Exhibit 1.2
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$667,148,619*
(*by initial notional principal amount)
Mortgage Pass-Through Certificates, Series 1999-C1,
CLASS X CERTIFICATE PURCHASE AGREEMENT
as of February 2, 1999
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to GMAC Commercial Mortgage Corporation (the
"Purchaser" or "GMACCM") a portion of the Class X of Mortgage Pass-Through
Certificates, Series 1999-C1, having an initial aggregate notional principal
amount (a "Class Notional Amount") of $667,148,619 and an initial pass-through
rate of 0.690% (the "Purchased Certificate"). The Class X, Class A-1, Class A-2,
Class B, Class C, Class D and Class E Certificates (the "Publicly Offered
Certificates"), together with the Class F, Class G, Class H, Class J and Class K
Certificates issued therewith, will evidence the entire interest in the Trust
Fund (as defined in the Pooling and Servicing Agreement referred to below)
consisting primarily of a pool (the "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 Purchased Certificate will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of February 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 Purchased
Certificate is described in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to the Purchaser.
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 February 2, 1999 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Company and GMACCM. Certain of the Mortgage Loans (the
"ML Trust Mortgage Loans") will be acquired by the Company from LaSalle National
Bank as Trustee for Restructured Asset Certificates With Enhanced Returns,
Series 1998-ML Trust ("ML Trust") pursuant to a mortgage
loan purchase agreement, dated as of February 2, 1999 (the "ML Trust Mortgage
Loan Purchase Agreement"), between the Company and ML Trust. 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 February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between the Company and GACC (the GACC Mortgage Loans,
together with the GMACCM Mortgage Loans and the ML Trust Mortgage Loans, the
"Mortgage Loans"). GMACCM, ML Trust and GACC together constitute the "Mortgage
Loan Sellers." The "Cut-off Date" with respect to each Mortgage Loan shall be
the due date for such Mortgage Loan in February 1999.
1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the Purchaser
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 Certificates (issuable in series), including the
Publicly Offered Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to the Purchaser. 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 February 2, 1999 (the "Prospectus Supplement"), to the prospectus
dated November 5, 1998 (the "Basic Prospectus"), relating to the Publicly
Offered 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 Publicly Offered
Certificates, are hereinafter called the "Prospectus" and any diskette
attached to the Prospectus is hereinafter called the "Diskette." Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 424, or prior to the effective date of the
Registration Statement pursuant to Rule 402(a), or 424(a) is hereinafter
called a "Preliminary Prospectus Supplement;" and any diskette attached to
the Preliminary Prospectus Supplement is hereinafter referred to as the
"Preliminary Diskette." As used herein, "Pool Information" means the
compilation of information and data regarding the Mortgage Loans covered by
the Agreed Upon Procedures Letter dated February 2, 1999 and rendered by
Deloitte & Touche, L.L.P. (a "hard copy" of which Pool Information was
initialed on behalf of each Mortgage Loan Seller and the Company).
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as
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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
(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.
(e) As of the Closing Date (as defined herein), the Purchased
Certificate 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.
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 the Purchaser, and the Purchaser agrees to purchase from the Company,
the Purchased Certificate with a Class Notional Amount of $667,164,136 at a
price of 4.498540. There will be added to the purchase prices of the Purchased
Certificate an amount equal to interest accrued thereon from the Cut-off Date to
but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Purchased
Certificate shall be made at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP at
10:00 a.m., New York City time, on February 9, 1999 or such later date as the
Purchaser shall designate, which date and time may be postponed by agreement
between the Purchaser and the Company (such date and time of delivery and
payment for the Purchased Certificate being herein called the "Closing Date").
Delivery of the Purchased Certificate (also referred to herein as the "DTC
Registered Certificates") shall be made to the account of the Purchaser through
DTC.
4. Agreements. The Company agrees with the Purchaser that:
4.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Publicly Offered Certificates, the Company
will furnish the Purchaser with a copy of each such proposed amendment or
supplement.
4.2 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.
4.3 If, during the period after the first date of the public offering
of the Publicly Offered Certificates in which a prospectus relating to the
Publicly Offered Certificates is
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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 Purchaser,
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.
4.4 The Company will furnish to the Purchaser, 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
Purchaser may reasonably request.
4.5 The Company agrees, so long as the Publicly Offered Certificates
shall be outstanding, to deliver to the Purchaser 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.
4.6 If, during the period after the Closing Date in which a prospectus
relating to the Purchased Certificate 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 Purchased Certificate is in effect, the Company will advise the
Purchaser of the issuance of such stop order.
5. Conditions to the Obligations of the Purchaser. The Purchaser's
obligation to purchase the Purchased Certificate shall be subject to the
following conditions:
5.1 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.
5.2 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 as Master Servicer.
5.3 The Company shall have delivered to the Purchaser 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:
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(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.
5.4 [Reserved]
5.5 The Purchaser shall have received the opinions of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Company and GMACCM,
dated the Closing Date and substantially to the effect set forth in Exhibit
A, 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.
5.6 The Purchaser shall have received a copy of the letter from
Deloitte & Touche, L.L.P., certified public accountants, dated the date
hereof and reasonably satisfactory in form and substance to the Purchaser,
to the effect that they have performed certain specified procedures, 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 Mortgage Loan Sellers excluding any
questions of legal interpretation.
