Execution Copy
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$941,294,000
Mortgage Pass-Through Certificates, Series 1997-C2
Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D and Class E
UNDERWRITING AGREEMENT
as of December 17, 1997
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
and
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), for whom each of you is acting as representative (together, the
"Representatives"), the respective classes of Mortgage Pass-Through
Certificates, Series 1997-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 A-3, Class B, Class C, Class D and Class E
Certificates (collectively, the "Certificates"), together with the Class F,
Class G, Class H, Class J and Class K Certificates issued therewith, will
evidence the entire interest in the Trust Fund (as defined in the Pooling and
Servicing Agreement referred to below) consisting primarily of a pool (the
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"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 December 1, 1997 (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"), and
State Street Bank and Trust Company, as trustee (the "Trustee"). The
Certificates are described in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to the
Representatives.
Certain of the Mortgage Loans (the "GSMC Mortgage Loans") will be acquired
by the Company from Xxxxxxx Xxxxx Mortgage Company ("GSMC") pursuant to a
mortgage loan purchase agreement, dated as of December 17, 1997 (the "GSMC
Purchase Agreement"), between the Company and GSMC. 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 December 17, 1997 (the "GACC Purchase Agreement"),
between the Company and GACC. Certain of the Mortgage Loans (the "GMACCM
Mortgage Loans") will be acquired by the Company from GMACCM pursuant to a
mortgage loan purchase agreement, dated as of December 17, 1997 (the "GMACCM
Purchase Agreement"), between the Company and GMACCM (the GMACCM Mortgage Loans,
together with the GSMC Mortgage Loans and the GACC Mortgage Loans, the "Mortgage
Loans"). GSMC, GACC and GMACCM together constitute the "Mortgage Loan Sellers"
and the GSMC Purchase Agreement, the GACC Purchase Agreement and the GMACCM
Purchase Agreement together constitute the "Purchase Agreements."
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the
Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-37717) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Act"),
of Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy
of which, as amended to the date hereof, has heretofore been delivered to
the Representatives. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the rules and regulations of the Commission
under the Act (the "1933 Act Regulations") a supplement dated December 17,
1997 (the "Prospectus Supplement"), to the prospectus
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dated December 17, 1997 (the "Basic Prospectus"), relating to the
Certificates and the method of distribution thereof. Such registration
statement (No. 333-37717) including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof, is
hereinafter called the "Registration Statement;" the Basic Prospectus and
the Prospectus Supplement and any information incorporated therein by
reference (including, without limitation, and only for purposes of
clarification, any information filed with the Commission pursuant to a
Current Report on Form 8-K), together with any amendment thereof or
supplement thereto authorized by the Company on or prior to the Closing
Date for use in connection with the offering of the Certificates, are
hereinafter called the "Prospectus" and any diskette attached to the
Prospectus is hereinafter called the "Diskette." Any preliminary form of
the Prospectus Supplement which has heretofore been filed pursuant to Rule
424, or prior to the effective date of the Registration Statement pursuant
to Rule 402(a), or 424(a) is hereinafter called a "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 December 17, 1997 and rendered by Xxxxxxxx & Touche, 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
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Information"); and provided, further, that neither the Company nor, except
as contemplated by Section 1.2(a), GMACCM makes any representations or
warranties as to any information regarding the Mortgage Loans or the
Mortgage Loan Sellers contained in or omitted from the portions of the
Prospectus Supplement under the headings "Summary of the Prospectus
Supplement--The Mortgage Asset Pool," "Risk Factors--The Mortgage Loans"
and "Description of the Mortgage Asset Pool" or contained in or omitted
from Annex A to the Prospectus Supplement or contained in or omitted from
the Diskette (the "Mortgage Loan Seller Information"), other than that any
Mortgage Loan Seller Information (exclusive of the information set forth on
pages A-6 through A-8, 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
Representatives on behalf of the Underwriters, constitutes a valid, legal
and binding obligation of the Company, enforceable against the Company in
accordance with the terms hereof, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (ii) generally principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
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(e) As of the Closing Date (as defined herein), the Certificates will
conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in the
Pooling and Servicing Agreement will be true and correct in all material
respects.
1.2 GMACCM represents and warrants to and agrees with you that:
(a) As of the Closing Date, the representations and warranties of
GMACCM in the Pooling and Servicing Agreement and in Section 4(b) of the
GMACCM Purchase Agreement will be true and correct in all material
respects.
(b) This Agreement has been duly authorized, executed and delivered by
GMACCM and, assuming the due authorization, execution and delivery by the
Representatives on behalf of the Underwriters, constitutes a valid, legal
and binding obligation of GMACCM, enforceable against GMACCM in accordance
with the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (iii) public policy considerations underlying the securities laws
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
1.3 Each Representative, on behalf of itself and each Underwriter,
represents and warrants to and agrees with the Company and GMACCM that:
(a) With respect to each class of Certificates, if any, to be issued
in authorized denominations of $25,000 or less initial principal balance or
evidencing percentage interests in such class of less than 20%, as the case
may be, the fair market value of all such Certificates sold to any single
Person on the date of initial sale thereof by such Underwriter will not be
less than $100,000.
(b) As of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder, including, without
limitation, Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by such Underwriter to the Company pursuant to
Section 4.2, if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets,
except to the extent of any errors therein that are caused by errors in the
Pool Information) and include all assumptions material to the preparation
thereof. The Computational
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Materials and ABS Term Sheets provided by such Underwriter to the Company
constitute a complete set of all Computational Materials and ABS Term
Sheets delivered by such Underwriter to prospective investors that are
required to be filed with the Commission.
1.4 Each Representative represents and warrants to the Company and GMACCM
that it has been authorized by each of the other Underwriters to execute and
deliver this Agreement on behalf of such Underwriters.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, the actual or notional, as the
case may be, principal amounts or percentage interests set forth in Schedule I
hereto in the respective classes of Certificates at a price for each such class
set forth in Schedule I hereto. There will be added to the purchase prices of
the Certificates an amount equal to interest accrued thereon from the Cut-off
Date to but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Certificates shall
be made at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP at 10:00 a.m., New
York City time, on December 23, 1997 or such later date as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company (such date and time of delivery and payment for
the Certificates being herein called the "Closing Date"). Delivery of the
Certificates (also referred to herein as the "DTC Registered Certificates")
shall be made to the Representatives for the respective accounts of the
Underwriters through DTC, in each case against payment by the Underwriters to or
upon the order of each Mortgage Loan Seller by wire transfer in immediately
available funds of the amount to which such Mortgage Loan Seller is entitled in
accordance with the terms of an allocation agreement dated the date hereof (the
"Allocation Agreement"), to which each such Mortgage Loan Seller and the
Company, among others, are parties. As a further condition to the delivery of
the DTC Registered Certificates, each Representative shall have furnished by
telephonic notice to the applicable Mortgage Loan Seller the federal reference
number for the related wire transfer to such Mortgage Loan Seller and shall have
furnished to the Company each such federal reference number as soon as
practicable after such federal reference number becomes available.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Certificates for sale to the public as set forth in the Prospectus, and the
Underwriters agree that all such offers and sales by the Underwriters shall be
made in compliance with all applicable laws and regulations. It is further
understood that the Company, in reliance upon a no-filing letter from the
Attorney General of the State of New York granted pursuant to Policy Statement
105, has not and will not file an offering statement pursuant to Section 352-e
of the General Business
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Law of the State of New York with respect to the Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with the
Company that sales of the Certificates made by such Underwriter in and from the
State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Certificates, subject
to the following conditions to be satisfied by such Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), as well as the PSA Letter referred to below. In connection with
the use of ABS Term Sheets, such Underwriter shall comply with all
applicable requirements of the No-Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by or
at the direction of such Underwriter.
(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
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APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend shall also
include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [,EXCEPT WITH
RESPECT TO THE INITIAL COLLATERAL TERM SHEET PREPARED BY THE
UNDERWRITERS,] SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL
PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE] UNDERWRITER]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein. Notwithstanding the
foregoing, subsections (c)(i) and (c)(ii) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form previously approved in writing by the Company.
(d) Such Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Company for use by the Underwriters. Such Underwriter shall provide to
the Company, for filing on Form 8-K as provided in Section 5.9, copies (in
such format as required by the Company) of all Computational Materials and
ABS Term Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term Sheets
described in this subsection (d) must be provided to the Company not later
than 10:00 a.m. New York time one business day before filing thereof is
required pursuant to the terms of this Agreement. Such Underwriter agrees
that it will not provide to any investor or prospective investor in the
Certificates any Computational Materials or ABS Term Sheets on or after the
day on which Computational Materials and ABS Term Sheets are required to be
provided to the Company pursuant to this Section 4.2(d) (other than copies
of Computational Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing pursuant to
Section 5.9),
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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).
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(g) If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Company pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and such Underwriter shall provide the Company
with a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by such Underwriter to
the Company of all Computational Materials and ABS Term Sheets required to
be delivered in accordance with subsection (d) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to Section 5.9,
the Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions, in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(i) Notwithstanding anything herein to the contrary, for purposes of
this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the sixth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of Exhibit E attached hereto, setting forth (i) in the
case of each class of Certificates, (a) if less than 10% of the aggregate actual
or notional, as the case may be, principal balance of such class of Certificates
has been sold to the public as of such date, the value calculated pursuant to
clause (b)(iii) of Exhibit E hereto, or, (b) if 10% or more of such class of
Certificates has been sold to the public as of such date but no single price is
paid for at least 10% of the aggregate actual or notional, as the case may be,
principal balance of such class of Certificates, then the weighted average price
at which the Certificates of such class were sold expressed as a percentage of
the aggregate actual or notional, as the case may be, principal balance of such
class of Certificates sold, or (c) the first single price at which at least 10%
of the aggregate actual or notional, as the case may be, principal balance of
such class of Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to
enable it to comply with its reporting requirements with respect to each class
of Certificates to the
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extent such information can in the good faith judgment of such Underwriter be
determined by it.
5. Agreements. The Company agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Certificates, the Company will furnish the
Representatives with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Certificates in which a prospectus relating to the Certificates is required
to be delivered under the Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to the Representatives on behalf of the several
Underwriters, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
5.4 The Company will furnish to the Representatives, without charge, a copy
of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as the Representatives may
reasonably request.
5.5 The Company agrees, so long as the Certificates shall be outstanding,
or until such time as the several Underwriters shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Representatives the annual statement as to compliance delivered to the Trustee
pursuant to Section 3.13 of the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Certificates;
provided, however, that the Company shall not be required to
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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 sale of the Certificates is
in effect, the Company will advise the Representatives of the issuance of such
stop order.
5.9 The Company shall file the Computational Materials and ABS Term Sheets
(if any) provided to it by the Underwriters under Section 4.2(d) hereof with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriters or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, each Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from 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
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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, 1996, 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.
6.4 GMACCM shall have delivered to the Underwriters a certificate, dated
the Closing Date, of the President, a Senior Vice President or a Vice President
of GMACCM to the effect that the signer of such certificate has examined the
Pooling and Servicing Agreement and this Agreement and that, to the best of his
or her knowledge after reasonable investigation, the representations and
warranties of GMACCM contained in the Pooling and Servicing Agreement and in
this Agreement are true and correct in all material respects.
6.5 The Underwriters shall have received the opinions of Xxxxxx, Xxxxxxxxxx
& Xxxxxxxxx LLP, special counsel for the Company and GMACCM, dated the Closing
Date and substantially to the effect set forth in Exhibits A-1 and A-2, and the
opinion of Xxxxx Xxxxxxx-Xxxx, Esq., general counsel for the Company and GMACCM,
dated the Closing Date and substantially to the effect set forth in Exhibit B.
6.6 The Underwriters shall have received from Brown & Wood, LLP, counsel
for the Underwriters, an opinion dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters.
6.7 The Underwriters shall have received from 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,"
E-13
"Description of the Certificates" and "Yield and Maturity Considerations" agrees
with the records of the Company and the Mortgage Loan Sellers excluding any
questions of legal interpretation and (b) the letter prepared pursuant to
Section 5.9 hereof.
6.8 The respective classes of Certificates shall have been rated as set
forth on Schedule I.
6.9 The Underwriters shall have received, with respect to the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to standard limitations regarding laws
affecting creditors' rights and general principles of equity, the enforceability
of the Pooling and Servicing Agreement against such party. Such opinion may
express its reliance as to factual matters on representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of, parties to this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
6.10 The Underwriters shall have received from Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, special counsel to the Company, and from Xxxxx Xxxxxxx-Xxxx,
Esq., general counsel to the Company, reliance letters with respect to any
opinions delivered to the rating agencies identified on Schedule I hereto.
6.11 The Underwriters shall have received from counsel to each Mortgage
Loan Seller, the opinions substantially to the effect set forth in Exhibit D-3A
and D-3B of the respective Purchase Agreements. The Company will furnish the
Underwriters with conformed copies of the above opinions, certificates, letters
and documents as they reasonably request.
7. Indemnification and Contribution.
7.1 The Company and GMACCM, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference therein, or in the
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Prospectus or incorporated by reference therein (if used within the period set
forth in Section 5.3 hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or in the Diskette, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages, or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
any information with respect to which the Underwriters have agreed to indemnify
the Company pursuant to Section 7.2; provided that the Company and GMACCM will
be liable for any such loss, claim, damage or liability that arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein relating to the Mortgage Loan Seller Information
or Pool Information only if and to the extent that (i) any such untrue statement
is with respect to information regarding the GMACCM Mortgage Loans contained in
the Loan Detail or, to the extent consistent with Annex A to the Prospectus
Supplement, the Diskette, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding any or all of the Mortgage Loan Sellers or any or all of the Mortgage
Loans contained in the Prospectus Supplement under the headings "Summary of
Prospectus Supplement - The Mortgage Asset Pool," "Risk Factors - The Mortgage
Loans" and/or "Description of the Mortgage Asset Pool" or on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail) and such information
represents a restatement or aggregation of information contained in the Loan
Detail, or (iii) any such untrue statement or alleged untrue statement or
omission or alleged omission is with respect to information regarding GMACCM or
the GMACCM Mortgage Loans contained in the Prospectus Supplement under the
headings "Summary of Prospectus Supplement - The Mortgage Asset Pool," "Risk
Factors - The Mortgage Loans" and/or "Description of the Mortgage Asset Pool" or
on Annex A to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; and provided that none of the Company, GMACCM or
any Underwriter will be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein relating to the Excluded Information, except that each of the Company
and GMACCM will be liable to the extent any such loss, claim, damage or
liability is caused by errors in the portion of the Pool Information relating to
the GMACCM Mortgage Loans.
7.2 Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Company, GMACC M, 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
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extent of any errors in the Computational Materials or ABS Term Sheets that are
caused by errors in the Pool Information. In addition, the Underwriter agrees to
indemnify and hold harmless the Company, GMACCM, their respective directors or
officers and any person who controls the Company or GMACCM within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act against any and
all losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) caused by, resulting from, relating to,
or based upon any legend regarding original issue discount on any Certificate
resulting from incorrect information provided by such Underwriter in the
certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 7.1 or 7.2, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Representatives, in the case of
parties indemnified pursuant to Section 7.1, and by the Company or GMACCM, in
the case of parties indemnified pursuant to Section 7.2. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel reasonably
satisfactory to the indemnified party in connection therewith provided that the
counsel so designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of any
proceeding the indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for release of the indemnified party in connection with all matters
relating to the proceeding which have been asserted against the
E-16
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under Section 7.1 or 7.2 hereof or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
and GMACCM on the one hand and the Underwriters on the other from the offering
of the Certificates but also the relative fault of the Company and GMACCM on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Company and GMACCM on the one hand and of any of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or
GMACCM or by an Underwriter, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in Section 7.4 above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses 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
E-17
controlling an Underwriter or by or on behalf of the Company or GMACCM and their
respective directors or officers or any person controlling the Company or GMACCM
and (iii) acceptance of and payment for any of the Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Certificates provided for
herein is not consummated because of any failure or refusal on the part of the
Company or GMACCM to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or GMACCM shall be unable to
perform their respective obligations under this Agreement. If the Underwriters
terminate this Agreement in accordance with this Section 8, the Company or
GMACCM will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by the Underwriters in connection with the proposed purchase
and sale of the Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Certificates agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Underwriters
shall be obligated to take up and pay for the Certificates that the defaulting
Underwriter agreed but failed to purchase; provided, however, that in the event
that the initial principal amount of Certificates that the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
principal balance of all of the Certificates set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Certificates, and if such
nondefaulting Underwriters do not purchase all of the Certificates, this
Agreement will terminate without liability to the nondefaulting Underwriters,
the Company or GMACCM. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date for the Certificates shall be postponed for
such period, not exceeding seven days, as the nondefaulting Underwriters shall
determine in order that the required changes in the Registration Statement, the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and to any nondefaulting Underwriter for
damages occasioned by its default hereunder.
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.
E-18
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxx Xxxxxxx and Deutsche Xxxxxx Xxxxxxxx Inc., 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 000 Xxxxxxx
Xxxx, X.X. Box 1015, Horsham, Pennsylvania 19044-8015, Attention: Structured
Finance Manager with a copy to the General Counsel, GMAC Commercial Mortgage
Corporation; or, if sent to GMACCM, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxxxx Xxxx, X.X. Box 1015, Horsham, Pennsylvania
19044-8015, Attention: Structured Finance Manager with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
E-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 Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written.
XXXXXXX, XXXXX & CO.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact
DEUTSCHE XXXXXX XXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
For itself and the other
Underwriters named in Schedule I to
the foregoing Agreement.
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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 1997-C2, Class X-1, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D and Class E
Underwriters: Xxxxxxx, Xxxxx & Co. ("Goldman") , Deutsche Xxxxxx Xxxxxxxx Inc.
("DMG"), and Residential Funding Securities Corporation ("RFSC")
Underwriting Agreement, dated as of December 17, 1997
Cut-off Date: December 1, 1997
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 A-3 Class B Class C Class D Class E
----------- ------- --------- --------- --------- ------- ------- ------- -------
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. .......................... 65.00% 57.00% 65.00% 61.00% 60.00% 65.00% 65.00% 65.00%
------------------------------------------------------------------------------------------------------------------------------------
Deutsche Xxxxxx Xxxxxxxx Inc. ................. 35.00% 30.00% 35.00% 33.00% 33.00% 35.00% 35.00% 35.00%
------------------------------------------------------------------------------------------------------------------------------------
Residential Funding Securities 0% 13.00% 0% 6.00% 7.00% 0% 0% 0%
Corporation ...................................
------------------------------------------------------------------------------------------------------------------------------------
Total ........................................ 100% 100% 100% 100% 100% 100% 100% 100%
===== ===== ===== ===== ===== ===== ===== =====
------------------------------------------------------------------------------------------------------------------------------------
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Initial Class Principal Balance
Class (or in the case of Initial Purchase Moody's/DCR
Designation Class X, Class Notional Amount)(1) Pass-Through Rate Price(2) Rating
----------- ---------------------------------- ----------------- -------- ------
X $1,072,702,289 Variable 8.047473 Aaa/AAA
A-1 $228,705,000 6.451% 100.308185 Aaa/AAA
A-2 $57,000,000 6.550% 100.308185 Aaa/AAA
A-3 $433,005,000 6.566% 100.308185 Aaa/AAA
B $69,725,000 6.703% 100.308185 Aa2/AA
C $69,725,000 6.910% 100.308185 A2/A-
D $32,181,000 7.192%(3) 99.808185 Baa1/BBB
E $50,953,000 7.624%(4) 99.808185 Baa3/NR
----------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class Notional
Amount, as applicable, of the relevant class of Certificates to be
purchased. In addition, as to each such class of the Certificates, the
Underwriters will pay GMAC Commercial Mortgage Securities, Inc. accrued
interest at the initial Pass-Through Rate therefor from the Cut-off Date to
but not including the Closing Date.
(3) Lesser of fixed rate or Weighted Average Net Mortgage Rate.
(4) Lesser of fixed rate or Weighted Average Net Mortgage Rate.
--------------------------------------------------------------------------------
Closing Time, Date and Location: 10:00 a.m. New York City time on December 23,
1997 at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP.
--------------------------------------------------------------------------------
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The
E-22
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, Class A-2 and Class A-3 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.
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EXHIBIT A-1
FORM OF OPINION
[Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP Letterhead]
December 23, 1997
[Addressees]
Re: GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1997-C2
--------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to GMAC Commercial Mortgage Securities, Inc., a
Delaware corporation (the "Depositor") and GMAC Commercial Mortgage Corporation,
a California corporation ("GMACCM"), in connection with the issuance by the
Depositor of Mortgage Pass-Through Certificates, Series 1997-C2 (the
"Certificates"), evidencing undivided interests in a trust fund (the "Trust
Fund") consisting primarily of certain commercial mortgage loans (the "Mortgage
Loans"), pursuant to a Pooling and Servicing Agreement, dated as of December 1,
1997 (the "Pooling and Servicing Agreement"), by and among the Depositor,
GMACCM, as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee.
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Depositor from GMACCM pursuant to a Mortgage Loan Purchase Agreement,
dated as of December 17, 1997, between GMACCM and the Depositor (the "GMACCM
Mortgage Loan Purchase Agreement"). Certain of the Mortgage Loans (the "GSMC
Mortgage Loans") were purchased by the Depositor from Xxxxxxx Xxxxx Mortgage
Company ("GSMC") pursuant to a Mortgage Loan Purchase Agreement, dated December
17, 1997, between GSMC and the Depositor (the "GSMC Mortgage Loan Purchase
Agreement"). Certain of the Mortgage Loans (the "GACC Mortgage Loans") were
purchased by the Depositor from German American Capital Corporation ("GACC" and,
together with GMACCM and GSMC, the "Mortgage Loan Sellers") pursuant to a
Mortgage Loan Purchase Agreement, dated December 17, 1997, between GACC and the
Depositor (the "GACC Mortgage Loan Purchase Agreement").
The Class X, Class A-1, Class A-2, Class A-3, Class B, Class C, Class D and
Class E Certificates (the "Publicly Offered Certificates") are included in a
Registration Statement on Form S-3 (File No. 333-37717) filed by the Depositor
with the Securities and Exchange
E-24
Commission (the "Commission") (as amended as of the date hereof, the
"Registration Statement"), and were offered by the prospectus, dated December
17, 1997 (the "Base Prospectus"), as supplemented by the prospectus supplement,
dated December 17, 1997 (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus"), each filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the Securities Act
of 1933, as amended (the "Act"). Class F, Class G, Class H, Class J, Class K,
Class R-I, Class R-II and Class R-III Certificates (the "Privately Offered
Certificates") are described in the private placement memorandum, dated December
17, 1997 (excluding the exhibits attached thereto, the "Private Placement
Memorandum") prepared by the Depositor in connection with the sale of the
Privately Offered Certificates.
The Depositor will sell to Xxxxxxx, Xxxxx & Co. and Deutsche Mortgage
Xxxxxxxx Inc., as representatives for themselves and the several underwriters
(together, the "Underwriters"), the Publicly Offered Certificates pursuant to an
Underwriting Agreement, dated December 17, 1997, among the Depositor, GMACCM and
the Underwriters (the "Underwriting Agreement"). The Depositor will sell to
Xxxxxxx, Xxxxx & Co. and Deutsche Mortgage Xxxxxxxx Inc., as initial purchasers
(together, the "Initial Purchasers"), the Privately Offered Certificates
pursuant to a Certificate Purchase Agreement, dated December 17, 1997, among the
Depositor, GMACCM and the Initial Purchasers (the "Certificate Purchase
Agreement"). This opinion letter is rendered pursuant to Section 8(e) of the
GMACCM Mortgage Loan Purchase Agreement, Sections 6.5 and 6.11 of the
Underwriting Agreement and Sections 6(d) and 6(j) of the Certificate Purchase
Agreement. The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the GMACCM Mortgage Loan Purchase Agreement, the
GSMC Mortgage Loan Purchase Agreement and the GACC Mortgage Loan Purchase
Agreement are referred to collectively herein as the "Agreements." Terms not
otherwise defined herein shall have the meanings given them in the Agreements.
In arriving at the opinions expressed below, we have examined and relied on
the following documents:
(a) the certificates of incorporation and bylaws of the Depositor and
GMACCM;
(b) a good standing certificate from the Secretary of State of the
State of Delaware concerning the Depositor and a good standing certificate
from the Secretary of the State of the State of California concerning
GMACCM;
(c) executed copies of the Agreements;
(d) the Private Placement Memorandum;
(e) the Registration Statement;
E-25
(f) the Prospectus;
(g) the forms of the Certificates;
(h) the certificates of certain state authorities and filing officers,
copies of which are being delivered to each of you on the date hereof;
(i) the certificates of the Trustee delivered to you on the date
hereof; and
(j) the documents delivered by the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Sellers on the Closing
Date pursuant to the Agreements.
In addition, we have examined and relied, as to factual matters, on the
representations of the Depositor, the Master Servicer, the Special Servicer and
the Mortgage Loan Sellers in the Agreements and on originals or copies certified
or otherwise identified to our satisfaction of all such corporate records of the
Depositor, the Master Servicer, the Special Servicer and the Mortgage Loan
Sellers and such other instruments and other certificates of public officials,
officers and representatives of the Depositor, the Master Servicer, the Special
Servicer, the Mortgage Loan Sellers and the Trustee, as we have deemed
appropriate as a basis for the opinion expressed below.
Based upon such examination and having regard for legal considerations
which we deem relevant, we are of the following opinion:
1. The Registration Statement has become effective under the Act, and, to
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no
proceedings for that purpose have been instituted or threatened under
Section 8(d) of the Act.
2. The Registration Statement, as of the date it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, other
than any financial or statistical information or Computational
Materials or ABS Term Sheets contained therein as to which we express
no opinion, 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 in
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 as exhibits thereto.
E-26
4. The Certificates, when duly and validly executed and authenticated in
accordance with the Pooling and Servicing Agreement and paid for and
delivered in accordance with the Underwriting Agreement or Certificate
Purchase Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
5. The statements set forth 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, are
correct in all material respects.
6. The issuance, offer and sale of the Privately Offered Certificates, in
the manner and under the circumstances contemplated in the Private
Placement Memorandum and the Agreements, are transactions that do not
require registration of the Privately Offered Certificates under the
Act.
7. 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.
8. 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 Depositor and GMACCM of the transactions
contemplated by the terms of the Agreements to which the Depositor
and/or GMACCM is a party, 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 offer and sale of the Publicly
Offered Certificates, as to which we express no opinion.
9. Neither the issuance and sale of the Certificates pursuant to the
Agreements, nor the consummation by the Depositor and GMACCM of any
other of the transactions contemplated by, or the fulfillment by the
Depositor and GMACCM of the terms of, the Agreements to which the
Depositor and/or GMACCM, as applicable, is a party will result in a
breach of any term or provision of any federal or State of New York
statute or regulation or, to 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 Depositor and/or GMACCM.
10. Upon due authorization, execution and delivery by each of the parties
thereto, each of the Agreements to which the Depositor and/or GMACCM
is a party will constitute a valid, legal and binding agreement of the
Depositor and GMACCM,
E-27
as applicable, enforceable against the Depositor and GMACCM in
accordance with its terms.
11. Assuming compliance with all provisions of the Pooling and Servicing
Agreement, under existing law, (a) REMIC I, REMIC II and REMIC III (as
such terms are defined in the Pooling and Servicing Agreement) will be
treated as "real estate mortgage investment conduits" ("REMICs") as
defined by Section 860D of the Internal Revenue Code of 1986 (the
"Code"), (b) each of the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates will be treated as (or will be comprised of)
"regular interests" in REMIC III as the term "regular interest" is
defined in the Code, and (c) the Class R-I Certificates will be
treated as the sole class of "residual interests" in REMIC I, the
Class R-II Certificates will be treated as the sole class of "residual
interests" in REMIC II and the Class R-III Certificates will be
treated as the sole class of "residual interests" in REMIC III, as the
term "residual interest" is defined in the Code. However, continuation
of the status of REMIC I, XXXXX XX and XXXXX XXX as REMICs may entail
compliance with statutory changes in the future and with regulations
not yet issued.
12. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, under existing law, the Trust Fund will not be subject to
City or State of New York income or franchise tax and holders of
Certificates who are not residents of or otherwise than in connection
with the Certificates subject to tax in the City or State of New York
will not become subject to City or State of New York income or
franchise tax by reason of ownership of the Certificates.
In addition, we have participated in conferences with representatives of
the Depositor, the Master Servicer, the Special Servicer, the Underwriters, the
Initial Purchasers and the Mortgage Loan Sellers concerning the Registration
Statement, the Prospectus and the Private Placement Memorandum and have
considered the matters required to be stated therein and the statements
contained therein, although we have not independently verified the accuracy,
completeness or fairness of such statements (except as described in paragraph 5
above). Based upon and subject to the foregoing, nothing has come to our
attention to cause us to believe that the Registration Statement (excluding any
exhibits filed therewith), as of the date it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or the Private Placement Memorandum (in each case
excluding any exhibits thereto), as of their respective dates or as of the date
hereof, contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (it being understood that we have not been requested to
and do not make any comment in this paragraph with respect to the financial
statements, schedules and other financial and statistical information contained
in the Registration Statement, the
E-28
Prospectus or the Private Placement Memorandum or any information about The
Depository Trust Company or the book-entry system).
With your permission we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures other than the
signature of the Depositor; (b) the conformity to the originals of all documents
submitted to us as copies; (c) the truth, accuracy, and completeness of the
information, factual matters, representations and warranties contained in the
records, documents, instruments and certificates we have reviewed; and (d) that,
except as specifically covered in the opinions set forth above, the documents
referred to herein were duly authorized, executed and delivered on behalf of the
respective parties thereto and that such documents are legal, valid and binding
obligations of such parties.
Whenever a statement herein is qualified by the phrase "to our knowledge,"
it is intended to indicate that, during the course of our representation of the
Depositor, no information that would give us current actual knowledge of the
inaccuracy of such statement has come to the attention of those attorneys
currently in this firm who have rendered legal services in connection with the
representation described in the introductory paragraph of this opinion letter.
However, we have not undertaken any independent investigation to determine the
accuracy of any such statement, and any limited inquiry undertaken by us during
the preparation of this opinion letter should not be regarded as such an
investigation; no inference as to our knowledge of any matters bearing on the
accuracy of any such statement should be drawn from the fact of our
representation of the Depositor.
We express no opinion as to matters of law other than the law of the State
of New York and the United States of America. As you know, we are not licensed
to practice law in the State of Delaware, and our opinion as to Delaware law is
based solely on review of standard compilations of the official statutes of
Delaware.
Our opinion that any document is valid, binding or enforceable in
accordance with its terms is qualified as to:
(a) limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally;
(b) rights to indemnification and contribution which may be limited by
applicable law or equitable principles or otherwise unenforceable as against
public policy; and
(c) general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
E-29
This opinion letter is solely for your benefit and may not be relied upon
or used by, circulated, quoted or referred to, nor may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
Very truly yours,
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
E-30
EXHIBIT B
[GMAC Commercial Mortgage Corporation LETTERHEAD]
December [ ], 1997
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1997-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 1997-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 December 1, 1997 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and State Street Bank and Trust Company as trustee (the "Trustee").
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of December 17, 1997 the ("GMACCM
Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "GSMC Mortgage Loans") were purchased by the Company
from Xxxxxxx Xxxxx Mortgage Company ("GSMC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of December 17, 1997 (the "GSMC Mortgage Loan
Purchase Agreement"), between GSMC 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 December 17, 1997 (the "GACC Mortgage Loan Purchase
Agreement"), between GACC 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 Xxxxxxx, Xxxxx & Co. and Deutsche Xxxxxx Xxxxxxxx Inc. as
representatives (the "Representatives") for themselves and the other
underwriters (the "Underwriters") named in
E-31
the Underwriting Agreement, dated as of December 17, 1997 (the "Underwriting
Agreement"), among the Company, GMACCM and the Representatives, and sold the
Class F, Class G, Class H, Class J, Class K, Class R-I, Class R-II and R-III
Certificates (collectively, the "Privately Offered Certificates") to Xxxxxxx,
Xxxxx & Co. and Deutsche Xxxxxx Xxxxxxxx Inc. as initial purchasers (the
"Initial Purchasers") pursuant to the Certificate Purchase Agreement, dated as
of December 17, 1997 (the "Certificate Purchase Agreement"), among the Company,
GMACCM and the Initial Purchasers (the Certificate Purchase Agreement, the
Underwriting Agreement, the GMACCM Mortgage Loan Purchase Agreement, the GSMC
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement and
the Pooling and Servicing Agreement, collectively, the "Agreements").
Capitalized terms not defined herein have 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.
E-32
Based upon the foregoing, I am of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
the requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
2. GMACCM is duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of California, and has the requisite
power and authority, corporate or other, to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Agreements.
3. Each of the Agreements has been duly and validly authorized, executed
and delivered by the Company and GMACCM and, upon due authorization, execution
and delivery by the other parties thereto, will constitute the valid, legal and
binding agreements of GMACCM and the Company, enforceable against GMACCM and the
Company in accordance with their terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
4. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, State of Delaware, State of California or federal court or
governmental agency or body is required for the consummation by GMACCM or the
Company of the transactions contemplated by the terms of the Agreements, except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither the sale, issuance and delivery of the Certificates as provided
in the Agreements nor the consummation of any other of the transactions
contemplated by, or the fulfillment by the Company or GMACCM of any other of the
terms of, the Agreements, will result in a breach of any term or provision of
the charter or bylaws of GMACCM or the Company or any Commonwealth of
Pennsylvania, State of Delaware, State of California or federal statute or
regulation or conflict with, result in a breach, violation or acceleration of or
constitute a default under the terms of any indenture or other material
agreement or instrument to which GMACCM or the Company is a party or by which it
is bound or any order or regulation of any Commonwealth of Pennsylvania or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over GMACCM or the Company.
E-33
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, is entitled to rely hereon without my prior written consent. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
E-34
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxxx, Xxxxx & Co.
Deutsche Xxxxxx Xxxxxxxx Inc.
Residential Funding Securities Corporation
State Street Bank and Trust Company
Xxxxx'x Investor's Service, Inc.
Duff & Xxxxxx Credit Rating Co.
E-35
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
E-36
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
E-37
EXHIBIT E
December [ ], 1997
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 1997-C2
-----------------------------------------
Pursuant to Section 4.3 of the Underwriting Agreement, dated December
17, 1997 (the "Underwriting Agreement"), among GMAC Commercial Mortgage
Securities, Inc., GMAC Commercial Mortgage Corporation and of Xxxxxxx, Xxxxx &
Co. and Deutsche Xxxxxx Xxxxxxxx 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 10% 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
December 17, 1997; (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
E-38
Certificates in clause (4) by the original actual or notional, as the case may
be, principal balance of such class of Certificates:
Class X: _________________________
Class A-1: _________________________
Class A-2: _________________________
Class A-3: _________________________
Class B: _________________________
Class C: _________________________
Class D: _________________________
Class E: _________________________
Class F: _________________________
* less than 10% has been sold to the public
The prices set forth above do no include accrued interest with respect to
periods before closing.
XXXXXXX, XXXXX & CO.
By: ___________________________________
Name: _________________________________
Title: ________________________________
DEUTSCHE XXXXXX XXXXXXXX INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
For itself and the other Underwriters named
in Schedule I to the Underwriting Agreement
E-39
