EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,561,613,000(1)
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1
CLASS A-1, CLASS A-1D, CLASS A-1A, CLASS A-2, CLASS A-3, CLASS A-4, CLASS XP,
CLASS A-M, CLASS A-J, CLASS B, CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
JANUARY 25, 2006
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Holding Capital Markets Corp.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Mortgage Pass-Through Certificates,
Series 2006-C1, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance"), or with
respect to the Class XP Certificates, the initial aggregate notional principal
amount (the "Class Notional Amount"), and initial pass-through rate set forth on
Schedule I (such Certificates, the "Underwritten Certificates"). The Class A-1,
Class A-1D, Class A-1A, Class A-2, Class A-3, Class A-4, Class XP, Class A-M,
Class A-J, Class B, Class C, Class D and Class E Certificates, together with the
Class XC, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class FNB-1, Class FNB-2, Class FNB-3,
Class FNB-4, Class FNB-5, Class FNB-6, Class R-I, Class R-II, Class R-III and
Class X-X 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 January 1, 2006 among
the Company, as depositor,
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(1) Includes original principal amounts only. The Class XP Certificates will
have an approximate original notional amount of $1,658,713,000.
GMAC Commercial Mortgage Corporation ("GMACCM"), as master servicer (in such
capacity, the "Master Servicer") and serviced whole loan paying agent, GMACCM,
as special servicer (in such capacity, the "Special Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"). The Certificates are described in the
Base Prospectus and the Prospectus Supplement (each as hereinafter defined)
which the Company has furnished to the Underwriters.
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") will be
acquired by the Company from GMACCM pursuant to a mortgage loan purchase
agreement, dated as of January 25, 2006 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"MSMC Mortgage Loans") will be acquired by the Company from Xxxxxx Xxxxxxx
Mortgage Capital, Inc. ("MSMC") pursuant to a mortgage loan purchase agreement,
dated as of January 25, 2006 (the "MSMC Mortgage Loan Purchase Agreement"),
between the Company and MSMC. 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 January 25,
2006 (the "GACC Mortgage Loan Purchase Agreement"), between the Company and
GACC. Certain of the Mortgage Loans (the "CWCapital/GACC Mortgage Loans") will
be acquired by the Company from GACC pursuant to a separate mortgage loan
purchase agreement, dated as of January 25, 2006 (the "CWCapital/GACC Mortgage
Loan Purchase Agreement"), between the Company and GACC.
The GMACCM Mortgage Loans, the MSMC Mortgage Loans, the GACC Mortgage Loans
and the CWCapital/GACC Mortgage Loans together are referred to herein as the
"Mortgage Loans." GMACCM, MSMC and GACC are collectively referred to herein as
the "Mortgage Loan Sellers." The GMACCM Mortgage Loan Purchase Agreement, the
MSMC Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement
and the CWCapital/GACC Mortgage Loan Purchase Agreement are collectively
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 January,
2006.
SECTION 1. Representations, Warranties, and Covenants.
SECTION 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. 333-123974) on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Securities 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 Securities Act (the "Securities Act Regulations") a
prospectus supplement (the "Prospectus Supplement"), to
supplement the prospectus dated April 26, 2005 (the "Base
Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No.
333-123974) including exhibits thereto
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and any information incorporated therein by reference, as amended
at the date hereof, is hereinafter called the "Registration
Statement", and the Base 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".
(b) The Registration Statement has become effective,
and the Registration Statement as of the Effective Date (as
defined in this paragraph) and the Prospectus, as of the date of
the Prospectus Supplement, complied in all material respects with
the applicable requirements of the Securities Act and the
Securities 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 Issuer Free Writing Prospectus
(as defined herein) as of its date did not and at all times prior
to the date of the Prospectus Supplement did not, and the
Prospectus, 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 (i) any
Underwriter Prepared Issuer FWP except to the extent of any
information therein that constitutes Pool Information (as defined
herein) or is Issuer Information that is contained in, and was
accurately extracted from, the Issuer Free Writing Prospectus
(provided, however, that the Company makes no representation as
to any such Issuer Information that was extracted from the Issuer
Free Writing Prospectus if the Underwriter Prepared Issuer FWP
omitted other material Issuer Information from the Issuer Free
Writing Prospectus that would have corrected such error or
omission) or (ii) any information contained in or omitted from
the Registration Statement, the Issuer Free Writing Prospectus or
the Prospectus or any amendment thereof or supplement thereto
that is Excluded Information (as defined herein); provided,
further, that neither the Company nor GMACCM makes any
representations or warranties as to any information contained in
or omitted from the portions of the Issuer Free Writing
Prospectus or the Prospectus identified by underlining or other
highlighting as shown in Exhibit B (the "Underwriter
Information"); provided, further, that, solely with respect to
the sale of the Certificates under this Agreement, neither the
Company nor, except as contemplated by Section 1.2(a), GMACCM,
makes any representations or warranties as to any information
contained in or omitted from the Issuer Free Writing Prospectus
or the Prospectus Supplement, or Annex A or Annex B to the Issuer
Free Writing Prospectus or the Prospectus Supplement, or the
Diskette, insofar as such information relates to (w) the Mortgage
Loan Sellers, (x) the Mortgage Loans, the DDR/Macquarie Mervyn's
Portfolio Whole Loan, the Design Center of the Americas Whole
Loan, the Xxxxx Center Whole Loan or
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The Outlets at Hershey Whole Loan (as defined in the Prospectus
Supplement) or the Mortgaged Properties related thereto, (y) any
intercreditor agreement(s) relating to the Mortgage Loans, the
DDR/Macquarie Xxxxxx's Portfolio Whole Loan, the Design Center of
the Americas Whole Loan, the Xxxxx Center Whole Loan or The
Outlets at Hershey Whole Loan or (z) the GE 2005-C4 Pooling and
Servicing Agreement (as defined in the Prospectus Supplement)
(such information described in the foregoing clauses (w), (x),
(y) and (z), the "Mortgage Loan Seller Information"), other than
that the Mortgage Loan Seller Information (exclusive of the Loan
Detail (as defined herein) and the information on the Diskette
(as defined herein)) that represents a restatement or aggregation
of the information on the Loan Detail, accurately reflects the
information contained in the Loan Detail; provided, further, that
neither the Company nor GMACCM makes any representations or
warranties with respect to the Diskette or Term Sheet 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 representations or warranties, however,
as to the accuracy or completeness of any information in the Loan
Detail. The Company acknowledges that, except for the Term Sheet
FWP, 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,
the Issuer Free Writing Prospectus or the Prospectus, and the
Underwriters confirm that the Underwriter Information is correct.
The "Effective Date" shall mean the earlier of the date on which
the Prospectus Supplement is first used and the time of the first
Contract of Sale (as defined herein).
The initial effective date of the Registration Statement was
within three (3) years of the Closing Date. If the third
anniversary of the initial effective date of the Registration
Statement occurs within six months after the Closing Date, the
Company will use its best efforts to take such action as may be
necesssary or appropriate to permit the public offering and sale
of the Certificates as contemplated hereunder.
(i) "ABS Informational and Computational
Materials" shall have the meaning given such term in
Item 1101 of Regulation AB.
(ii) "Contract of Sale" has the same meaning as in
Rule 159 of the Securities Act Regulations and all
Commission guidance relating to Rule 159.
(iii) "Diskette" shall mean the diskette attached
to the Prospectus.
(iv) "Excluded Information" shall mean, with
respect to (x) each of the Registration Statement, the
Issuer Free Writing Prospectus and the Prospectus, the
information identified by underlining or other
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highlighting as shown on Exhibit A, and (y) each
Underwriter Prepared Issuer FWP and each Underwriter
FWP, all information contained therein which is
restated in, or is corrected and superseded by, the
Issuer Free Writing Prospectus.
(v) "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 of the
Securities Act Regulations.
(vi) "Issuer Free Writing Prospectus" shall mean
the Free Writing Prospectus dated January 20, 2006
entitled "Free Writing Prospectus to Accompany
Prospectus dated April 26, 2005", as filed with the
Commission on January 24, 2006, as supplemented and
superseded in part by the Free Writing Prospectus
entitled "CMBS: GMAC 2006-C1 Updated Annex A" as filed
on January 26, 2006 with the Commission.
(vii) "Issuer Information" shall mean any
information of the type specified in clauses (1) - (5)
of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform), other than Underwriter
Derived Information. Consistent with such definition,
"Issuer Information" shall not be deemed to include any
information in a Free Writing Prospectus solely by
reason of the Company's review of the materials
pursuant to Section 4.4(e) below and, consistent with
Securities Offering Reform Questions and Answers,
November 30, 2005 promulgated by the staff of the
Commission, "Issuer Information" shall not be deemed to
include any information in a Free Writing Prospectus
solely by reason that the Underwriters have agreed not
to use such Free Writing Prospectus without consent of
the Company.
(viii) "Loan Detail" means the information set
forth on the pages between A-17 and A-18, inclusive of
Annex A to the Prospectus Supplement.
(ix) "Pool Information" means the compilation of
information and data regarding the Mortgage Loans
covered by the final Agreed Upon Procedures Letter
dated January 25, 2006 and rendered by Xxxxxxxx &
Xxxxxx, L.L.P.
(x) "Term Sheet Diskette" shall mean the diskette,
if any, attached to the Term Sheet FWP.
(xi) "Term Sheet FWP" shall mean the Free Writing
Prospectus entitled "Structural and Collateral Term
Sheet" which appears as Annex C to the Issuer Free
Writing Prospectus.
(xii) "Term Sheet Master Tape" shall mean the tape
provided by GMACCM that was used to create the Term
Sheet Diskette.
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(xiii) "Underwriter Derived Information" shall
refer to information of the type described in clause
(5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) when prepared by the
Underwriters, including traditional computational and
analytical materials prepared by the Underwriters.
(xiv) "Underwriter FWP" shall mean all Free
Writing Prospectuses prepared by or on behalf of the
Underwriters other than any Underwriter Prepared Issuer
FWP.
(xv) "Underwriter Prepared Issuer FWP" shall mean
the Term Sheet FWP and any other Free Writing
Prospectus prepared by or on behalf of the Underwriters
that contains any Issuer Information, including any
Free Writing Prospectus or portion thereof prepared by
or on behalf of the Underwriters that contains only a
description of the final terms of the Certificates or
of the offering of the Certificates.
(xvi) "Written Communication" shall have the
meaning given such term in Rule 405 of the Securities
Act Regulations.
(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.
(f) The Company was not, as of any date on or after
which a bona fide offer (as used in Rule 164(h)(2) of the
Securities Act Regulations) of the Certificate is made, an
Ineligible Issuer, as such term is defined in Rule 405 of the
Securities Act Regulations. The Company shall comply with all
applicable laws and regulations in connection with the use of
Free Writing Prospectuses,
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including but not limited to Rules 164 and 433 of the Securities
Act Regulations and all Commission guidance relating to Free
Writing Prospectuses, including but not limited to Commission
Release No. 33-8591.
SECTION 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 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.
SECTION 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 and all Underwriter Prepared Issuer FWP, Underwriter
FWP and Underwriter Information is accurate in all material
respects (taking into account the assumptions explicitly set
forth in such Underwriter Prepared Issuer FWP and Underwriter
FWP, except to the extent of any errors therein that are caused
by errors or omissions in the Pool Information) and include all
assumptions material to the preparation thereof. The Term Sheet
FWP and the other Underwriter Prepared Issuer FWP, if any,
provided by such Underwriter to the Company constitute a complete
set of all Underwriter Prepared Issuer FWP delivered by such
Underwriter to any prospective investors that are required to be
filed with the Commission.
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(c) No Contract of Sale was entered into prior to 9:35
a.m. on January 25, 2006.
SECTION 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.
SECTION 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 with respect to the Class XP Certificates, the actual notional
principal amount) 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
January 1, 2006 to but not including the Closing Date.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the offices of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, New York, New York 10103 at 10:00 a.m., New York City time, on
January 31, 2006 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 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.
SECTION 4. Offering by Underwriters.
SECTION 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. Prior to the date of the first
Contract of Sale made based on the Issuer Free Writing Prospectus, the
Underwriters have not pledged, sold, disposed of or otherwise
transferred any Certificate or any interest in any Certificate. 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
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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.
SECTION 4.2. It is understood that the Underwriters will
solicit offers to purchase the Certificates as follows:
(a) Prior to the time the Underwriters have received
the Issuer Free Writing Prospectus, the Underwriters may, in
compliance with the provisions of this Agreement, solicit offers
to purchase Certificates; provided, that the Underwriters shall
not accept any such offer to purchase a Certificate or any
interest in any Certificate or otherwise enter into any Contract
of Sale for any Certificate or any interest in any Certificate
prior to its conveyance of the Issuer Free Writing Prospectus to
the investor.
(b) Any Written Communication relating to the
Certificates made by an Underwriter in compliance with the terms
of this Agreement prior to the time such Underwriter has entered
into a Contract of Sale for Certificates with the recipient shall
prominently set forth the following statements (or substantially
similar statements approved by the Company):
The information in this free writing prospectus,
if conveyed prior to the time of your contractual
commitment to purchase any of the Certificates,
supersedes any information contained in any prior
similar materials relating to the Certificates.
The information in this free writing prospectus is
preliminary, and is subject to completion or
change. This free writing prospectus is being
delivered to you solely to provide you with
information about the offering of the Certificates
referred to in this free writing prospectus and to
solicit an offer to purchase the Certificates,
when, as and if issued. Any such offer to purchase
made by you will not be accepted and will not
constitute a contractual commitment by you to
purchase any of the Certificates, until we have
accepted your offer to purchase Certificates.
The Certificates referred to in these materials
are being sold when, as and if issued. The issuer
is not obligated to issue such Certificates or any
similar security and the underwriter's obligation
to deliver such Certificates is subject to the
terms and conditions of the underwriting agreement
with the issuer and the availability of such
Certificates when, as and if issued by the issuer.
You are advised that the terms of the
Certificates, and the characteristics of the
mortgage loan pool backing them, may change (due,
among other things, to the possibility that
mortgage loans that comprise the pool may become
delinquent or defaulted or may be removed
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or replaced and that similar or different mortgage
loans may be added to the pool, and that one or
more classes of Certificates may be split,
combined or eliminated), at any time prior to
issuance or availability of a final prospectus.
You are advised that Certificates may not be
issued that have the characteristics described in
these materials. The underwriter's obligation to
sell such Certificates to you is conditioned on
the mortgage loans and Certificates having the
characteristics described in these materials. If
for any reason the issuer does not deliver such
Certificates, the underwriter will notify you, and
neither the issuer nor any underwriter will have
any obligation to you to deliver all or any
portion of the Certificates which you have
committed to purchase, and none of the issuer nor
any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
SECTION 4.3. It is understood that no Underwriter has
entered into or will enter into a Contract of Sale with any investor
until the Issuer Free Writing Prospectus has been conveyed to the
investor with respect to the Certificates which are the subject of
such Contract of Sale.
SECTION 4.4. It is understood that the Underwriters may
prepare and provide to prospective investors certain Free Writing
Prospectuses, subject to the following conditions:
(a) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, the
Underwriters shall not convey or deliver any Written
Communication to any person in connection with the initial
offering of the Certificates, unless such Written Communication
(i) is made in reliance on Rule 134 under the Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B
under the Act or (iii) constitutes a Free Writing Prospectus (as
defined in Section 1.1(b) above) consisting solely of (x)
information of a type included within the definition of ABS
Informational and Computational Materials or (y) information
accurately extracted from the Issuer Free Writing Prospectus and
included in any Underwriter Prepared Issuer FWP or any
Underwriter FWP.
(b) The Underwriters shall comply with all applicable
laws and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of
the Securities Act Regulations and all Commission guidance
relating to Free Writing Prospectuses, including but not limited
to Commission Release No. 33-8591.
(c) It is understood and agreed that all information
provided by the Underwriters to or through Bloomberg or Intex or
similar entities for use by prospective investors, or imbedded in
any CDI file provided to prospective investors, or in any email
or other electronic message provided to prospective investors, to
the extent constituting a Free Writing Prospectus, shall be
deemed
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for purposes of this Agreement to be an Underwriter FWP or
Underwriter Prepared Issuer FWP, as applicable. In connection
therewith, each Underwriter agrees that it shall not provide any
information constituting Issuer Information through the foregoing
media unless (i) such information is contained either in the
Issuer Free Writing Prospectus or an Underwriter Prepared Issuer
FWP in compliance with Section 4.4(e) or (ii) to the extent such
information consists of the terms of the Certificates, the final
version of the terms of the Certificates is contained either in
the Issuer Free Writing Prospectus or in an Underwriter Prepared
Issuer FWP in compliance with Section 4.4(e).
(d) All Free Writing Prospectuses provided to
prospective investors, whether or not filed with the Commission,
shall bear a legend including the following statement (or a
substantially similar statement approved by the Company):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT
(INCLUDING A PROSPECTUS) WITH THE SECURITIES AND
EXCHANGE COMMISSION (THE SEC) FOR THE OFFERING TO
WHICH THIS COMMUNICATION RELATES. BEFORE YOU
INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
DEPOSITOR HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING.
YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY
VISITING XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX.
ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF
YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX] OR VIA EMAIL AT ______________.
Each of the Company and the Underwriters shall have the right to
request additional specific legends or notations to appear on any
Free Writing Prospectus and shall have the right to require
changes regarding the use of terminology and the right to
determine the types of information appearing therein with the
approval of the other (which shall not be unreasonably withheld).
(e) The Underwriters shall deliver to the Company and
its counsel (in such format as reasonably required by the
Company), prior to the proposed date of first use thereof (unless
such timing requirement is waived by the Company), any
Underwriter Prepared Issuer FWP. To facilitate filing to the
extent required by Section 5.10 or 5.11, as applicable, all
Underwriter Derived Information shall be set forth in a document
separate from any Underwriter Prepared Issuer FWP including
Issuer Information. Notwithstanding the foregoing, the
Underwriters shall not be required to deliver an Underwriter
Prepared Issuer FWP to the extent that it does not contain
substantive changes from or additions to any Underwriter
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Prepared Issuer FWP previously approved by the Company. In the
event that the Underwriters use any Underwriter Prepared Issuer
FWP without complying with the foregoing requirements, that
Underwriter Prepared Issuer FWP shall be deemed to be an
Underwriter FWP for purposes of Section 7.1 and 7.2.
(f) The Underwriters shall provide the Company with a
letter from Deloitte & Touche LLP, certified public accountants,
prior to the Closing Date, satisfactory in form and substance to
the Company, GMACCM and their respective counsels and the
Underwriters, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by
the Company and the Underwriters, as a result of which they
determined that certain information of an accounting, financial
or statistical nature that is included in any Underwriter
Prepared Issuer FWP, other than any Pool Information therein, is
accurate except as to such matters that are not deemed by the
Company and the Underwriters to be material. The foregoing letter
shall be at the expense of the Underwriters.
(g) None of the information in any Free Writing
Prospectus may conflict with the information then contained in
the Registration Statement or any prospectus or prospectus
supplement that is a part thereof.
(h) The Company shall not be obligated to file any
Issuer Free Writing Prospectus that has been determined to
contain any material error or omission unless such Issuer Free
Writing Prospectus has been provided to a prospective investor,
in which case, the Underwriters shall cooperate with the Company
to prepare a corrective Issuer Free Writing Prospectus that the
Underwriters will provide to any such prospective investor and
the Company shall file to the extent required herein. In the
event that the Underwriters become aware that, as of the date on
which an investor entered into a Contract of Sale, any Free
Writing Prospectus prepared by or on behalf of the Underwriters
and delivered to such investor contained any untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such
Free Writing Prospectus, a "Defective Free Writing Prospectus"),
the Underwriters shall notify the Company thereof as soon as
practical but in any event within one business day after
discovery.
(i) If the Underwriters do not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriters shall be deemed to have represented, as of the
Closing Date, that they did not provide any prospective investors
with any information in written or electronic form in connection
with the offering of the Certificates that would constitute an
Underwriter Prepared Issuer FWP.
(j) In the event of any delay in the delivery by the
Underwriters to the Company of any Underwriter Prepared Issuer
FWP required to be delivered in accordance with subsection (e)
above, or in the delivery of the accountant's
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comfort letter in respect thereof pursuant to subsection (f)
above, 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 5.10 to file such Underwriter
Prepared Issuer FWP by the time specified therein.
(k) Each Underwriter represents that it has in place,
and covenants that it shall maintain, internal controls and
procedures which it reasonably believes to be sufficient to
ensure full compliance with all applicable legal requirements of
the Securities Act Regulations with respect to the generation and
use of Free Writing Prospectuses in connection with the offering
of the Certificates. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain
written and/or electronic records of the following:
(i) any Free Writing Prospectus used by the
Underwriter to solicit offers to purchase Certificates
to the extent not filed with the Commission;
(ii) regarding each Free Writing Prospectus
delivered by the Underwriter to an investor, the date
of such delivery and identity of such investor; and
(iii) regarding each Contract of Sale entered into
by such Underwriter, the date, identity of the investor
and the terms of such Contract of Sale, as set forth in
the related confirmation of trade.
(l) Each Underwriter covenants with the Company that
after the final Prospectus is available the Underwriter shall not
distribute any written information concerning the Certificates to
a prospective investor unless such information is preceded or
accompanied by the final Prospectus. It is understood and agreed
that the use of written information in accordance with the
preceding sentence is not a Free Writing Prospectus and is not
otherwise restricted or governed in any way by this Agreement.
SECTION 4.5. 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
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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.
SECTION 4.6. Each Underwriter agrees that (i) if the
Prospectus is not delivered with the confirmation in reliance on Rule
172, it will include in every confirmation sent out the notice
required by Rule 173 informing the investor that the sale was made
pursuant to the Registration Statement and that the investor may
request a copy of the Prospectus from the Underwriter; (ii) if a paper
copy of the Prospectus is requested by a person who receives a
confirmation, the Underwriter shall deliver a printed or paper copy of
such Prospectus; and (iii) if an electronic copy of the Prospectus is
delivered by the Underwriter for any purpose, such copy shall be the
same electronic file containing the Prospectus in the identical form
transmitted electronically to the Underwriter by or on behalf of the
Company specifically for use by the Underwriter pursuant to this
Section 4.6; for example, if the Prospectus is delivered to the
Underwriter by or on behalf of the Company in a single electronic file
in pdf format, then the Underwriter will deliver the electronic copy
of the Prospectus in the same single electronic file in pdf format.
Each Underwriter further agrees that (i) if it delivers to an investor
the Prospectus in pdf format, upon the Underwriter's receipt of a
request from the investor within the period for which delivery of the
Prospectus is required, the Underwriter will promptly deliver or cause
to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Underwriter
Prepared Issuer FWP, or portions thereof, which the Company is
required to file with the Commission in electronic format and will use
reasonable efforts to provide to the Company such Underwriter Prepared
Issuer FWP, or portions thereof, in either Microsoft Word(R) or
Microsoft Excel(R) format and not in a pdf, except to the extent that
the Company, in its sole discretion, waives such requirements.
SECTION 5. Agreements. The Company agrees with the several Underwriters
that:
SECTION 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.
SECTION 5.2. The Company will cause the Prospectus
Supplement to be transmitted to the Commission for filing pursuant to
Rule 424(b) under the Securities Act by means reasonably calculated to
result in filing with the Commission pursuant to said rule.
SECTION 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 Securities Act, any event occurs as a
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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 Securities
Act or the Securities 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.
SECTION 5.4. If the Company or the Underwriters determine or
become aware that any Written Communication (including without
limitation the Issuer Free Writing Prospectus) or oral statement (when
considered in conjunction with all information conveyed at the time of
Contract of Sale) contains an untrue statement of material fact or
omits to state a material fact necessary to make the statements, in
light of the circumstances under which they were made, not misleading
at the time that a Contract of Sale was entered into, either the
Company or the Underwriters may prepare corrective information with
notice to the other parties, and the Underwriters shall deliver such
information in a manner reasonably acceptable to both parties, to any
person with whom a Contract of Sale was entered into, and such
information shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under
the existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the
information given at the time of the original Contract of Sale;
and
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into
or not enter into a new Contract of Sale.
Any costs incurred to the investor in connection with any such
termination or reformation shall be subject to Sections 7.1 and 7.2,
as applicable.
SECTION 5.5. 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 Securities 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; provided, however, that if the
Prospectus is not delivered with the confirmation in reliance on Rule
172, the Underwriters will provide the notice specified in Section 4.6
in every confirmation and will deliver a paper copy of the prospectus
to those investors that request a paper copy thereof.
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SECTION 5.6. 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 Company and the
Trustee pursuant to Section 12.07 of the Pooling and Servicing
Agreement and the annual attestation of a firm of independent public
accountants furnished to the Company and the Trustee pursuant to
Section 12.09 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
SECTION 5.7. 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.
SECTION 5.8. 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.
SECTION 5.9. If, during the period after the Closing Date in
which a prospectus relating to the Underwritten Certificates is
required to be delivered under the Securities 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.
SECTION 5.10. The Company shall file the Issuer Free Writing
Prospectus, and any Underwriter Prepared Issuer FWP provided to it by
the Underwriters under Section 4.4, not later than the date of first
use thereof, except that:
(a) the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP or portion thereof otherwise required to be
filed that contains only (1) a description of the final terms of
the Certificates may be filed by the Company within two days of
the later of the date such final terms have been established for
all classes of Certificates and the date of first use, and (2) a
description of the terms of the Certificates that does not
reflect the final terms after they have been established for all
classes of all Certificates is not required to be filed; and
(b) if the Issuer Free Writing Prospectus or
Underwriter Prepared Issuer FWP includes only information of a
type included in the definition of ABS Informational and
Computational Materials, the Company shall file the same within
the later of two business days after the Underwriters first
provide this information to investors and the date upon which the
Company is required to file
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the Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared
Issuer FWP by the Company, the Underwriters must comply with their
obligations pursuant to Section 4.4 and that the Company shall not be
required to file any Free Writing Prospectus to the extent such Free
Writing Prospectus includes information in a Free Writing Prospectus
or Prospectus previously filed with the Commission or that does not
contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
SECTION 5.11. The Underwriters shall file any Underwriter
FWP that has been distributed by the Underwriters in a manner
reasonably designed to lead to its broad, unrestricted dissemination
within the later of two business days after the Underwriters first
provide this information to investors and the date upon which the
Company is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act or otherwise as
required under Rule 433 of the Act; provided, however, that the
Underwriters shall not be required to file any Underwriter FWP to the
extent such Underwriter FWP includes information in a Free Writing
Prospectus or Prospectus previously filed with the Commission or that
does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
SECTION 5.12. The Company acknowledges and agrees that each
Underwriter is acting solely in the capacity of an arm's length
contractual counterparty to the Company with respect to the offering
of securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company or any other person.
Additionally, none of the Underwriters is advising the Company or any
other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult with
its own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any
review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall
not be on behalf of the Company.
SECTION 6. Conditions to the Obligations of the Underwriters. The
Underwriters' obligation to purchase the Underwritten Certificates shall be
subject to the following conditions:
SECTION 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) as
applicable under the Securities Act.
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SECTION 6.2. Since January 1, 2006, there shall have been no
material adverse change (not in the ordinary course of business) in
the condition of the Company or GMACCM.
SECTION 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 Issuer Free Writing Prospectus, 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.
SECTION 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.
SECTION 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 as to such matters
reasonably requested by the Underwriters, the opinion of Xxxxxxxxx
Xxx, Esq., associate counsel for the Company and GMACCM dated the
Closing Date, as to such matters reasonably requested by the
Underwriters.
SECTION 6.6. The Underwriters shall have received from their
counsel an opinion dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters.
SECTION 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 Issuer Free Writing Prospectus and the Prospectus
Supplement, in each case 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
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Loan Sellers excluding any questions of legal interpretation and (b)
the letter prepared pursuant to Section 4.4(e) hereof.
SECTION 6.8. The respective classes of Underwritten
Certificates shall have been rated as set forth on Schedule I.
SECTION 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.
SECTION 6.10. The Underwriters shall have received from
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the Company,
and from Xxxxxxxxx Xxx, associate counsel, to the Company, reliance
letters with respect to any opinions delivered to the rating agencies
identified on Schedule I hereto.
SECTION 6.11. The Underwriters shall have received from
counsel to each Mortgage Loan Seller, the opinions substantially to
the effect set forth in Section 8(e) and (f) of each Mortgage Loan
Seller's respective Mortgage Loan Purchase Agreement.
SECTION 6.12. The Company will furnish the Underwriters with
conformed copies of the above opinions, certificates, letters and
documents as they reasonably request.
SECTION 7. Indemnification and Contribution.
SECTION 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 Securities 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 (i) 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
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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 or (ii) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Issuer
Free Writing Prospectus, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
or (iii) caused by any untrue statement of a material fact or alleged
untrue statement of a material fact contained in any Underwriter
Prepared Issuer FWP or any Underwriter FWP or any omission or alleged
omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading that was in either case caused by any error
or omission in the Pool Information or in Issuer Information that is
contained in the Issuer Free Writing Prospectus, except, in the case
of clauses (ii) and (iii), 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 the Loan Detail, 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, any or all of the Mortgage
Loans or any or all of the Mortgaged Properties related thereto
contained in any Underwriter Prepared Issuer FWP, the Issuer Free
Writing Prospectus or the Prospectus Supplement (exclusive of the Loan
Detail) (provided that with respect to information set forth in Annex
B specifically attributed to any appraisal for the related Mortgaged
Property, only if such information is misstated in Annex B), 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, the GMACCM Mortgage Loans,
the Seven Springs Village Whole Loan or any or all of the Mortgaged
Properties related thereto contained in an Underwriter Prepared Issuer
FWP, the Issuer Free Writing Prospectus or the Prospectus Supplement
(exclusive of the Loan Detail) (provided that with respect to
information set forth in Annex B specifically attributed to any
appraisal for the related Mortgaged Property, only if such information
is misstated in Annex B), 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
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untrue statement or omission or alleged omission made therein relating
to the Excluded Information.
SECTION 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
Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (i) caused by any
untrue statement or alleged untrue statement of material fact
contained in the Underwriter Information, or any omission or alleged
omission to state therein any 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, (ii) caused
by any untrue statement or alleged untrue statement of material fact
contained in any Underwriter FWP, or any omission or alleged omission
to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (iii) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Underwriter Prepared
Issuer FWP, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iv)
resulting from the Underwriter's failure to comply with Section 4.3 or
failure to file any Underwriter FWP required to be filed in accordance
with Section 5.11; provided, however, that the indemnification set
forth in clauses (ii) and (iii) of this Section 7.2 shall not apply to
the extent of any error or omission in any Underwriter FWP or
Underwriter Prepared Issuer FWP that was caused by any error or
omission in (x) any Pool Information, (y) the Term Sheet Master Tape
or (z) Issuer Information that is contained in, and was accurately
extracted from, the Issuer Free Writing Prospectus, unless such error
or omission was corrected in the Issuer Free Writing Prospectus (it
also being expressly understood and agreed that the indemnification
set forth in clauses (ii) and (iii) of this Section 7.2 shall apply if
the Underwriter FWP or Underwriter Prepared Issuer FWP omitted other
material Issuer Information from the Issuer Free Writing Prospectus
that would have corrected such error or omission); provided, further,
that none of the Company, GMACCM or the Underwriters 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. In addition, the Underwriters agree to
indemnify and hold harmless the Company, GMACCM, their respective
directors or officers and any person controlling the Company or GMACCM
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 the Underwriters in the certificates described
in Section 4.5 hereof.
SECTION 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
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(the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but
the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all
such indemnified parties. Such firm shall be designated in writing by
the Underwriters, in the case of parties indemnified pursuant to
Section 7.1, and by the Company or GMACCM, in the case of parties
indemnified pursuant to Section 7.2. The indemnifying party may, at
its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel
reasonably satisfactory to the indemnified party in connection
therewith; provided, 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.
SECTION 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 any of 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 any 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
-22-
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.
SECTION 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
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
SECTION 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.
SECTION 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.
SECTION 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
-23-
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 (or with respect to the Class XP Certificates,
the initial aggregate notional 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.
SECTION 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.
SECTION 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 each Representative at the
following address: Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxx; Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: XX Xxxxxx, telecopy number (212)
761-0748, with a copy to Xxxxxxxx Xxxxx, Esq., at 0000 Xxxxxx xx xxx Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000, telecopy number (000) 000-0000; GMAC Commercial
Holding Capital Markets Corp., c/x Xxxxxx Financial Services, 000 Xxxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxx X, Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn: Structured
Finance Group; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000-0000, 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 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager with a
copy to the General Counsel, GMAC Commercial Mortgage Corporation.
SECTION 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.
-24-
SECTION 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.
SECTION 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]
-25-
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:
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
DEUTSCHE BANK SECURITIES INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-------------------------------------
Name:
Title:
GMAC COMMERCIAL HOLDING CAPITAL MARKETS
CORP.
By:
-------------------------------------
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to,
collectively, the registration statement No. 333-123974 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 2006-C1, Class A-1, Class A-1D, Class
A-1A, Class A-2, Class A-3, Class A-4, Class XP, Class A-M, Class A-J, Class B,
Class C, Class D and Class E
Underwriters: Deutsche Bank Securities Inc. ("Deutsche"), Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx") and GMAC Commercial Holding Capital Markets Corp.
("GMACCH").
Underwriting Agreement, dated January 25, 2006
Cut-off Date: The due date of any Mortgage Loan in January 2006
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
CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS
UNDERWRITER A-1 A-1D A-1A A-2 A-3 A-4 XP A-M A-J B C D E
-------------------------------------------------------------------------------------------------------------------
Deutsche 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50%
Xxxxxx 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50%
GMACCH 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0%
-------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
===================================================================================================================
I-1
INITIAL
CLASS INITIAL CLASS PASS-THROUGH PURCHASE RATINGS
DESIGNATION PRINCIPAL BALANCE(1) RATE PRICE(2) FITCH/S&P
---------------------------------------------------------------------------
A-1 $ 37,000,000 4.9750%(0) 000.000000% AAA/AAA
A-1D $ 15,000,000 4.0840%(0) 00.000000% AAA/AAA
A-1A $ 296,113,000 5.2330%(0) 000.000000% AAA/AAA
A-2 $ 166,000,000 5.1470%(0) 000.000000% AAA/AAA
A-3 $ 98,000,000 5.2770%(0) 000.000000% AAA/AAA
A-4 $ 576,071,000 5.2380%(0) 000.000000% AAA/AAA
XP $1,658,713,000 0.1669%(0) 0.000000% AAA/AAA
A-M $ 169,740,000 5.2900%(0) 000.000000% AAA/AAA
A-J $ 114,575,000 5.3490%(0) 000.000000% AAA/AAA
B $ 36,070,000 5.4290%(0) 000.000000% AA/AA
C $ 19,096,000 5.3692%(0) 000.000000% AA-/AA-
D $ 12,731,000 5.3982%(0) 000.000000% A+/A+
E $ 21,217,000 5.4272%(0) 000.000000% A/A
----------
(1) Subject to a variance of plus or minus 5.0%.
(2) 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 Commercial
Mortgage Securities, Inc. accrued interest at the initial Pass-Through Rate
therefor from January 1, 2006 to, but not including, the Closing Date.
(3) The Pass Through Rate is the specified fixed rate.
(4) The Class XP Certificates will not have a Certificate Balance and will
accrue interest on the Notional Amount (as defined herein) thereof at a variable
rate based on the Weighted Average Net Mortgage Rate.
(5) Initial Pass Through Rate. The Pass Through Rate is the lesser of the
specified fixed rate and the Weighted Average Net Mortgage Rate.
(6) Initial Pass Through Rate. The Pass Through Rate is equal to the
Weighted Average Net Mortgage Rate minus a specified fixed rate (which in the
case of the Class C Certificates is 0.068%, in the case of the Class D
Certificates is 0.039% and in the case of the Class E Certificates is 0.010%).
Closing Time, Date and Location: 10:00 a.m. New York City time on January 31,
2006 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
I-2
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 (a) in the case of the $25,000 and in any whole dollar
denomination in excess thereof.
I-3
EXHIBIT A
EXCLUDED INFORMATION OF PROSPECTUS SUPPLEMENT
(All circled text and tables are excluded)
PROVIDED UPON REQUEST.
A-1
EXHIBIT B
UNDERWRITER INFORMATION
(All circled text and tables are excluded)
PROVIDED UPON REQUEST.
B-1
EXHIBIT C
January 25, 2006
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2006-C1
Pursuant to Section 4.3 of the Underwriting Agreement, dated January 25,
2006 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Deutsche Bank Securities Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated and GMAC Commercial Holding Capital Markets
Corp., each an underwriter set forth therein (collectively the "Underwriters")
relating to the Certificates referenced above, each of the undersigned does
hereby certify that:
The prepayment assumption used in pricing the Certificates was 0% CPR
except for the Class XP which were priced at 100% CPR assuming the clean up call
is exercised.
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 and the notional balance of the Class XP 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 January 25, 2006; (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 Underwriters 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: 100.249696%
Class A-1D: 97.999841%
Class A-1A: 100.496304%
Class A-2: 100.498978%
Class A-3: 100.495662%
Class A-4: 100.494316%
C-1
Class XP 1.044971%
Class A-M 100.497954%
Class A-J 100.496839%
Class B: 100.499182%
Class C: 100.499140%
Class D: 100.494865%
Class E: 100.490626%
C-2
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE BANK SECURITIES INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------------
Name:
Title:
GMAC COMMERCIAL HOLDING CAPITAL MARKETS
CORP.
By:
------------------------------------
Name:
Title:
