EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,476,020,000(1)
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-C1
CLASS A-1, CLASS A-1A, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5,
CLASS X-2, CLASS A-M, CLASS A-J, CLASS B, CLASS C AND CLASS D
UNDERWRITING AGREEMENT
JUNE 3, 2005
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GMAC Commercial Holding Capital Markets Corp.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Mortgage Pass-Through Certificates,
Series 2005-C1, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance"), or with
respect to the Class X-2 Certificates, the initial aggregate notional principal
amount (the "Class Notional Amount"), and initial pass-through rate set forth on
Schedule I (such Certificates, the "Underwritten Certificates"). The Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-5, Class X-2, Class A-M,
Class A-J, Class B, Class C and Class D Certificates, together with the Class
X-1, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class W, Class R-I, Class R-II and Class
R-III Certificates issued therewith (collectively, the "Certificates"), will
evidence the entire interest in the Trust Fund (as defined in the Pooling and
Servicing Agreement referred to below) consisting primarily of a pool of
multifamily and commercial mortgage loans as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of June 1, 2005 among the
Company, as depositor, GMAC Commercial Mortgage Corporation ("GMACCM"), as
master servicer (in such capacity,
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(1) Includes original principal amounts only. The Class X-2 Certificates will
have an approximate original notional amount of $1,490,771,000.
the "Master Servicer") and serviced whole loan paying agent, GMACCM, as special
servicer (in such capacity, the "Special Servicer"), and LaSalle Bank National
Association, as trustee (the "Trustee") and ABN AMRO Bank, N.V., as fiscal
agent. The Certificates are described in the Basic Prospectus and the Prospectus
Supplement (each as hereinafter defined) which the Company has furnished to the
Underwriters.
Certain of the Mortgage Loans (the "GMACCM Mortgage Loans") will be
acquired by the Company from GMACCM pursuant to a mortgage loan purchase
agreement, dated as of June 3, 2005 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"MSMC Mortgage Loans") will be acquired by the Company from Xxxxxx Xxxxxxx
Mortgage Capital, Inc. ("MSMC") pursuant to a mortgage loan purchase agreement,
dated as of June 3, 2005 (the "MSMC Mortgage Loan Purchase Agreement"), between
the Company and MSMC. Certain of the Mortgage Loans (the "GACC Mortgage Loans")
will be acquired by the Company from German American Capital Corporation
("GACC") pursuant to a mortgage loan purchase agreement, dated as of June 3,
2005 (the "GACC Mortgage Loan Purchase Agreement"), between the Company and
GACC.
The GMACCM Mortgage Loans, the MSMC Mortgage Loans and the GACC
Mortgage Loans together are referred to herein as the "Mortgage Loans." GMACCM,
MSMC and GACC are collectively referred to herein as the "Mortgage Loan
Sellers." The GMACCM Mortgage Loan Purchase Agreement, the MSMC Mortgage Loan
Purchase Agreement and the GACC Mortgage Loan Purchase Agreement are
collectively referred to herein as the "Purchase Agreements." The "Cut-off Date"
with respect to each Mortgage Loan shall be the due date for such Mortgage Loan
in June, 2005.
SECTION 1. Representations, Warranties, and Covenants.
SECTION 1.1. The Company represents and warrants to, and
agrees with the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-123974) on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of
Mortgage Pass-Through Certificates (issuable in series),
including the Certificates, which registration statement has
become effective, and a copy of which, as amended to the date
hereof, has heretofore been delivered to the Underwriters. The
Company proposes to file with the Commission pursuant to Rule
424(b) under the rules and regulations of the Commission under
the Securities Act (the "Securities Act Regulations") a
supplement dated June 3, 2005 (the "Prospectus Supplement"),
to the prospectus dated April 26, 2005 (the "Basic
Prospectus"), relating to the Certificates and the method of
distribution thereof. Such registration statement (No.