5.7 The Purchased Certificate shall have been rated "AAAr" by Standard
& Poor's Rating Services, a division of The XxXxxx-Xxxx Companies, Inc.,
and "AAA" by Fitch IBCA, Inc.
5.8 The Purchaser 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.
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5.9 The Purchaser shall have received from Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP, special counsel to the Company, and from Xxxxx Xxxxxxx-Xxxx,
Esq., general counsel to the Company, reliance letters with respect to any
opinions delivered to the rating agencies identified in Section 5.5 herein.
5.10 The Purchaser shall have received from counsel to each Mortgage
Loan Seller, the opinions substantially to the effect set forth in Exhibit
D-3A and D-3B of the GMACCM Mortgage Loan Purchase Agreement, Exhibit C-3
of the GACC Mortgage Loan Purchase Agreement and Section 8(d) of the ML
Trust Mortgage Loan Purchase Agreement.
The Company will furnish the Purchaser with conformed copies of the above
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
6.1 The Company agrees to indemnify and hold harmless the Purchaser
and each person, if any, who controls such Purchaser 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 Publicly Offered 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 5.2 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.
6.2 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 6.1, 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 Purchaser. 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
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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.
6.3 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company 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 the Company and its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for the
Purchased Certificate.
7. Termination. This Agreement shall be subject to termination by notice
given to the Company, if the sale of the Purchased Certificate provided for
herein is not consummated because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement. If the Purchaser terminates this Agreement in
accordance with this Section 7, the Company will reimburse the Purchaser for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Purchaser in
connection with the proposed purchase and sale of the Purchased Certificate.
8. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Purchaser or the officers of any of the Company and the Purchaser
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 Purchaser or made by or on behalf of the Company or
any of its respective officers, directors or controlling persons, and will
survive delivery of and payment for the Purchased Certificate.
9. Notices. All communications hereunder will be in writing and effective
only on receipt, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx,
Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager with a copy to
the General Counsel, GMAC Commercial Mortgage Corporation; or, if sent to the
Purchaser, will be mailed, delivered or telegraphed and confirmed to it at 000
Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention:
Structured Finance Manager with a copy to the General Counsel, GMAC Commercial
Mortgage Corporation.
10. 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
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persons referred to in Section 6 hereof, and their successors and assigns,
and no other person will have any right or obligation hereunder.
11. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
12. 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.
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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 and the
Purchaser.
Very truly yours,
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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EXHIBIT A
Form of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
To be provided
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
February __, 1999
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C1
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-C1 (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 February 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 (the "GMACCM Mortgage Loans") were purchased
by the Company from GMACCM pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of February 2, 1999 (the
"Mortgage Loan Purchase Agreement"), between GMACCM and the Company. Certain of
the Mortgage Loans (the "GACC Mortgage Loans") were purchased by the Company
from German American Capital Corporation ("GACC") pursuant to the Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company. Certain of the Mortgage
Loans (the "ML Trust Mortgage Loans") were purchased by the Company from LaSalle
National Bank as Trustee for Restructured Asset Certificates With Enhanced
Returns, Series 1998-ML Trust ("ML Trust") pursuant to the Mortgage Loan
Purchase Agreement, dated as of February 2, 1999 (the "ML Trust Mortgage Loan
Purchase Agreement"), between ML Trust and the Company.
The Company sold a portion of the Class X Certificates and all of the Class
A-1, Class A-2, Class B, Class C, Class D and Class E Certificates to Xxxxxxx,
Xxxxx & Co., Deutsche Bank Securities Inc. and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation as the underwriters (the "Underwriters") named in the
Underwriting Agreement, dated as of February 2, 1999 (the "Underwriting
Agreement"), among the Company, GMACCM and the Underwriters. The Company sold
the remaining portion of the Class X Certificates to GMACCM pursuant to the
Class X Certificate Purchase Agreement, dated as of February 2, 1999 (the "Class
X Certificate Purchase Agreement"), between the Company and GMACCM, and all of
the Class F, Class G, Class H, Class J and Class K Certificates to GMACCM as
initial purchaser (in such capacity, an "Initial Purchaser") pursuant to the
Certificate Purchase Agreement, dated as of February 2, 1999 (the "Certificate
Purchase Agreement"), between the Company and GMACCM. The Company sold the Class
R-I, Class R-II and Class R-III Certificates to Xxxxxxx, Sachs & Co. as initial
purchaser (in such capacity, an Initial Purchaser"). The Certificate Purchase
Agreement, the
Underwriting Agreement, the Class X Certificate Purchase Agreement, the GMACCM
Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the
ML Trust Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement are collectively referred to 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. GMACCM has the requisite power and
authority, corporate or other, to enter into and perform its obligations under
the Agreements. 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,
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(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. 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. 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 Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, is entitled
to rely hereon without my prior written consent. Copies of this opinion letter
may not be furnished to any other person or entity, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document
without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
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Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Xxxxxxx, Xxxxx & Co.
Deutsche Bank Securities Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Norwest Bank Minnesota, National Association
Fitch IBCA, Inc.
Standard & Poor's Ratings Services
