4; which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party believes that it will be ultimately obligated to pay such
expenses. In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party
hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and GMACCM in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Company or GMACCM and their respective directors or officers or any person
controlling the Company or GMACCM and (iii) acceptance of and payment for any of
the Underwritten Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Underwritten Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or GMACCM to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or GMACCM shall
be unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company or GMACCM will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Underwritten Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Underwritten Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated to take up and pay for the Underwritten
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten Certificates set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to the nondefaulting
Underwriters, the Company or GMACCM. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date for the
Underwritten Certificates shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
2002-C2 Underwriting Agreement
16
10. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, GMACCM, the Underwriters or the officers of any of the Company, GMACCM
and the Underwriters set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or made by or
on behalf of the Company or GMACCM or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for
the Underwritten Certificates.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, and Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance
Manager with a copy to the General Counsel, GMAC Commercial Mortgage
Corporation; or, if sent to GMACCM, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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.
[SIGNATURES FOLLOW]
2002-C2 Underwriting Agreement
17
Execution Copy
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By: ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By: ------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
2002-C2 Underwriting Agreement
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-60030 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 2002-C2, Class A-1, Class A-2, Class
A-3, Class B, Class C, Class D and Class E
Underwriters: Deutsche Bank Securities Inc. ("Deutsche") and ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. ("Goldman")
Underwriting Agreement, dated June 20, 2002
Cut-off Date: The due date of any Mortgage Loan in June 2002
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 A-1 CLASS A-2 CLASS A-3 CLASS B CLASS C CLASS D CLASS E
------------------------------------------------------------------------------------------------------------------
Deutsche 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------
Goldman 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100%
------------------------------------------------------------------------------------------------------------------
Initial Class Principal Initial Purchase Ratings
Class Designation Balance (1) Pass-Through Rate(2) Price (3) ▇▇▇▇▇'▇/S&P
A-1 $56,917,000 4.321% 100.49796 Aaa/AAA
A-2 $122,788,000 5.389% 100.49540 Aaa/AAA
A-3 $396,603,000 5.713% 100.49930 Aaa/AAA
B $28,584,000 5.841% 100.49935 Aa2/AA
C $8,299,000 5.890% 100.49723 Aa3/AA-
D $23,053,000 5.919% 100.49299 A2/A
E $7,376,000 5.979% 100.49959 A3/A-
---------------
(1) Subject to a variance of plus or minus 5.0%.
(2) The Pass-Through Rate is a fixed rate.
(3) Expressed as a percentage of the Class Principal Balance of the
relevant class of Certificates to be purchased hereunder. In addition, as to
each such class of Certificates, the Underwriters will pay GMAC
2002-C2 Underwriting Agreement
I-1
Commercial Mortgage Securities, Inc. accrued interest at the initial
Pass-Through Rate therefor from June 1, 2002 to but not including the Closing
Date.
Closing Time, Date and Location: 10:00 a.m. New York City time on June 27, 2002
at the offices of Mayer, Brown, ▇▇▇▇ & Maw. 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 of $25,000 and in any
whole dollar denomination in excess thereof.
2002-C2 Underwriting Agreement
I-2
EXHIBIT A
EXCLUDED INFORMATION OF PROSPECTUS SUPPLEMENT
(All circled text and tables are excluded)
2002-C2 Underwriting Agreement
A-1
EXHIBIT B
UNDERWRITER INFORMATION
(All circled text and tables are excluded)
2002-C2 Underwriting Agreement
B-1
EXHIBIT C
June [__], 2002
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2002-C2
Pursuant to Section 4.3 of the Underwriting Agreement, dated June 20, 2002
(the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities, Inc.,
GMAC Commercial Mortgage Corporation, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Deutsche Bank
Securities Inc., each an underwriter set forth therein (collectively the
"Underwriters") relating to the Certificates referenced above, each of the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates
was ___% CPR.
(b) With respect to each class of Certificates, set forth below is
(i), the first price at which 10% of the aggregate actual 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 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 principal balance of such class of Certificates, or
(iii) if less than 10% of the aggregate actual 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
principal balance of such class of Certificates calculated by: (1) estimating
the fair market value of each such class of Certificates as of June [___], 2002;
(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
principal balance of such class of Certificates:
Class A-1: ______________
Class A-2: ______________
Class B: ______________
Class C: ______________
Class D: ______________
Class E: ______________
* less than 10% has been sold to the public
2002-C2 Underwriting Agreement
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The prices set forth above do not include accrued interest with respect
to periods before closing.
DEUTSCHE BANK SECURITIES INC.
By:
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Name:
Title:
By:
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Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
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Name:
Title:
2002-C2 Underwriting Agreement
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