333-123974) 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-
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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 June 3, 2005 and rendered by Deloitte
& Xxxxxx, L.L.P. (a "hard copy" of which Pool Information was
initialed on behalf of each of GMACCM, MSMC, GACC, GMAC
Commercial Holding Capital Markets Corp. 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 Securities Act and the
Securities Act Regulations; and the Registration Statement, as
of the Effective Date, did not contain any untrue statement of
a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus and any
Diskette, as of the date of the Prospectus Supplement, did
not, and as of the Closing Date will not, contain an untrue
statement of a material fact and did not and will not omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
neither the Company nor GMACCM makes any representations or
warranties as to the information contained in or omitted from
the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto relating to the information
identified by underlining or other highlighting as shown in
Exhibit A (the "Excluded Information"); 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)
any information contained in or omitted from the portions of
the Prospectus identified by underlining or other highlighting
as shown in Exhibit B (the "Underwriter Information");
provided, further, that, solely with respect to the sale of
the Certificates under this Agreement, neither the Company
nor, except as contemplated by Section 1.2(a), GMACCM, makes
any
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representations or warranties as to any information contained
in or omitted from the Prospectus Supplement, or Annex A or
Annex B to the Prospectus Supplement or the Diskette, insofar
as such information relates to (w) the Mortgage Loan Sellers,
(x) the Mortgage Loans, the General Motors Building Whole
Loan, the 000 Xxxx 00xx Xxxxxx Whole Loan, the Loews Miami
Beach Whole Loan, the Wellpoint Office Tower Whole Loan, the
Windsor Hospitality Portfolio Whole Loan, the San Marcos
Apartments Whole Loan and the College Station Apartments Whole
Loan (each as defined in the Prospectus Supplement) or the
Mortgaged Properties related thereto, (y) any intercreditor
agreement(s) relating to the Mortgage Loans, the General
Motors Building Whole Loan, the 000 Xxxx 00xx Xxxxxx Whole
Loan, the Loews Miami Beach Whole Loan, the Wellpoint Office
Tower Whole Loan, the Windsor Hospitality Portfolio Whole
Loan, the San Marcos Apartments Whole Loan and the College
Station Apartments Whole Loan or (z) the GE 2005-C2 Pooling
and Servicing Agreement or the COMM 2005-LP5 Pooling and
Servicing Agreement (as defined in the Prospectus Supplement)
(such information described in the foregoing clauses (w), (x),
(y) and (z), the "Mortgage Loan Seller Information"), other
than that the Mortgage Loan Seller Information (exclusive of
the information set forth on the pages between A-22 and A-23,
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; 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
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equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent
that such public policy considerations limit the
enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws
liabilities.
(e) As of the Closing Date (as defined herein), the
Certificates will conform in all material respects to the
description thereof contained in the Prospectus and the
representations and warranties of the Company in the Pooling
and Servicing Agreement will be true and correct in all
material respects.
SECTION 1.2. GMACCM represents and warrants to and agrees with
you that:
(a) As of the Closing Date, the representations and
warranties of GMACCM in the Pooling and Servicing Agreement
and in Section 4(b) of the GMACCM Mortgage Loan Purchase
Agreement will be true and correct in all material respects.
(b) This Agreement has been duly authorized, executed and
delivered by GMACCM and, assuming the due authorization,
execution and delivery by the Underwriters, constitutes a
valid, legal and binding obligation of GMACCM, enforceable
against GMACCM in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of
equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws to the extent
that such public policy considerations limit the
enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws
liabilities.
SECTION 1.3. Each Underwriter represents and warrants to and
agrees with the Company and GMACCM that:
(a) With respect to each class of Underwritten
Certificates, if any, to be issued in authorized denominations
of $25,000 or lesser initial principal balance or evidencing
percentage interests in such class of less than 20%, as the
case may be, the fair market value of all such Underwritten
Certificates sold to any single Person on the date of initial
sale thereof by such Underwriter will not be less than
$100,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations
hereunder, 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
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therein that are caused by errors in the Pool Information) and
include all assumptions material to the preparation thereof.
The Computational Materials and ABS Term Sheets provided by
such Underwriter to the Company constitute a complete set of
all Computational Materials and ABS Term Sheets delivered by
such Underwriter to prospective investors that are required to
be filed with the Commission.
SECTION 1.4. Each Underwriter agrees with the Company and
GMACCM that it will cause the Person(s) acquiring the Residual
Certificates on the Closing Date, to execute and deliver, the Transfer
Affidavit and Agreement referred to in Section 5.02 of the Pooling and
Servicing Agreement, substantially in the form of Exhibit C-1 to the
Pooling and Servicing Agreement.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the actual
principal amounts (or with respect to the Class X-2 Certificates, the actual
notional principal amount) or percentage interests set forth in Schedule I
hereto in the respective classes of Underwritten Certificates at a price for
each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Underwritten Certificates an amount equal to interest
accrued thereon from June 1, 2005 to but not including the Closing Date.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the offices of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, New York, New York 10103 at 10:00 a.m., New York City time, on
June 16, 2005 or such later date as the Underwriters shall designate, which date
and time may be postponed by agreement between the Underwriters and the Company
(such date and time of delivery and payment for the Underwritten Certificates
being herein called the "Closing Date"). Delivery of the Underwritten
Certificates (also referred to herein as the "DTC Registered Certificates")
shall be made to the respective accounts of the Underwriters through DTC, in
each case against payment by the Underwriters to or upon the order of each
Mortgage Loan Seller by wire transfer in immediately available funds of the
amount that has been agreed to by each such Mortgage Loan Seller and the Company
(net of certain expenses, which will be paid by the Underwriters on behalf of
the Company). As a further condition to the delivery of the DTC Registered
Certificates, each Underwriter shall have furnished by telephonic notice to the
applicable Mortgage Loan Seller the federal reference number for the related
wire transfer to such Mortgage Loan Seller and shall have furnished to the
Company each such federal reference number as soon as practicable after such
federal reference number becomes available.
SECTION 4. Offering by Underwriters.
SECTION 4.1. It is understood that the Underwriters propose to
offer the Underwritten Certificates for sale to the public as set forth
in the Prospectus, and the Underwriters agree that all offers and sales
by the Underwriters shall be made in compliance with all applicable
laws and regulations. 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
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statement pursuant to Section 352-e of the General Business Law of the
State of New York with respect to the Underwritten Certificates. As
required by Policy Statement 105, each Underwriter therefore covenants
and agrees with the Company that sales of the Underwritten Certificates
made by such Underwriter in and from the State of New York will be made
only to institutional investors within the meaning of Policy Statement
105.
SECTION 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 to such term in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of such Underwriter. For
purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of
such Underwriter.
(c) (i) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be
filed pursuant to the No-Action Letters shall bear a legend on
each page including the following statement:
"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
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SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend
shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE CERTIFICATES AND [,
EXCEPT WITH RESPECT TO THE INITIAL COLLATERAL TERM SHEET
PREPARED BY THE UNDERWRITERS,] SUPERSEDES ALL INFORMATION
CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING TO THE
MORTGAGE POOL PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE]
UNDERWRITER]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing,
subsections (c)(i) and (c)(ii) will be satisfied if all Computational Materials
and ABS Term Sheets referred to therein bear a legend in a form previously
approved in writing by the Company.
(d) Such Underwriter shall provide the Company with
representative forms of all Computational Materials and ABS
Term Sheets prior to their first use, to the extent such forms
have not previously been approved by the Company for use by
the Underwriters. Such Underwriter shall provide to the
Company, for filing on Form 8-K as provided in Section 5.9,
copies (in such format as required by the Company) of all
Computational Materials and ABS Term Sheets that are required
to be filed with the Commission pursuant to the No-Action
Letters. Such Underwriter may provide copies of the foregoing
in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term
Sheets described in this subsection (d) must be provided to
the Company not later than 10:00 a.m. New York City time one
business day before filing thereof is required pursuant to the
terms of this Agreement. Such Underwriter agrees that it will
not provide to any investor or prospective investor in the
Certificates any Computational Materials or ABS Term Sheets on
or after the day on which Computational Materials and ABS Term
Sheets are required to be provided to the Company pursuant to
this Section 4.2(d) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the
Company in accordance with this 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.
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(e) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially
the same methodology and assumptions that are used to generate
the information in the Prospectus Supplement as set forth
therein; provided, however, that the Computational Materials
and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein.
If any Computational Materials or ABS Term Sheets delivered by
such Underwriter that are required to be filed were based on
assumptions with respect to the Pool that differ from the
final Pool Information in any material respect or on
Certificate structuring terms that were revised in any
material respect prior to the printing of the Prospectus, such
Underwriter shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final Pool
Information and final structuring assumptions, circulate such
revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated
orally to such Underwriter they would purchase all or any
portion of the Certificates, and include such revised
Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant
to subsection (d) above.
(f) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been
determined to contain any material error or omission;
provided, 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," with appropriate dates inserted.
In the event that within the period during which the
Prospectus relating to the Certificates is required to be
delivered under the Securities 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
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electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission
in accordance with the No-Action Letters, and such Underwriter
shall provide the Company with a certification to that effect
on the Closing Date.
(h) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and
ABS Term Sheets required to be delivered in accordance with
subsection (d) above, or in the delivery of the accountant's
comfort letter in respect thereof pursuant to Section 5.9, the
Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions, in each
case as necessary in order to allow the Company to comply with
its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time
specified therein.
(i) Each Underwriter represents and warrants that it has in
place, and covenants that it shall maintain internal controls
and procedures which it reasonably believes to be sufficient
to ensure full compliance with all applicable legal
requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term
Sheets in connection with the offering of the Certificates.
(j) Notwithstanding anything herein to the contrary, for
purposes of this Agreement, neither the Preliminary Diskette
nor the Diskette shall be deemed to be Computational Materials
or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the
extent it provided any prospective investors with any Computational Materials or
ABS Terms Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
SECTION 4.3. Each Underwriter further agrees that, on or prior
to the sixth day after the Closing Date, it shall provide the Company
with a certificate, substantially in the form of Exhibit C attached
hereto, setting forth (i) in the case of each class of Underwritten
Certificates, (a) if less than 10% of the aggregate actual principal
balance of such class of Underwritten Certificates has been sold to the
public as of such date, the value calculated pursuant to clause
(b)(iii) of Exhibit C hereto, or (b) if 10% or more of such class of
Underwritten Certificates has been sold to the public as of such date
but no single price is paid for at least 10% of the aggregate actual
principal balance of such class of Underwritten Certificates, then the
weighted average price at which the Underwritten Certificates of such
class were sold expressed as a percentage of the aggregate actual
principal balance of such class of Underwritten Certificates sold, or
(c) the first single price at which at least 10% of the aggregate
actual principal balance of such class of Underwritten Certificates was
sold to the public, (ii) the prepayment assumption used in pricing each
class of Underwritten Certificates, and (iii) such other information as
to matters of fact as the Company may reasonably request to enable it
to comply with its
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reporting requirements with respect to each class of Underwritten
Certificates to the extent such information can in the good faith
judgment of such Underwriter be determined by it.
SECTION 5. Agreements. The Company agrees with the several Underwriters
that:
SECTION 5.1. Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Underwritten
Certificates, the Company will furnish the Underwriters with a copy of
each such proposed amendment or supplement.
SECTION 5.2. The Company will cause the Prospectus Supplement
to be transmitted to the Commission for filing pursuant to Rule 424(b)
under the Securities Act by means reasonably calculated to result in
filing with the Commission pursuant to said rule.
SECTION 5.3. If, during the period after the first date of the
public offering of the Underwritten Certificates in which a prospectus
relating to the Underwritten Certificates is required to be delivered
under the Securities Act, any event occurs as a result of which it is
necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Securities Act
Regulations, the Company promptly will prepare and furnish, at its own
expense, to the Underwriters, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
SECTION 5.4. The Company will furnish to the Underwriters,
without charge, a copy of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by an
underwriter or dealer may be required by the Securities Act, as many
copies of the Prospectus, any documents incorporated by reference
therein, and any amendments and supplements thereto as the Underwriters
may reasonably request.
SECTION 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.
SECTION 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,
-11-
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
SECTION 5.7. Except as herein provided, the several
Underwriters shall be responsible only for paying all costs and
expenses incurred by them, including the fees and disbursements of
their counsel, in connection with the purchase and sale of the
Underwritten Certificates.
SECTION 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 Securities Act, the Company receives
notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the
Underwritten Certificates is in effect, the Company will advise the
Underwriters of the issuance of such stop order.
SECTION 5.9. 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).
SECTION 6. Conditions to the Obligations of the Underwriters. The
Underwriters' obligation to purchase the Underwritten Certificates shall be
subject to the following conditions:
SECTION 6.1. No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending or, to the knowledge of the Company,
threatened by the Commission; and the Prospectus Supplement shall have
been filed or transmitted for filing, by means reasonably calculated to
result in a filing with the Commission pursuant to Rule 424(b) under
the Securities Act.
-12-
SECTION 6.2. Since January 1, 2005, there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company or GMACCM.
