Exhibit 1.1
Execution Copy
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,031,057,000
Mortgage Pass-Through Certificates, Series 1999-C3
Class X, Class A-1-a, Class A-1-b, Class A-2, Class B,
Class C, Class D, Class E and Class F
UNDERWRITING AGREEMENT
August 26, 1999
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
and
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Mortgage Pass-Through Certificates,
Series 1999-C3, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance") or
initial aggregate notional principal amount (a "Class Notional Amount") and
initial pass-through rate set forth on Schedule I (such Certificates, the
"Underwritten Certificates"). The Class X, Class A-1- a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Certificates"), together with the Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Residual Certificates issued therewith, will evidence the
entire interest in the Trust Fund (as defined in the Pooling and Servicing
Agreement referred to below) consisting primarily of a pool (the "Pool") of
multifamily and commercial mortgage loans (the "Mortgage Loans") as described in
the Prospectus Supplement (as hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of September 1, 1999
among the Company, as depositor, GMAC Commercial Mortgage Corporation
("GMACCM"), as master servicer (in such capacity, the "Master Servicer") and
special servicer (in such capacity, the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Certificates
are described in the Basic Prospectus and the Prospectus Supplement (each as
hereinafter defined) which the Company has furnished to the Underwriters.
Certain of the Mortgage Loans (the "GACC Warehouse Mortgage Loans") will be
acquired by the Company from German American Capital Corporation ("GACC")
pursuant to a mortgage loan purchase agreement, dated as of August 26, 1999 (the
"GACC Warehouse Mortgage Loan Purchase Agreement"), between the Company and
GACC. Certain of the Mortgage Loans (the "Column Warehouse Mortgage Loans") will
be acquired by the Company from Column Financial, Inc. ("Column") pursuant to a
mortgage loan purchase agreement, dated as of August 26, 1999 (the "Column
Warehouse Mortgage Loan Purchase Agreement"), between the Company and Column.
Certain of the Mortgage Loans (the "GSMC Warehouse Mortgage Loans") will be
acquired by the Company from Xxxxxxx Xxxxx Mortgage Company ("GSMC") pursuant to
a mortgage loan purchase agreement, dated as of August 26, 1999 (the "GSMC
Warehouse Mortgage Loan Purchase Agreement"), between the Company and GSMC (the
GACC Warehouse Mortgage Loans, the Column Warehouse Mortgage Loans and the GSMC
Warehouse Mortgage Loans, the "Warehouse Mortgage Loans"). Certain of the
Mortgage Loans (the "GACC Mortgage Loans") will be acquired by the Company from
GACC pursuant to a mortgage loan purchase agreement, dated as of August 26, 1999
(the "GACC Mortgage Loan Purchase Agreement"), between the Company and GACC.
Certain of the Mortgage Loans (the "GSMC Mortgage Loans") will be acquired by
the Company from GSMC pursuant to a mortgage loan purchase agreement, dated as
of August 26, 1999 (the "GSMC Mortgage Loan Purchase Agreement"), between the
Company and GSMC. Certain of the Mortgage Loans (the "GMACCM Mortgage Loans")
will be acquired by the Company from GMACCM pursuant to a mortgage loan purchase
agreement, dated as of August 26, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM (the GMACCM Mortgage Loans, together
with the GACC Warehouse Mortgage Loans, the Column Warehouse Mortgage Loans, the
GSMC Warehouse Mortgage Loans, the GACC Mortgage Loans and the GSMC Mortgage
Loans, the "Mortgage Loans"). GMACCM, GACC and GSMC together constitute the
"Pool Mortgage Loan Sellers" and, together with Column, constitute the "Mortgage
Loan Sellers" and the GACC Warehouse Mortgage Loan Purchase Agreement, the
Column Warehouse Mortgage Loan Purchase Agreement, the GSMC Warehouse Mortgage
Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the GSMC
Mortgage Loan Purchase Agreement and the GMACCM Mortgage Loan Purchase Agreement
together constitute the "Purchase Agreements." The "Cut-off Date" with respect
to each Mortgage Loan shall be the due date for such Mortgage Loan in September,
1999.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the
Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-64963) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Act"),
of Mortgage Pass-Through
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Certificates (issuable in series), including the Certificates, which
registration statement has become effective, and a copy of which, as
amended to the date hereof, has heretofore been delivered to the
Underwriters. The Company proposes to file with the Commission pursuant to
Rule 424(b) under the rules and regulations of the Commission under the Act
(the "1933 Act Regulations") a supplement dated August 26, 1999 (the
"Prospectus Supplement"), to the prospectus dated November 5, 1998 (the
"Basic Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No. 333-64963) including
exhibits thereto and any information incorporated therein by reference, as
amended at the date hereof, is hereinafter called the "Registration
Statement;" the Basic Prospectus and the Prospectus Supplement and any
information incorporated therein by reference (including, without
limitation, and only for purposes of clarification, any information filed
with the Commission pursuant to a Current Report on Form 8-K), together
with any amendment thereof or supplement thereto authorized by the Company
on or prior to the Closing Date for use in connection with the offering of
the Certificates, are hereinafter called the "Prospectus" and any diskette
attached to the Prospectus is hereinafter called the "Diskette." Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 424, or prior to the effective date of the
Registration Statement pursuant to Rule 402(a), or 424(a) is hereinafter
called a "Preliminary Prospectus Supplement;" and any diskette attached to
the Preliminary Prospectus Supplement is hereinafter referred to as the
"Preliminary Diskette." The mortgage loan and related information contained
on the diskette attached to any ABS Term Sheets, Computational Materials or
Collateral Term Sheets is referred to herein as the "Term Sheet Diskette"
and the tape provided by GMACCM that was used to create the Term Sheet
Diskette is referred to herein as the "Term Sheet Master Tape." References
herein to ABS Term Sheets, Computational Materials or Collateral Term
Sheets shall include any Term Sheet Diskette provided therewith. As used
herein, "Pool Information" means the compilation of information and data
regarding the Mortgage Loans covered by the Agreed Upon Procedures Letter
dated August 26, 1999 and rendered by Xxxxxxxx & Xxxxxx, L.L.P. (a "hard
copy" of which Pool Information was initialed on behalf of each of GMACCM,
GACC and GSMC and the Company).
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus and any
Diskette, as of the date of the Prospectus Supplement, did not, and as of
the Closing Date will not, contain an untrue statement of a material fact
and did not and will not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that neither the
Company nor GMACCM makes any representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto
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relating to the information identified by underlining or other highlighting
as shown in Exhibit C (the "Excluded Information"); and provided, further,
that neither the Company nor GMACCM makes any representations or warranties
as to either (i) any information in any Computational Materials or ABS Term
Sheets (each as hereinafter defined) required to be provided by the
Underwriters to the Company pursuant to Section 4.2, or (ii) as to any
information contained in or omitted from the portions of the Prospectus
identified by underlining or other highlighting as shown in Exhibit D (the
"Underwriter Information"); and provided, further, that neither the Company
nor, except as contemplated by Section 1.2(a), GMACCM, makes any
representations or warranties as to any information regarding the Mortgage
Loans or the Mortgage Loan Sellers contained in or omitted from the
portions of the Prospectus Supplement under the headings "Summary-The
Mortgage Pool," "-Geographic Concentrations," "-Property Type," "-Call
Protection," "-Payment Terms," "Risk Factors" and/or "Description of the
Mortgage Pool," or contained in or omitted from Annex A to the Prospectus
Supplement or contained in or omitted from the Diskette (the "Mortgage Loan
Seller Information"), other than that the Mortgage Loan Seller Information
(exclusive of the information set forth on pages A-7 through A-9,
inclusive, of Annex A to the Prospectus Supplement (the "Loan Detail") and
the information on the Diskette) that represents a restatement or
aggregation of the information on the Loan Detail, accurately reflects the
information contained in the Loan Detail; and provided, further, that
neither the Company nor GMACCM makes any representations or warranties with
respect to the Term Sheet Diskette or the Diskette to the extent that the
information set forth in the Diskette is different than the information set
forth in the Loan Detail or the information set forth in the Term Sheet
Diskette is different than the information set forth in the Term Sheet
Master Tape. Neither the Company nor, except as contemplated by Section
1.2(a), GMACCM makes any representations or warranties, however, as to the
accuracy or completeness of any information in the Loan Detail. The Company
acknowledges that, except for any Computational Materials and ABS Term
Sheets, the Underwriter Information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus, and the Underwriters confirm that
the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power to own its properties and to conduct its
business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of the
Company, enforceable against the Company in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (ii) generally principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (iii)
public policy
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considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification for securities laws
liabilities.
(e) As of the Closing Date (as defined herein), the Certificates will
conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in the
Pooling and Servicing Agreement will be true and correct in all material
respects.
1.2 GMACCM represents and warrants to and agrees with you that:
(a) As of the Closing Date, the representations and warranties of
GMACCM in the Pooling and Servicing Agreement, in Section 2(b) of the
supplemental agreements between GMACCM and each of Column, GACC and GSMC,
and in Section 4(b) of the GMACCM Mortgage Loan Purchase Agreement will be
true and correct in all material respects.
(b) This Agreement has been duly authorized, executed and delivered by
GMACCM and, assuming the due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of GMACCM,
enforceable against GMACCM in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, (ii) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
1.3 Each Underwriter represents and warrants to and agrees with the Company
and GMACCM that:
(a) With respect to each class of Underwritten Certificates, if any,
to be issued in authorized denominations of $25,000 or less initial
principal balance or evidencing percentage interests in such class of less
than 20%, as the case may be, the fair market value of all such
Underwritten Certificates sold to any single Person on the date of initial
sale thereof by such Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder, including, without
limitation, Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by such Underwriter to the Company pursuant to
Section 4.2, if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets,
except to the extent of any errors therein that are caused by errors in the
Pool Information) and
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include all assumptions material to the preparation thereof. The
Computational Materials and ABS Term Sheets provided by such Underwriter to
the Company constitute a complete set of all Computational Materials and
ABS Term Sheets delivered by such Underwriter to prospective investors that
are required to be filed with the Commission.
1.4 Each Underwriter agrees with the Company and GMACCM that it will cause
the Person(s) acquiring the Residual Certificates on the Closing Date, to
execute and deliver, the Transfer Affidavit and Agreement referred to in Section
5.02 of the Pooling and Servicing Agreement, substantially in the form of
Exhibit C-1 to the Pooling and Servicing Agreement
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, the actual or notional, as the
case may be, principal amounts or percentage interests set forth in Schedule I
hereto in the respective classes of Underwritten Certificates at a price for
each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Underwritten Certificates an amount equal to interest
accrued thereon from September 1, 1999 to but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the office of Xxxxx, Brown & Xxxxx at 10:00 a.m.,
New York City time, on September 14, 1999 or such later date as the Underwriters
shall designate, which date and time may be postponed by agreement between the
Underwriters and the Company (such date and time of delivery and payment for the
Underwritten Certificates being herein called the "Closing Date"). Delivery of
the Underwritten Certificates (also referred to herein as the "DTC Registered
Certificates") shall be made to the respective accounts of the Underwriters
through DTC, in each case against payment by the Underwriters to or upon the
order of 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.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public as set forth in the Prospectus,
and the Underwriters agree that all such offers and sales by the Underwriters
shall be made in compliance with all applicable laws and regulations. It is
further understood that the Company, in reliance upon a no-filing letter from
the Attorney General of the State of New York granted pursuant to Policy
Statement 105, has not and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Underwritten Certificates. As required by Policy
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Statement 105, each Underwriter therefore covenants and agrees with the Company
that sales of the Underwritten Certificates made by such Underwriter in and from
the State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Underwritten
Certificates, subject to the following conditions to be satisfied by such
Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), as well as the PSA Letter referred to below. In connection with
the use of ABS Term Sheets, such Underwriter shall comply with all
applicable requirements of the No-Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by or
at the direction of such Underwriter.
(c) (i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the following
statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE
CERTIFICATES NOR ANY OF ITS AFFILIATES MAKES ANY
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY
AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS
SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION."
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(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), 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
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information based on alternative methodologies or assumptions if specified
therein. If any Computational Materials or ABS Term Sheets delivered by
such Underwriter that are required to be filed were based on assumptions
with respect to the Pool that differ from the final Pool Information in any
material respect or on Certificate structuring terms that were revised in
any material respect prior to the printing of the Prospectus, such
Underwriter shall prepare revised Computational Materials or ABS Term
Sheets, as the case may be, based on the final Pool Information and final
structuring assumptions, circulate such revised Computational Materials and
ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to such Underwriter they would purchase all or any portion
of the Certificates, and include such revised Computational Materials and
ABS Term Sheets (marked, "as revised") in the materials delivered to the
Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of the applicable
Underwriter, the Company will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated _________ "and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked "material
previously dated __________, as corrected." In the event that within the
period during which the Prospectus relating to the Certificates is required
to be delivered under the Act, any Computational Materials or ABS Term
Sheets delivered by an Underwriter are determined, in the reasonable
judgment of the Company or such Underwriter, to contain a material error or
omission, such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they
would purchase all or any portion of the Certificates, or actually
purchased all or any portion thereof, and shall deliver copies of such
corrected Computational Materials and ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
Form 8-K submission (subject to the Company's obtaining an accountant's
comfort letter in respect of such corrected Computational Materials and ABS
Term Sheets, which shall be at the expense of such Underwriter).
(g) If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Company pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and such Underwriter shall provide the Company
with a certification to that effect on the Closing Date.
(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
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accordance with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5.9, the
Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions, in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(i) Each Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the No-Action Letters with respect to the generation
and use of Computational Materials and ABS Term Sheets in connection with
the offering of the Certificates.
(j) Notwithstanding anything herein to the contrary, for purposes of
this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the sixth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of Exhibit E attached hereto, setting forth (i) in the
case of each class of Underwritten Certificates, (a) if less than 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates has been sold to the public as of such date,
the value calculated pursuant to clause (b)(iii) of Exhibit E hereto, or, (b) if
10% or more of such class of Underwritten Certificates has been sold to the
public as of such date but no single price is paid for at least 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates, then the weighted average price at which the
Underwritten Certificates of such class were sold expressed as a percentage of
the aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates sold, or (c) the first single price at which
at least 10% of the aggregate actual or notional, as the case may be, principal
balance of such class of Underwritten Certificates was sold to the public, (ii)
the prepayment assumption used in pricing each class of Underwritten
Certificates, and (iii) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Underwritten Certificates to the
extent such information can in the good faith judgment of such Underwriter be
determined by it.
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5. Agreements. The Company agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Underwritten Certificates, the Company will
furnish the Underwriters with a copy of each such proposed amendment or
supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering of
the Underwritten Certificates in which a prospectus relating to the Underwritten
Certificates is required to be delivered under the Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the 1933 Act Regulations, the Company promptly will
prepare and furnish, at its own expense, to the Underwriters, either amendments
or supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
5.4 The Company will furnish to the Underwriters, without charge, a copy of
the Registration Statement (including exhibits thereto) and, so long as delivery
of a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as the Underwriters may reasonably
request.
5.5 The Company agrees, so long as the Underwritten Certificates shall be
outstanding, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, to
deliver to the Underwriters the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Underwritten
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters shall be
responsible only
11
for paying all costs and expenses incurred by them, including the fees and
disbursements of their counsel, in connection with the purchase and sale of the
Underwritten Certificates.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Underwritten Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Underwritten Certificates is in effect, the Company will advise the Underwriters
of the issuance of such stop order.
5.9 The Company shall file the Computational Materials and ABS Term Sheets
(if any) provided to it by the Underwriters under Section 4.2(d) hereof with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriters or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, each Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from Deloitte & Touche, L.L.P.,
certified public accountants, satisfactory in form and substance to the Company,
GMACCM and their respective counsels, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Company, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate except as to such matters that are not
deemed by the Company to be material. The Company shall file any corrected
Computational Materials described in Section 4.2(f) as soon as practicable
following receipt thereof. The Company also will file with the Commission within
fifteen days of the issuance of the Certificates a Current Report on Form 8-K
(for purposes of filing the Pooling and Servicing Agreement).
6. Conditions to the Obligations of the Underwriters. The Underwriters'
obligation to purchase the Underwritten Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since January 1, 1999, there shall have been no material adverse change
(not in the ordinary course of business) in the condition of the Company or
GMACCM.
6.3 The Company shall have delivered to the Underwriters a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of the Company to the effect that the signer of such certificate has
examined this Agreement, the Prospectus, the Pooling
12
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.
(c) GMACCM shall have delivered to the Underwriters a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of GMACCM to the effect that the signer of such certificate has
examined the Pooling and Servicing Agreement and this Agreement and that,
to the best of his or her knowledge after reasonable investigation, the
representations and warranties of GMACCM contained in the Pooling and
Servicing Agreement and in this Agreement are true and correct in all
material respects.
6.4 The Underwriters shall have received the opinions of Xxxxx, Brown &
Xxxxx, special counsel for the Company and GMACCM, dated the Closing Date and
substantially to the effect set forth in Exhibits A-1 and A-2, the opinion of
Xxxxx Xxxxxxx-Xxxx, Esq., general counsel for the Company and GMACCM, dated the
Closing Date and substantially to the effect set forth in Exhibit B and the
opinion of Xxxxxxxx & Xxxxxx, special California counsel for the GMACCM, dated
the Closing Date that GMACCM is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California, and has
the requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it.
6.5 The Underwriters shall have received from their counsel an opinion
dated the Closing Date in form and substance reasonably satisfactory to the
Underwriters.
6.6 The Underwriters shall have received from Deloitte & Touche, L.L.P.,
certified public accountants, (a) a letter dated the date hereof and reasonably
satisfactory in form and substance to the Underwriters and their counsel, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by you, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Description of the Mortgage Asset
Pool," "Description of the Certificates" and "Yield and Maturity Considerations"
agrees with the records of the Company and the Pool Mortgage Loan Sellers
excluding any questions of legal interpretation and (b) the letter prepared
pursuant to Section 5.9 hereof.
6.7 The respective classes of Underwritten Certificates shall have been
rated as set forth on Schedule I.
6.8 The Underwriters shall have received, with respect to the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the
13
laws of the jurisdiction of its organization, the due authorization, execution
and delivery of the Pooling and Servicing Agreement by such party and, subject
to standard limitations regarding laws affecting creditors' rights and general
principles of equity, the enforceability of the Pooling and Servicing Agreement
against such party. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, parties to
this Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the party on behalf of which such opinion is
being rendered. Such opinion may be qualified as an opinion only on the laws of
each state in which the writer of the opinion is admitted to practice law and
the federal law of the United States.
6.9 The Underwriters shall have received from Xxxxx, Brown & Xxxxx, special
counsel to the Company, and from Xxxxx Xxxxxxx-Xxxx, Esq., general counsel to
the Company, reliance letters with respect to any opinions delivered to the
rating agencies identified on Schedule I hereto.
6.10 The Underwriters shall have received from counsel to each Mortgage
Loan Seller, the opinions substantially to the effect set forth in Section 8(e)
of each Mortgage Loan Seller's respective Purchase Agreement (or Section 8(v) of
each of the Purchase Agreements relating to the Warehouse Mortgage Loans) .
6.11 The Company will furnish the Underwriters with conformed copies of the
above opinions, certificates, letters and documents as they reasonably request.
7. Indemnification and Contribution.
7.1 The Company and GMACCM, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Underwritten Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
in the Diskette, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon any information with respect to which the Underwriters
have agreed to indemnify the Company pursuant to Section 7.2; provided that the
Company and GMACCM will be liable for any such loss, claim, damage or liability
that arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made
14
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 or the Warehouse Mortgage Loans
contained in the Loan Detail or, to the extent consistent with Annex A to the
Prospectus Supplement, the Diskette, or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding any or all of the Mortgage Loan Sellers or any or all of
the Mortgage Loans contained in the Prospectus Supplement under the headings
"Summary-The Mortgage Pool," "-Geographic Concentrations," "-Property Type,"
"-Call Protection," "-Payment Terms," "Risk Factors" and/or "Description of the
Mortgage Pool," or on Annex A to the Prospectus Supplement (exclusive of the
Loan Detail) and such information represents a restatement or aggregation of
information contained in the Loan Detail, or (iii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding GMACCM or the GMACCM Mortgage Loans or the Warehouse
Mortgage Loans contained in the Prospectus Supplement under the headings
"Summary-The Mortgage Pool," "Risk Factors" and/or "Description of the Mortgage
Pool" or on Annex A to the Prospectus Supplement (exclusive of the Loan Detail),
and such information does not represent a restatement or aggregation of
information contained in the Loan Detail; and provided that none of the Company,
GMACCM or any Underwriter will be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein relating to the Excluded Information, or any information included in
Computational Materials or ABS Term Sheets that have been superseded by revised
Computational Materials or ABS Terms Sheets (any such information, the "Excluded
Pool Information") provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company no later
than one (1) Business Day after delivery to investors; provided, however, that
each of the Company and GMACCM will be liable to the extent any such loss,
claim, damage or liability is caused by errors in the portion of the Pool
Information relating to the GMACCM Mortgage Loans or the Warehouse Mortgage
Loans.
7.2 Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Company, GMACCM, their respective directors or officers and
any person who controls the Company or GMACCM within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in clause 7.1 above from the Company and GMACCM to the
Underwriters, but only with respect to (i) the Underwriter Information relating
to such Underwriter or supplied by such Underwriter to the Company for inclusion
in the Prospectus Supplement and (ii) the Computational Materials and ABS Term
Sheets delivered to investors in the Certificates by such Underwriter, except to
the extent of any errors in the Computational Materials or ABS Term Sheets or
Term Sheet Diskettes that are caused by errors in the Pool Information or
information contained in the Term Sheet Master Tape; provided, however, that the
indemnification set forth in this Section 7.2 shall not apply to the extent of
any errors in the Computational Materials or ABS Term Sheets that are caused by
Excluded Pool Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company (or its
counsel) no later than one (1) Business Day after delivery to investors. In
addition,
15
the Underwriter agrees to indemnify and hold harmless the Company, GMACCM, their
respective directors or officers and any person who controls the Company or
GMACCM within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages, liabilities and
expenses (including, without limitation, reasonable attorneys' fees) caused by,
resulting from, relating to, or based upon any legend regarding original issue
discount on any Underwritten Certificate resulting from incorrect information
provided by such Underwriter in the certificates described in Section 4.3
hereof.
7.3 In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 7.1 or 7.2, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Underwriters, in the case of parties
indemnified pursuant to Section 7.1, and by the Company or GMACCM, in the case
of parties indemnified pursuant to Section 7.2. The indemnifying party may, at
its option, at any time upon written notice to the indemnified party, assume the
defense of any proceeding and may designate counsel reasonably satisfactory to
the indemnified party in connection therewith, provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under Section 7.1 or 7.2 hereof or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
16
result of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
and GMACCM on the one hand and the Underwriters on the other from the offering
of the Underwritten Certificates but also the relative fault of the Company and
GMACCM on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and GMACCM on the one hand and of any of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or GMACCM or by an Underwriter, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in Section 7.4 above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses pursuant to Section 7.4; which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and GMACCM in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Company or GMACCM and their respective directors or officers or any person
controlling the Company or GMACCM and (iii) acceptance of and payment for any of
the Underwritten Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Underwritten Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or GMACCM to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or GMACCM shall
be unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company or GMACCM will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the
17
Underwriters in connection with the proposed purchase and sale of the
Underwritten Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Underwritten Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated to take up and pay for the Underwritten
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten Certificates set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to the nondefaulting
Underwriters, the Company or GMACCM. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date for the
Underwritten Certificates shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, GMACCM, the Underwriters or the officers of any of the Company, GMACCM
and the Underwriters set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or made by or
on behalf of the Company or GMACCM or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for
the Underwritten Certificates.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxx, and Deutsche Bank Securities Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx; 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
18
right or obligation hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURES FOLLOW]
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company, GMACCM
and the Underwriters.
Very truly yours,
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX, XXXXX & CO.
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Attorney In Fact
S-1
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-64963 filed by GMAC Commercial Mortgage
Securities, Inc. on Form S-3 and declared effective by the Commission.
Title and Description of the Registered Certificates:
Mortgage Pass-Through Certificates, Series 1999-C3, Class X, Class A-1-a, Class
A-1-b, Class A-2, Class B, Class C, Class D, Class E and Class F
Underwriters: Deutsche Bank Securities Inc. ("DBS") and Xxxxxxx, Xxxxx & Co.
("Goldman")
Underwriting Agreement, dated August 26, 1999
Cutoff Date: The due date of any Mortgage Loan in September 1999
Allocations: Subject to the terms and conditions of the Underwriting Agreement,
each Underwriter has agreed to purchase the percentage of each class of
Certificates as set forth below:
Allocation Table
------------------------------------------------------------------------------------------------------------------------------------
Underwriter Class X Class A-1-a Class A-1-b Class A-2 Class B Class C Class D Class E Class F
====================================================================================================================================
Xxxxxxx 50% 50% 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------------------------
DBS 50% 50% 50% 50% 50% 50% 50% 50% 50%
------------------------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100% 100% 100%
------------------------------------------------------------------------------------------------------------------------------------
Initial Class Principal Balance
Class (or in the case of Class X, Initial Ratings
Designation Class Notational Amount)(1)(2) Pass-Through Rate Purchase Price(2) Fitch/Xxxxx'x
----------- ------------------------------ ----------------- ----------------- -------------
X $1,152,022,048(2) 0.5328 3.728175 AAA/Aaa
A-1-a $ 50,000,000 6.9740 100.000192 AAA/Aaa
A-1-b $ 190,976,000 7.2730 100.000625 AAA/Aaa
A-2 $ 600,000,000 7.1790 100.502593 AAA/Aaa
B $ 51,840,000 7.5400 99.996674 AA/Aa2
C $ 57,601,000 7.7860 99.805540 A/A2
D $ 20,160,000 7.7861 99.914168 A-/A3
E $ 37,440,000 7.7861 97.617739 BBB/Baa2
F $ 23,040,000 7.7861 93.230599 BBB-/Baa3
----------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class Notional
Amount, as applicable, of the relevant class of Certificates to be
purchased hereunder. In addition, as to each such class of Certificates,
the Underwriters will pay GMAC Commercial Mortgage Securities, Inc. accrued
interest at the initial Pass-Through Rate therefor from September 1, 1999
to but not including the Closing Date.
Closing Time, Date and Location: 10:00 a.m. New York City time on September 14,
1999 at the offices of Xxxxx, Brown & Xxxxx. Issuance and delivery of Registered
Certificates: Each class of Registered Certificates will be issued as one or
more Certificates registered in the name of Cede & Co., as nominee of The
Depository Trust Company. Beneficial owners will hold interests in such
Certificates through the book-entry facilities of The Depository Trust Company
in minimum denominations of initial principal balance or notional amount, as the
case may be, of $25,000 in the case of the Class A-1-a, Class A-1-b and Class
A-2 Certificates, Class B, Class C, Class D, Class E and Class F Certificates
and $1,000,000 in the case of the Class X Certificates, and integral multiples
of $1 in excess thereof.
I-1
EXHIBIT A-1
[Letterhead of Xxxxx, Xxxxx & Xxxxx]
September 14, 1999
To: Persons listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999-C3
Ladies and Gentlemen:
We have acted as special counsel to GMAC Commercial Mortgage Securities,
Inc. (the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1999-C3 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of September 1, 1999 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, and Norwest Bank Minnesota, National Association as trustee
(the "Trustee").
Certain of the Mortgage Loans were purchased by the Company from GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and the Seller. Certain of the Mortgage Loans
were purchased by the Company from Column Financial, Inc. ("Column") pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated August 26, 1999 (the "Column Warehouse Mortgage Loan Purchase
Agreement") between the Company and Column. Certain of the Mortgage Loans will
be purchased by the Company from German American Capital Corporation ("GACC"),
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated August 26, 1999 (the "GACC Warehouse Mortgage Loan Purchase
Agreement"), between the Company and GACC. Certain of the Mortgage Loans will be
purchased by the Company from Xxxxxxx Xxxxx Mortgage Company ("GSMC"), pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GSMC Warehouse Mortgage Loan
Purchase Agreement"), between the Company and GSMC. Certain of the Mortgage
Loans (the "GACC Mortgage Loans") were purchased by the Company from GACC
("GACC") pursuant to a mortgage loan purchase agreement, dated as of August 26,
1999 (the "GACC Mortgage Loan Purchase Agreement"), between the Company and
GACC. Certain of the Mortgage Loans (the "GSMC Mortgage Loans") were purchased
by the Company from GSMC ("GSMC") pursuant to a mortgage loan purchase
agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GSMC.
The Company has sold the Class X, Class A-1-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates to Deutsche Bank
Securities Inc. and Goldman,
A-1-1
Sachs & Co. as the underwriters (the "Underwriters") named in the Underwriting
Agreement, dated August 26, 1999 (the "Underwriting Agreement"), among the
Company, the Seller, and the Underwriters. The Company sold the Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class R-I, Class R-II and Class
R-III Certificates to Deutsche Bank Securities, Inc., Xxxxxxx, Xxxxx & Co. and
GP Opportunity Fund LP as initial purchasers (the "Initial Purchasers") pursuant
to two Certificate Purchase Agreements, each dated August 26, 1999 (the
"Certificate Purchase Agreements"), between the Company, GMACCM and the Initial
Purchasers. The Certificate Purchase Agreements, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Column Warehouse Mortgage Loan
Purchase Agreement, the GACC Warehouse Mortgage Loan Purchase Agreement, the
GSMC Warehouse Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement, the GSMC Mortgage Loan Purchase Agreement, and the Pooling and
Servicing Agreement are referred to herein collectively as the "Agreements."
Capitalized terms not defined herein have the meanings set forth in the
Agreements.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-64963) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of
Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to the
Underwriters. The Company has filed with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a supplement dated August 26, 1999 (the "Prospectus Supplement"),
to the prospectus dated November 5, 1998 (the "Basic Prospectus"), relating to
the Certificates and the method of distribution thereof. Such registration
statement including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; the Basic Prospectus and the Prospectus Supplement and
any information incorporated therein by reference (including, without
limitation, and only for purposes of clarification, any information filed with
the Commission pursuant to a Current Report on Form 8-K), together with any
amendment thereof or supplement thereto authorized by the Company on or prior to
the Closing Date for use in connection with the offering of the Certificates,
are hereinafter called the "Prospectus."
In connection with rendering this opinion letter, we have examined the
Agreements and such other documents as we have deemed necessary. As to matters
of fact, we have examined and relied upon the accuracy of the representations of
parties to the Agreements contained therein and, where we have deemed
appropriate, separate additional representations or certifications of parties to
the Agreements, their respective officers and representatives or public
officials. In rendering this opinion letter, we have also assumed (i) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as copies, (ii) except as expressly
addressed below, the due authorization, execution and delivery, and the
necessary power with respect thereto, and the enforceability of such documents,
(iii) the conformity to the requirements of the Agreements, of the Mortgage
Notes, the Mortgages and other documents delivered or caused to be delivered to
the Trustee by or on behalf of the Company, (iv) the performance by all parties
to the Agreements in accordance with their covenants and agreements made
therein, and (v) that there is not any other agreement that
A-1-2
materially supplements or otherwise modifies the agreements expressed in the
Agreements.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, the corporate law of the
State of Delaware and the federal law of the United States, nor do we express
any opinion concerning the application of the "doing business" laws or the
securities laws of any jurisdiction other than the federal securities laws of
the United States and, in each case, as in existence on the date hereof. In
rendering the opinions set forth below, as to matters governed by the laws of
the Commonwealth of Pennsylvania or other laws that may be applicable to the
Company and GMACCM, we have relied without independent investigation on the
opinion letter of Xxxxx Xxxxxxx-Xxxx, Esq., general counsel to the Company and
GMACCM, dated the date hereof, a copy of which is annexed hereto. In addition,
in rendering the opinions set forth below, as to matters governed by the laws of
the State of California that may be applicable to GMACCM, we have relied on the
opinion letter of Xxxxxxxx & Xxxxxx, special California counsel to GMACCM, dated
the date hereof, a copy of which is annexed hereto. To the extent that we have
relied on the foregoing opinion letters, the opinions set forth below are
subject to the same assumptions, qualifications, exceptions and other
limitations set forth therein. We do not express any opinion on any issue not
expressly addressed below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the Securities Act
of 1933, as amended (the "Act"), and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
or threatened under Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date, and the Prospectus,
as of the date of the Prospectus Supplement, other than financial or statistical
information or Computational Materials or ABS Term Sheets contained or
incorporated by reference therein, complied as to form in all material respects
with the requirements of the Act and the applicable rules and regulations
thereunder.
3. To our knowledge, there are no material contracts, indentures, or other
documents (not including Computational Materials and ABS Term Sheets) of a
character required to be described or referred to under either the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement, and paid for
in and delivered in accordance with the Underwriting Agreement and Certificate
Purchase Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
5. The statements contained in the Prospectus and the Private Placement
Memorandum under the headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences", to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, while not purporting to discuss all
possible consequences of investment in the
A-1-3
Certificates, are correct in all material respects with respect to those
consequences or matters that are discussed therein.
6. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by
the Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
7. No consent, approval, authorization or order of any federal or State of
New York court or governmental agency or body is required for the consummation
by the Company or GMACCM of the transactions contemplated by the terms of the
Agreements, except (a) such as have been obtained under the Act and (b) such as
may be required under the blue sky laws of any jurisdiction in connection with
the purchase and the offer and sale of the Publicly Offered Certificates by the
Underwriters, as to which we express no opinion.
8. Neither the issuance and the sale of the Certificates pursuant to the
Agreements, nor the consummation of any other of the transactions contemplated
by, or the fulfillment by the Company or GMACCM of the terms of the Agreements,
will result in a breach of any term or provision of any federal or State of New
York statute or regulation or, to the best of our knowledge, conflict with,
result in a breach, violation or acceleration of or constitute a default under
any order of any federal or State of New York court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company
or GMACCM.
9. Each of the Agreements has been duly and validly authorized, executed
and delivered by the Company and GMACCM and, upon due authorization, execution
and delivery by all other parties thereto, each of the Agreements will
constitute a valid, legal and binding agreement of the Company and GMACCM,
enforceable against the Company and GMACCM in accordance with its terms, except
as enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
rights of creditors, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of any of the
Agreements which purport to provide indemnification with respect to securities
law violations.
10. As described in the Prospectus and the Private Placement Memorandum,
and assuming (i) the making of appropriate elections and (ii) compliance with
all the provisions of the Agreements, for federal income tax purposes, each of
REMIC I, REMIC II and REMIC III will qualify as a real estate mortgage
investment conduit (a "REMIC") within the meaning of Sections 860A through 860G
(the "REMIC Provisions") of the Internal Revenue Code of 1986 (the "Code") in
effect on the date hereof, and (i) the Class R-I Certificates will be the sole
class of "residual interests" in REMIC I, (ii) the Class R-II Certificates will
be the sole class of "residual interests" in REMIC II, (iii) the REMIC III
Regular Certificates will be "regular interests" in REMIC III, and (iv) the
Class R-III Certificates will be the sole class of "residual interests" in REMIC
III.
11. For purposes of City and State of New York income and corporation
franchise tax
A-1-4
as in effect on the date hereof, each of REMIC I, XXXXX XX and REMIC III will be
classified as a REMIC and not a corporation, partnership or trust, in conformity
with the federal income tax treatment of each such REMIC. Accordingly, each of
REMIC I, XXXXX XX and REMIC III will be exempt from all City and State of New
York taxation imposed on its income, franchise or capital stock, and its assets
will not be included in the calculation of any franchise tax liability.
In rendering the opinions expressed above we express no opinion regarding
any severability provision in the Agreements or regarding the legal, valid and
binding effect or the enforceability of any indemnification provision in the
Agreements to the extent that any such provisions may be deemed to cover matters
under the federal securities laws. The opinions expressed in paragraph 9 above
are subject to the further qualification that certain of the remedial provisions
in the Agreements may be limited or rendered ineffective or unenforceable in
whole or in part under the laws of the State of New York (but the inclusion of
such provisions does not make the remedies provided by the Agreements inadequate
for the practical realization of the rights and benefits purported to be
provided thereby, except for the economic consequences of procedural or other
delay).
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented you
in connection with the transactions contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge concerning such facts should be drawn from the fact that such
representation has been undertaken by us.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document.
Very truly yours,
XXXXX, BROWN & XXXXX
A-1-5
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Norwest Bank Minnesota, National Association
Fitch IBCA, Inc.
Xxxxx'x Investors Service, Inc.
A-1-6
EXHIBIT A-2
[Letterhead of Xxxxx, Xxxxx & Xxxxx]
September 14, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999-C3
Ladies and Gentlemen:
We have acted as special counsel to GMAC Commercial Mortgage Securities,
Inc. (the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1999-C3 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of September 1, 1999 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, and Norwest Bank Minnesota, National Association as trustee
(the "Trustee").
Certain of the Mortgage Loans were purchased by the Company from GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and the Seller. Certain of the Mortgage Loans
were purchased by the Company from Column Financial, Inc. ("Column") pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated August 26, 1999 (the "Column Warehouse Mortgage Loan Purchase
Agreement") between the Company and Column. Certain of the Mortgage Loans will
be purchased by the Company from German American Capital Corporation ("GACC"),
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated August 26, 1999 (the "GACC Warehouse Mortgage Loan Purchase
Agreement"), between the Company and GACC. Certain of the Mortgage Loans will be
purchased by the Company from Xxxxxxx Xxxxx Mortgage Company ("GSMC"), pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GSMC Warehouse Mortgage Loan
Purchase Agreement"), between the Company and GSMC. Certain of the Mortgage
Loans (the "GACC Mortgage Loans") were purchased by the Company from GACC
("GACC") pursuant to a mortgage loan purchase agreement, dated as of August 26,
1999 (the "GACC Mortgage Loan Purchase Agreement"), between the Company and
GACC. Certain of the Mortgage Loans (the "GSMC Mortgage Loans") were purchased
by the Company from GSMC ("GSMC") pursuant to a mortgage loan purchase
agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GSMC.
The Company has sold the Class X, Class A-1-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates to Deutsche Bank
Securities Inc. and Xxxxxxx, Xxxxx & Co. as the underwriters (the
"Underwriters") named in the Underwriting Agreement,
A-2-1
dated August 26, 1999 (the "Underwriting Agreement"), among the Company, the
Seller, and the Underwriters. The Company sold the Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class R-I, Class R-II and Class R-III
Certificates to Deutsche Bank Securities, Inc., Xxxxxxx, Xxxxx & Co. and G2
Opportunity Fund LP as initial purchasers (the "Initial Purchasers") pursuant to
two Certificate Purchase Agreements, each dated August 26, 1999 (the
"Certificate Purchase Agreements"), between the Company, GMACCM and the Initial
Purchasers. The Certificate Purchase Agreements, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Column Warehouse Mortgage Loan
Purchase Agreement, the GACC Warehouse Mortgage Loan Purchase Agreement, the
GSMC Warehouse Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement, the GSMC Mortgage Loan Purchase Agreement, and the Pooling and
Servicing Agreement are referred to herein collectively as the "Agreements."
Capitalized terms not defined herein have the meanings set forth in the
Agreements.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-64963) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of
Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to the
Underwriters. The Company has filed with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a supplement dated August 26, 1999 (the "Prospectus Supplement"),
to the prospectus dated November 5, 1998 (the "Basic Prospectus"), relating to
the Certificates and the method of distribution thereof. Such registration
statement (no. 333-64963) including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof, is hereinafter
called the "Registration Statement"; the Basic Prospectus and the Prospectus
Supplement and any information incorporated therein by reference (including,
without limitation, and only for purposes of clarification, any information
filed with the Commission pursuant to a Current Report on Form 8-K), together
with any amendment thereof or supplement thereto authorized by the Company on or
prior to the Closing Date for use in connection with the offering of the
Certificates, are hereinafter called the "Prospectus."
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement, the
Prospectus and the Private Placement Memorandum, we are not advising herein with
respect to and do not assume any responsibility herein for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Private Placement Memorandum and make no
representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. In particular and without
limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement,
the Prospectus or the Private Placement Memorandum, or as to any Computational
Materials or ABS Term Sheets, and we have not examined any accounting, financial
or statistical records from which the information and statements included
therein were derived. In addition, with limited exception, we have not reviewed
any of the Mortgage Notes, Mortgages or other documents in the Mortgage Files or
made any inquiry of any originator of any Mortgage Loan other than the Mortgage
Loan Sellers.
A-2-2
We do not act as general counsel to the Company or GMACCM. In our
representation of the Company and GMACCM in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
Deutsche Bank Securities Inc. and Xxxxxxx, Xxxxx & Co. and their respective
counsel in addition to us. During those conferences and telephone conversations,
the contents of the Registration Statement, the Prospectus and the Private
Placement Memorandum and related matters were discussed. With respect to the
accuracy, completeness and fairness of the information relating to GMACCM and
the Trustee and the Fiscal Agent contained in the Prospectus and the Private
Placement Memorandum under the captions "Description of the Mortgage Pool--The
Sellers," "Servicing of the Mortgage Loans--The Servicer" and "Description of
the Certificates--The Trustee", we have relied exclusively on those conferences
and telephone conversations and that no information inconsistent therewith has
come to our attention. In addition, we have examined the Agreements and reviewed
various opinions rendered and certificates delivered in connection with the
issuance of the Certificates. We have not otherwise undertaken any procedures
that were intended or likely to elicit information concerning the accuracy,
completeness or fairness of the statements made in the Registration Statement,
the Prospectus or the Private Placement Memorandum. We have assumed that there
is not and will not be any other agreement that materially supplements or
otherwise modifies the agreements expressed in the Agreements.
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that (i) the Registration Statement as of
the date it became effective, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein not misleading and (ii) the Prospectus or the
Private Placement Memorandum as of the date thereof or hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented the
Company and GMACCM in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence or such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
A-2-3
This letter is provided for the sole benefit of each addressee hereof, and
no other person or entity is entitled to rely hereon. Copies of this letter may
not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
XXXXX, BROWN & XXXXX
A-2-4
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
A-2-5
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
September 14, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C3
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Securities, Inc. (the
"Company") and GMAC Commercial Mortgage Corporation ("GMACCM"). In that
capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 1999-C3 (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 September 1, 1999 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer and Norwest Bank, National Association, as trustee (the
"Trustee").
Certain of the Mortgage Loans were purchased by the Company from GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and the Seller. Certain of the Mortgage Loans
were purchased by the Company from Column Financial, Inc. ("Column") pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated August 26, 1999 (the "Column Mortgage Loan Purchase Agreement")
between the Company and Column. Certain of the Mortgage Loans will be purchased
by the Company from German American Capital Corporation ("GACC"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated August 26, 1999 (the "GACC Warehouse Mortgage Loan Purchase Agreement"),
between the Company and GACC. Certain of the Mortgage Loans will be purchased by
the Company from Xxxxxxx Xxxxx Mortgage Company ("GSMC"), pursuant to, and for
the consideration described in, the Mortgage Loan Purchase Agreement, dated as
of August 26, 1999 (the "GSMC Warehouse Mortgage Loan Purchase Agreement"),
between the Company and GSMC. Certain of the Mortgage Loans (the "GACC Mortgage
Loans") were purchased by the Company from GACC ("GACC") pursuant to a mortgage
loan purchase agreement, dated as of August 26, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans (the "GSMC Mortgage Loans") were purchased by the Company from GSMC
("GSMC") pursuant to a mortgage loan purchase agreement, dated as of August 26,
1999 (the "GSMC Mortgage Loan Purchase Agreement"), between the Company and
GSMC.
The Company has sold the Class X, Class A-1-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates to Deutsche Bank
Securities Inc. and Xxxxxxx, Xxxxx & Co. as the underwriters (the
"Underwriters") named in the Underwriting Agreement, dated August 26, 1999 (the
"Underwriting Agreement"), among the Company, the Seller, and the Underwriters.
The Company sold the Class G, Class H, Class J, Class K, Class L, Class M, Class
B-1
N, Class R-I, Class R-II and Class R-III Certificates to Deutsche Bank
Securities, Inc., Xxxxxxx, Xxxxx & Co. and G2 Opportunity Fund LP as initial
purchasers (the "Initial Purchasers") pursuant to two Certificate Purchase
Agreements, each dated August 26, 1999 (the "Certificate Purchase Agreements"),
between the Company, GMACCM and the Initial Purchasers. The Certificate Purchase
Agreements, the Underwriting Agreement, the GMACCM Mortgage Loan Purchase
Agreement, the Column Mortgage Loan Purchase Agreement, the GACC Warehouse
Mortgage Loan Purchase Agreement, the GSMC Warehouse Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement, the GSMC Mortgage Loan
Purchase Agreement, and the Pooling and Servicing Agreement are referred to
herein collectively as the "Agreements." Capitalized terms not defined herein
have the meanings set forth in the Agreements.
In connection with rendering this opinion letter, I have examined the
Agreements and such other records and other documents as I have deemed
necessary. I have further assumed that there is not and will not be any other
agreement that materially supplements or otherwise modifies the agreements
expressed in the Agreements. As to matters of fact, I have examined and relied
upon representations of parties contained in the Agreements and, where I have
deemed appropriate, representations and certifications of officers of the
Company, GMACCM, the Trustee, other transaction participants or public
officials. I have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures other than officers of the Company
and GMACCM, the legal capacity of natural persons other than officers of the
Company and GMACCM and the conformity to the originals of all documents
submitted to me as copies. I have assumed that all parties, except for the
Company and GMACCM, had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, I also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and the enforceability of such documents. I have further assumed the
conformity of the Mortgage Loans and related documents to the requirements of
the Agreements.
In rendering this opinion letter, I do not express any opinion concerning
any law other than the law of the Commonwealth of Pennsylvania, the General
Corporation Law of the State of Delaware and the federal law of the United
States, and I do not express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
the requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
B-2
2. GMACCM has the requisite power and authority, corporate or other, to
enter into and perform its obligations under the Agreements.
3. Each of the Agreements has been duly and validly authorized, executed
and delivered by the Company and GMACCM and, upon due authorization, execution
and delivery by the other parties thereto, will constitute the valid, legal and
binding agreements of GMACCM and the Company, enforceable against GMACCM and the
Company in accordance with their terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
4. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, State of Delaware, State of California or federal court or
governmental agency or body is required for the consummation by GMACCM or the
Company of the transactions contemplated by the terms of the Agreements, except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither the sale, issuance and delivery of the Certificates as provided
in the Agreements nor the consummation of any other of the transactions
contemplated by, or the fulfillment by the Company or GMACCM of any other of the
terms of, the Agreements, will result in a breach of any term or provision of
the charter or bylaws of GMACCM or the Company or any Commonwealth of
Pennsylvania, State of Delaware, or federal statute or regulation or conflict
with, result in a breach, violation or acceleration of or constitute a default
under the terms of any indenture or other material agreement or instrument to
which GMACCM or the Company is a party or by which it is bound or any order or
regulation of any Commonwealth of Pennsylvania or federal court, regulatory
body, administrative agency or governmental body having jurisdiction over GMACCM
or the Company.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxx, Xxxxx & Xxxxx, is entitled
to rely hereon without my prior written consent. Copies of this opinion letter
may not be furnished to any other person or entity, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document
without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
B-3
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Norwest Bank Minnesota, National Association
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Fitch IBCA, Inc.
Xxxxx'x Investors Service, Inc.
B-4
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
C-1
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
D-1
EXHIBIT E
__________ __, 1999
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C3
Pursuant to Section 4.3 of the Underwriting Agreement, dated August 26,
1999 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Xxxxxxx Xxxxx & Co. and Deutsche
Bank Securities Inc., both an underwriter set forth therein (collectively the
"Underwriters") relating to the Certificates referenced above, each of the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was [ ]%
CPR.
(b) With respect to each class of Certificates, set forth below is (i), the
first price at which 10% of the aggregate actual 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
__________ __, 1999; (2) adding such estimated fair market value to the
aggregate purchase price of each class of Certificates described in clause (i)
or (ii) above; (3) dividing each of the fair market values determined in clause
(1) by the sum obtained in clause (2); (4) multiplying the quotient obtained for
each class of Certificates in clause (3) by the purchase price paid by the
Purchaser for all the Certificates; and (5) for each class of Certificates,
dividing the product obtained from such class of Certificates in clause (4) by
the original actual or notional, as the case may be, principal balance of such
class of Certificates:
E-1
Class X: ________________
Class A-1-a: ________________
Class A-1-b: ________________
Class A-2: ________________
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 not include accrued interest with respect to
periods before closing.
DEUTSCHE BANK SECURITIES INC.
By: _____________________________
Name: _____________________________
Title:_____________________________
By: _____________________________
Name: _____________________________
Title:_____________________________
XXXXXXX, XXXXX & CO.
By: _____________________________
Name: _____________________________
Title:_____________________________
E-2