SECTION 6.3. The Company shall have delivered to the
Underwriters a certificate, dated the Closing Date, of the President, a
Senior Vice President or a Vice President of the Company to the effect
that the signer of such certificate has examined this Agreement, the
Prospectus, the Pooling and Servicing Agreement and various other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(a) the representations and warranties of the Company in
this Agreement and in the Pooling and Servicing Agreement are
true and correct in all material respects; and
(b) the Company has, in all material respects, complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to
the Closing Date.
SECTION 6.4. GMACCM shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of GMACCM to the effect that the signer
of such certificate has examined the Pooling and Servicing Agreement
and this Agreement and that, to the best of his or her knowledge after
reasonable investigation, the representations and warranties of GMACCM
contained in the Pooling and Servicing Agreement and in this Agreement
are true and correct in all material respects.
SECTION 6.5. The Underwriters shall have received the opinions
of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Company
and GMACCM, dated the Closing Date as to such matters reasonably
requested by the Underwriters, the opinion of Xxxxxxxxx Xxx, Esq.,
associate counsel for the Company and GMACCM dated the Closing Date, as
to such matters reasonably requested by the Underwriters.
SECTION 6.6. The Underwriters shall have received from their
counsel an opinion dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters.
SECTION 6.7. The Underwriters shall have received from
Deloitte & Touche, L.L.P., certified public accountants, (a) a letter
dated the date hereof and reasonably satisfactory in form and substance
to the Underwriters and their counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed
to by you, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth
in the Prospectus Supplement under the captions "Description of the
Mortgage Pool," "Description of the Certificates" and "Yield and
Maturity Considerations" agrees with the records of the Company and the
Mortgage Loan Sellers excluding any questions of legal interpretation
and (b) the letter prepared pursuant to Section 5.9 hereof.
-13-
SECTION 6.8. The respective classes of Underwritten
Certificates shall have been rated as set forth on Schedule I.
SECTION 6.9. The Underwriters shall have received, with
respect to the Trustee, a favorable opinion of counsel, dated the
Closing Date, addressing the valid existence of such party under the
laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such
party and, subject to standard limitations regarding laws affecting
creditors' rights and general principles of equity, the enforceability
of the Pooling and Servicing Agreement against such party. Such opinion
may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by
officers and/or authorized representatives of, parties to this
Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the laws of each state in which the
writer of the opinion is admitted to practice law and the federal law
of the United States.
SECTION 6.10. The Underwriters shall have received from
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the Company, and
from Xxxxxxxxx Xxx, associate counsel, to the Company, reliance letters
with respect to any opinions delivered to the rating agencies
identified on Schedule I hereto.
SECTION 6.11. The Underwriters shall have received from
counsel to each Mortgage Loan Seller, the opinions substantially to the
effect set forth in Section 8(e) of each Mortgage Loan Seller's
respective Purchase Agreement.
SECTION 6.12. The Company will furnish the Underwriters with
conformed copies of the above opinions, certificates, letters and
documents as they reasonably request.
SECTION 7. Indemnification and Contribution.
SECTION 7.1. The Company and GMACCM, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934 (the "Exchange Act"), from and against any and all
losses, claims, damages and liabilities 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
-14-
misleading, except insofar as such losses, claims, damages, or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon any information with
respect to which the Underwriters have agreed to indemnify the Company
pursuant to Section 7.2; provided that the Company and GMACCM will be
liable for any such loss, claim, damage or liability that arises out of
or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein relating to the Mortgage
Loan Seller Information or Pool Information only if and to the extent
that (i) any such untrue statement is with respect to information
regarding the GMACCM Mortgage Loans contained in the Loan Detail or, to
the extent consistent with Annex A to the Prospectus Supplement, the
Diskette, or (ii) any such untrue statement or alleged untrue statement
or omission or alleged omission is with respect to information
regarding any or all of the Mortgage Loan Sellers, any or all of the
Mortgage Loans or any or all of the Mortgaged Properties related
thereto contained in the Prospectus Supplement, or Annex A or Annex B
to the Prospectus Supplement (exclusive of the Loan Detail) (provided
that with respect to information set forth in Annex B specifically
attributed to any appraisal for the related Mortgaged Property, only if
such information is misstated in Annex B), and such information
represents a restatement or aggregation of information contained in the
Loan Detail, or (iii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to
information regarding GMACCM, the GMACCM Mortgage Loans, the Windsor
Hospitality Portfolio Whole Loan or any or all of the Mortgaged
Properties related thereto contained in the Prospectus Supplement or
Annex A or Annex B to the Prospectus Supplement (exclusive of the Loan
Detail) (provided that with respect to information set forth in Annex B
specifically attributed to any appraisal for the related Mortgaged
Property, only if such information is misstated in Annex B), and such
information does not represent a restatement or aggregation of
information contained in the Loan Detail; and provided that none of the
Company, GMACCM or any Underwriter will be liable in any case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged 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.
SECTION 7.2. Each Underwriter agrees, severally and not
jointly to indemnify and hold harmless the Company, GMACCM, their
respective directors or officers and any person who controls the
Company or GMACCM within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in Section 7.1 above from the Company and
GMACCM to the Underwriters, but only with respect to (i) the
Underwriter Information relating to such Underwriter or supplied by
such Underwriter to the Company for inclusion in the Prospectus
Supplement and (ii) the Computational Materials and ABS Term Sheets
-15-
delivered to investors in the Certificates by such Underwriter, except
to the extent of any errors in the Computational Materials or ABS Term
Sheets or Term Sheet Diskettes that are caused by errors in the Pool
Information or information contained in the Term Sheet Master Tape;
provided, however, that the indemnification set forth in this Section
7.2 shall not apply to the extent of any errors in the Computational
Materials or ABS Term Sheets that are caused by Excluded Pool
Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms
Sheets in accordance with Section 4.2(e) and has delivered them to the
Company (or its counsel) no later than one (1) business day after
delivery to investors. In addition, the Underwriter agrees to indemnify
and hold harmless the Company, GMACCM, their respective directors or
officers and any person who controls the Company or GMACCM within the
meaning of either Section 15 of the Securities 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.
SECTION 7.3. In case any proceeding (including any
governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either Section 7.1
or 7.2, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the reasonable fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm for all such indemnified parties. Such firm
shall be designated in writing by the Underwriters, in the case of
parties indemnified pursuant to Section 7.1, and by the Company or
GMACCM, in the case of parties indemnified pursuant to Section 7.2. The
indemnifying party may, at its option, at any time upon written notice
to the indemnified party, assume the defense of any proceeding and may
designate counsel reasonably satisfactory to the indemnified party in
connection therewith; provided, the counsel so designated would have no
actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
-16-
judgment. If the indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the
consent of the indemnified party or, if such settlement provides for
release of the indemnified party in connection with all matters
relating to the proceeding which have been asserted against the
indemnified party in such proceeding by the other parties to such
settlement, without the consent of the indemnified party.
SECTION 7.4. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7.1 or
7.2 hereof or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities, in such proportion as is appropriate to
reflect not only the relative benefits received by the Company and
GMACCM on the one hand and any of the Underwriters, on the other from
the offering of the Underwritten Certificates but also the relative
fault of the Company and GMACCM on the one hand and any of the
Underwriters, on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company and GMACCM,on the one hand and of any
of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or GMACCM or by an
Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
SECTION 7.5. The Company, GMACCM and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation or by any other
method of allocation which does not take account of the considerations
referred to in Section 7.4 above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim except where the
indemnified party is required to bear such expenses pursuant to Section
7.4, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that
the indemnifying party believes that it will be ultimately obligated to
pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be
borne by the indemnifying party hereunder, the party which received
such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
SECTION 7.6. The indemnity and contribution agreements
contained in this Section 7 and the representations and warranties of
the Company and GMACCM in this Agreement shall remain operative and in
full force and effect regardless of (i) any
-17-
termination of this Agreement, (ii) any investigation made by or on
behalf of an Underwriter or any person controlling an Underwriter or by
or on behalf of the Company or GMACCM and their respective directors or
officers or any person controlling the Company or GMACCM and (iii)
acceptance of and payment for any of the Underwritten Certificates.
SECTION 8. Termination. This Agreement shall be subject to termination
by notice given to the Company and GMACCM, if the sale of the Underwritten
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Company or GMACCM to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company or GMACCM shall be unable to perform their respective obligations under
this Agreement. If the Underwriters terminate this Agreement in accordance with
this Section 8, the Company or GMACCM will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Underwriters in
connection with the proposed purchase and sale of the Underwritten Certificates.
SECTION 9. Default by an Underwriter. If any Underwriter shall fail to
purchase and pay for any of the Underwritten Certificates agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriters shall be obligated to take up and pay for the
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase; provided, however, that in the event that the initial principal amount
(or with respect to the Class X-2 Certificates, the initial aggregate notional
principal amount) of Underwritten Certificates that the defaulting Underwriter
agreed but failed to purchase shall exceed 10% of the aggregate principal
balance of all of the Underwritten Certificates set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Underwritten Certificates, and
if such nondefaulting Underwriters do not purchase all of the Underwritten
Certificates, this Agreement will terminate without liability to the
nondefaulting Underwriters, the Company or GMACCM. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date for the
Underwritten Certificates shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
SECTION 10. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities, and other
statements of the Company, GMACCM, the Underwriters, or the officers of any of
the Company, GMACCM and the Underwriters set forth in or made pursuant to this
Agreement, will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or made by or on behalf of the Company or GMACCM or any of their
respective officers, directors or controlling persons, and will survive delivery
of and payment for the Underwritten Certificates.
-18-
SECTION 11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of the Underwriters, will be
mailed, delivered or telegraphed and confirmed to each Representative at the
following address: Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxx; Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: XX Xxxxxx, telecopy number (212)
761-0748, with a copy to Xxxxxxxx Xxxxx, Esq., at 0000 Xxxxxx xx xxx Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000, telecopy number (000) 000-0000; GMAC Commercial
Holding Capital Markets Corp., c/x Xxxxxx Financial Services, 000 Xxxxxxxxx
Xxxxx Xxxxxxxxx, Xxxxx X, Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn: Structured
Finance Group; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Structured Finance Manager with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation; or, if sent to GMACCM, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager with a
copy to the General Counsel, GMAC Commercial Mortgage Corporation.
SECTION 12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
SECTION 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURES FOLLOW]
-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:
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO.
INCORPORATED
By:
------------------------------------------
Name:
Title:
GMAC COMMERCIAL HOLDING CAPITAL
MARKETS CORP.
By:
------------------------------------------
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to,
collectively, the registration statement No. 333-123974 filed by GMAC Commercial
Mortgage Securities, Inc. on Form S-3 and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES
Mortgage Pass-Through Certificates, Series 2005-C1, Class A-1, Class A-1A, Class
A-2, Class A-3, Class A-4, Class A-5, Class X-2, Class A-M, Class A-J, Class B,
Class C and Class D
Underwriters: Deutsche Bank Securities Inc. ("Deutsche"), Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx") and GMAC Commercial Holding Capital Markets Corp.
("GMACCH").
Underwriting Agreement, dated June 3, 2005
Cut-off Date: The due date of any Mortgage Loan in June 2005
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
<TABLE>
----------------------------------------------------------------------------------------------------------------------
UNDERWRITER CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS
A-1 A-1A A-2 A-3 A-4 A-5 X-2 A-M A-J B C D
----------------------------------------------------------------------------------------------------------------------
Deutsche 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50%
----------------------------------------------------------------------------------------------------------------------
Xxxxxx 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50% 50%
----------------------------------------------------------------------------------------------------------------------
GMACCH 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0% 0%
----------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
----------------------------------------------------------------------------------------------------------------------
</TABLE>
I-1
<TABLE>
----------------------------------------------------------------------------------------------------------------------
CLASS INITIAL CLASS PRINCIPAL INITIAL PURCHASE RATINGS
DESIGNATION BALANCE(1) PASS-THROUGH RATE PRICE(2) FITCH/S&P
----------------------------------------------------------------------------------------------------------------------
A-1 $61,200,000 4.208%(3) 100.247865 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-1A $344,507,000 4.615%(3) 100.497979 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-2 $300,000,000 4.471%(3) 100.498858 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-3 $187,300,000 4.538%(3) 100.498741 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-4 $68,100,000 4.619%(3) 100.494087 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-5 $157,393,000 4.697%(3) 100.493525 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
X-2 $1,490,771,000 0.778%(4) 3.413243 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-M $159,785,000 4.754%(3) 100.497114 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
A-J $127,829,000 4.806%(3) 100.496650 AAA/AAA
----------------------------------------------------------------------------------------------------------------------
B $33,954,000 4.936%(3) 100.499797 AA/AA
----------------------------------------------------------------------------------------------------------------------
C $11,984,000 4.988%(3) 100.499678 AA-/AA-
----------------------------------------------------------------------------------------------------------------------
D $23,968,000 5.057%(5) 100.499311 A/A
----------------------------------------------------------------------------------------------------------------------
</TABLE>
-----------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance of the
relevant class of Certificates to be purchased hereunder. In addition, as to
each such class of Certificates, the Underwriters will pay GMAC Commercial
Mortgage Securities, Inc. accrued interest at the initial Pass-Through Rate
therefor from June 1, 2005 to, but not including, the Closing Date.
(3) The Pass Through Rate is the specified fixed rate.
(4) The Class X-2 Certificates will not have a Certificate Balance and
will accrue interest on the Notional Amount (as defined herein) thereof at a
variable rate based on the Weighted Average Net Mortgage Rate.
(5) Initial Pass Through Rate. The Pass Through Rate is the lesser of
the specified fixed rate and the Weighted Average Net Mortgage Rate.
Closing Time, Date and Location: 10:00 a.m. New York City time on June 16, 2005
at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP. Issuance and delivery of
Registered Certificates: Each class of Registered Certificates will be issued as
one or more Certificates registered in the name of Cede & Co., as nominee of The
Depository Trust Company. Beneficial owners will hold interests in such
Certificates through the book-entry facilities of The Depository Trust Company,
in minimum denominations of initial principal balance of (a) in the case of the
$25,000 and in any whole dollar denomination in excess thereof.
I-2
EXHIBIT A
---------
EXCLUDED INFORMATION OF PROSPECTUS SUPPLEMENT
(All circled text and tables are excluded)
A-1
EXHIBIT B
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UNDERWRITER INFORMATION
(All circled text and tables are excluded)
B-1
EXHIBIT C
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June [ ], 2005
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2005-C1
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Pursuant to Section 4.3 of the Underwriting Agreement, dated June 3,
2005 (the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities,
Inc., GMAC Commercial Mortgage Corporation, Deutsche Bank Securities Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated and GMAC Commercial Holding Capital Markets
Corp., each an underwriter set forth therein (collectively the "Underwriters")
relating to the Certificates referenced above, each of the undersigned does
hereby certify that:
The prepayment assumption used in pricing the Certificates was 0% CPR
except for the Class X-2 which were priced at 100% CPR assuming the clean up
call is exercised.
With respect to each class of Certificates, set forth below is (i), the
first price at which 10% of the aggregate actual principal balance of each such
class of Certificates and the notional balance of the Class X-2 Certificates was
sold to the public at a single price, if applicable, or (ii) if more than 10% of
a class of Certificates have been sold to the public but no single price is paid
for at least 10% of the aggregate actual principal balance of such class of
Certificates, then the weighted average price at which the Certificates of such
class were sold expressed as a percentage of the actual principal balance of
such class of Certificates, or (iii) if less than 10% of the aggregate actual
principal balance of a class of Certificates has been sold to the public, the
purchase price for each such class of Certificates paid by the Underwriters
expressed as a percentage of the actual principal balance of such class of
Certificates calculated by: (1) estimating the fair market value of each such
class of Certificates as of June [ ], 2005; (2) adding such estimated fair
market value to the aggregate purchase price of each class of Certificates
described in clause (i) or (ii) above; (3) dividing each of the fair market
values determined in clause (1) by the sum obtained in clause (2); (4)
multiplying the quotient obtained for each class of Certificates in clause (3)
by the purchase price paid by the Underwriters for all the Certificates; and (5)
for each class of Certificates, dividing the product obtained from such class of
Certificates in clause (4) by the original actual principal balance of such
class of Certificates:
Class A-1: 100.247865
Class A-1A: 100.497979
Class A-2: 100.498858
Class A-3: 100.498741
Class A-4: 100.494087
Class A-5: 100.493525
Class X-2 3.413243
C-1
Class A-M 100.497114
Class A-J 100.496650
Class B: 100.499797
Class C: 100.499678
Class D: 100.499311
C-2
The prices set forth above do not include accrued interest with respect
to periods before closing.
DEUTSCHE BANK SECURITIES INC.
By:
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Name:
Title:
By:
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Name:
Title:
XXXXXX XXXXXXX & CO.
INCORPORATED
By:
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Name:
Title:
GMAC COMMERCIAL HOLDING CAPITAL
MARKETS CORP.
By:
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Name:
Title:
