EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$1,501,828,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-C1
CLASS X, CLASS A-1, CLASS A-2, CLASS A-3,
CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
UNDERWRITING AGREEMENT
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as of September 25, 1997
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10028
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto
(the "Underwriters"), for whom each of you is acting as representative
(together, the "Representatives"), the respective classes of Mortgage
Pass-Through Certificates, Series 1997-C1, that are identified on Schedule I,
in each case, having the initial aggregate stated principal amount (a "Class
Principal Balance") or initial aggregate notional principal amount (a "Class
Notional Amount") and initial pass-through rate set forth on Schedule I. The
Class X, Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E
and Class F Certificates (collectively, the "Certificates"), together with the
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 Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of September
1, 1997 (the "Cut-off Date") among the Company, as depositor, GMAC Commercial
Mortgage Corporation ("GMACCM"), as master servicer (in such capacity, the
"Master Servicer") and special servicer (in such capacity, the "Special
Servicer"), LaSalle National Bank as trustee (the "Trustee"), and ABN AMRO Bank
N.V. (the "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 Representatives.
Certain of the Mortgage Loans (the "Xxxxx Mortgage Loans") will be
acquired by the Company from ContiTrade Services, L.L.C. ("Xxxxx") pursuant to
a mortgage loan purchase agreement, dated as of September 25, 1997 (the "Xxxxx
Purchase Agreement"), between the Company and Xxxxx. 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 September 25, 1997 (the "GACC Purchase Agreement"),
between the Company and GACC. Certain of the Mortgage Loans (the "GMACCM
Mortgage Loans") will be acquired by the Company from GMACCM pursuant to a
mortgage loan purchase agreement, dated as of September 25, 1997 (the "GMACCM
Purchase Agreement"), between the Company and GMACCM (the GMACCM Mortgage
Loans, together with the Xxxxx Mortgage Loans and the GACC Mortgage Loans, the
"Mortgage Loans"). Xxxxx, GACC and GMACCM together constitute the "Mortgage
Loan Sellers" and the Xxxxx Purchase Agreement, the GACC Purchase Agreement and
the GMACCM Purchase Agreement together constitute the "Purchase Agreements."
1. Representations, Warranties and Covenants.
-----------------------------------------
1.1 The Company represents and warrants to, and agrees
with the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
33-94448) on Form S-3 for the registration under the Securities Act of
1933, as amended (the "Act"), of Mortgage Pass-Through Certificates
(issuable in series), including the Certificates, which registration
statement has become effective, and a copy of which, as amended to the
date hereof, has heretofore been delivered to the Representative. 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 September 25, 1997 (the
"Prospectus Supplement"), to the prospectus dated September 15, 1997
(the "Basic Prospectus"), relating to the Certificates and the method
of distribution thereof. Such registration statement (No. 33-94448)
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
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the offering of the Certificates, are hereinafter called the
"Prospectus" and any diskette attached to the Prospectus is
hereinafter called the "Diskette". Any preliminary form of the
Prospectus Supplement which has heretofore been filed pursuant to Rule
424, or prior to the effective date of the Registration Statement
pursuant to Rule 402(a), or 424(a) is hereinafter called a
"Preliminary Prospectus Supplement"; and any diskette attached to the
Preliminary Prospectus Supplement is hereinafter referred to as the
"Preliminary Diskette". As used herein, "Pool Information" means the
compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated September 25, 1997
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 Prospec tus, as of the date of the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the Act and the 1933 Act Regulations; and
the Registration Statement, as of the Effective Date, did not contain
any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus and any Diskette,
as of the date of the Prospectus Supplement, did not, and as of the
Closing Date will not, contain an untrue statement of a material fact
and did not and will not omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that neither the Company nor GMACCM makes any representations
or warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto relating to the information identified by
underlining or other highlighting as shown in Exhibit C (the "Excluded
Information"); and provided, further, that neither the Company nor
GMACCM makes any representations or warranties as to either (i) any
information in any Computational Materials or ABS Term Sheets (each as
hereinafter defined) required to be provided by the Underwriters to
the Company pursuant to Section 4.2, or (ii) as to any information
contained in or omitted from the portions of the Prospectus identified
by underlining or other highlighting as shown in Exhibit D (the
"Underwriter Information"); and provided, further, that neither the
Company nor, except as contemplated by Section 1.2(a), GMACCM makes
any representations or warranties as to any information regarding the
Mortgage Loans or the Mortgage Loan Sellers contained in or omitted
from the portions of the Prospectus Supplement under the headings
"Summary of the Prospectus Supplement--The Mortgage Asset Pool", "Risk
Factors--The Mortgage Loans" and "Description of the Mortgage Asset
Pool" or contained in or omitted from Annex A to the Prospectus
Supplement or contained in or omitted from the Diskette (the "Mortgage
Loan Seller Information"), other than that any Mortgage Loan Seller
Information (exclusive of the information set forth on pages A-7
through A-12, inclusive, of Annex A to the Prospectus Supplement (the
"Loan Detail") and the information on the Diskette) that represents a
restatement or aggregation of the information on the Loan Detail,
accurately reflects the information contained in the Loan Detail; and
provided,
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further, that neither the Company nor GMACCM makes any representations
or warranties with respect to the Diskette to the extent that the
information set forth in the Diskette is different than the
information set forth in the Loan Detail. Neither the Company nor,
except as contemplated by Section 1.2(a), GMACCM makes any
representations or warranties, however, as to the accuracy or
completeness of any information in the Loan Detail. The Company
acknowledges that, except for any Computational Materials and ABS Term
Sheets, the Underwriter Information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus, and the Underwriters confirm
that the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its
properties and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Representatives on behalf of the Underwriters,
constitutes a valid, legal and binding obligation of the Company,
enforceable against the Company in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, (ii) generally principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law, and (iii) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to
provide indemnification for securities laws liabilities.
(e) As of the Closing Date (as defined herein), the
Certificates will conform in all material respects to the description
thereof contained in the Prospectus and the representations and
warranties of the Company in the Pooling and Servicing Agreement will
be true and correct in all material respects.
1.2 GMACCM represents and warrants to and agrees with
you that:
(a) As of the Closing Date, the representations and
warranties of GMACCM in the Pooling and Servicing Agreement and in
Section 4(b) of the GMACCM Purchase Agreement will be true and correct
in all material respects.
(b) This Agreement has been duly authorized,
executed and delivered by GMACCM and, assuming the due authorization,
execution and delivery by the Representatives on behalf of the
Underwriters, constitutes a valid, legal and binding obligation of
GMACCM, enforceable against GMACCM in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general
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principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
for securities laws liabilities.
1.3 Each Representative, on behalf of itself and each
Underwriter, represents and warrants to and agrees with the Company
and GMACCM that:
(a) With respect to each class of Certificates, if
any, to be issued in authorized denominations of $25,000 or less
initial principal balance or evidencing percentage interests in such
class of less than 20%, as the case may be, the fair market value of
all such Certificates sold to any single Person on the date of initial
sale thereof by such Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing
Date, such Underwriter has complied with all of its obligations
hereunder, including, without limitation, Section 4.2, and, with
respect to all Computational Materials and ABS Term Sheets provided by
such Underwriter to the Company pursuant to Section 4.2, if any, such
Computational Materials and ABS Term Sheets are accurate in all
material respects (taking into account the assumptions explicitly set
forth in the Computational Materials or ABS Term Sheets, except to the
extent of any errors therein that are caused by errors in the Pool
Information) and include all assumptions relevant to the preparation
thereof. The Computational Materials and ABS Term Sheets provided by
such Underwriter to the Company constitute a complete set of all
Computational Materials and ABS Term Sheets delivered by such
Underwriter to prospective investors that are required to be filed
with the Commission.
1.4 Each Representative represents and warrants to the Company and
GMACCM that it has been authorized by each of the other Underwriters to execute
and deliver this Agreement on behalf of such Underwriters.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the actual or
notional, as the case may be, principal amounts or percentage interests set
forth in Schedule I hereto in the respective classes of Certificates at a price
for each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Certificates (other than the Class A-1 Certificates) an
amount equal to interest accrued thereon from the Cut-off Date to but not
including the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Certificates
shall be made at the office of Xxxxx, Brown & Xxxxx at 10:00 a.m., New York
City time, on September 30, 1997 or such later date as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company (such date and time of delivery and payment for
the Certificates being herein called the "Closing
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Date"). Delivery of the Certificates (also referred to herein as the "DTC
Registered Certificates") shall be made to the Representatives for the
respective accounts of the Underwriters through DTC, in each case against
payment by the Underwriters to or upon the order of each Mortgage Loan Seller
by wire transfer in immediately available funds of the amount to which such
Mortgage Loan Seller is entitled in accordance with the terms of an allocation
agreement dated the date hereof (the "Allocation Agreement"), to which each
such Mortgage Loan Seller and the Company, among others, are parties. As a
further condition to the delivery of the DTC Registered Certificates, each
Representative shall have furnished by telephonic notice to the applicable
Mortgage Loan Seller the federal reference number for the related wire transfer
to such Mortgage Loan Seller and shall have furnished to the Company each such
federal reference number as soon as practicable after such federal reference
number becomes available.
4. Offering by Underwriters.
------------------------
4.1 It is understood that the Underwriters propose to offer
the Certificates for sale to the public as set forth in the Prospectus, and the
Underwriters agree that all such offers and sales by the Underwriters shall be
made in compliance with all applicable laws and regulations. It is further
understood that the Company, in reliance upon a no-filing letter from the
Attorney General of the State of New York granted pursuant to Policy Statement
105, has not and will not file an offering statement pursuant to Section 352-c
of the General Business Law of the State of New York with respect to the
Certificates. As required by Policy Statement 105, each Underwriter therefore
covenants and agrees with the Company that sales of the Certificates made by
such Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and
provide to prospective investors certain Computational Materials and ABS Term
Sheets (each as defined below) in connection with its offering of the
Certificates, subject to the following conditions to be satisfied by such
Underwriter:
(a) In connection with the use of Computational
Materials, such Underwriter shall comply with all applicable
requirements of the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as well as the PSA
Letter referred to below. In connection with the use of ABS Term
Sheets, such Underwriter shall comply with all applicable requirements
of the No-Action Letter of February 17, 1995 issued by the Commission
to the Public Securities Association (the "PSA Letter" and, together
with the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials"
as used herein shall have the meaning given such term in the No-Action
Letters, but shall include only those Computational Materials that
have been prepared or delivered to
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prospective investors by or at the direction of such Underwriter. For
purposes hereof, "ABS Term Sheets" and "Collateral Term Sheets" as
used herein shall have the meanings given such terms in the PSA Letter
but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by or at
the direction of such Underwriter.
(c) (i) All Computational Materials and ABS Term
Sheets provided to prospective investors that are required to be filed
pursuant to the No- Action Letters shall bear a legend on each page
including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED
SOLELY BY [NAME OF [APPLICABLE] UNDERWRITER].
NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS
TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY
OTHER INFORMATION SUBSEQUENTLY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION."
(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
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the Underwriters. Such Underwriter shall provide to the Company, for
filing on Form 8-K as provided in Section 5.9, copies (in such format
as required by the Company) of all Computational Materials and ABS
Term Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and ABS
Term Sheets described in this subsection (d) must be provided to the
Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this
Agreement. Such Underwriter agrees that it will not provide to any
investor or prospective investor in the Certificates any Computational
Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be
provided to the Company pursuant to this Section 4.2(d) (other than
copies of Computational Materials or ABS Term Sheets previously
submitted to the Company in accordance with this Section 4.2(d) for
filing pursuant to Section 5.9), unless such Computational Materials
or ABS Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor.
(e) All information included in the Computational
Materials and ABS Term Sheets shall be generated based on
substantially the same methodology and assumptions that are used to
generate the information in the Prospectus Supplement as set forth
therein; provided, however, that the Computational Materials and ABS
Term Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational Materials or
ABS Term Sheets delivered by such Underwriter that are required to be
filed were based on assumptions with respect to the Pool that differ
from the final Pool Information in any material respect or on
Certificate structuring terms that were revised in any material
respect prior to the printing of the Prospectus, such Underwriter
shall prepare revised Computational Materials or ABS Term Sheets, as
the case may be, based on the final Pool Information and final
structuring assumptions, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof that indicated orally to such Underwriter they would
purchase all or any portion of the Certificates, and include such
revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to
subsection (d) above.
(f) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined
to contain any material error or omission, provided that, at the
request of the applicable Underwriter, the Company will file
Computational Materials or ABS Term Sheets that contain a material
error or omission if clearly marked "superseded by materials dated
__________" and accompanied by corrected Computational Materials or
ABS Term Sheets that are marked "material previously dated __________,
as corrected". In the event that within the period during which the
Prospectus relating to the Certificates is required to be delivered
under the Act, any Computational Materials or ABS Term Sheets
delivered by an Underwriter are determined, in the reasonable judgment
of the
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Company or such Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials and ABS Term Sheets to all
recipients of the prior versions thereof that either indicated orally
to such Underwriter they would purchase all or any portion of the
Certificates, or actually purchased all or any portion thereof, and
shall deliver copies of such corrected Computational Materials and ABS
Term Sheets (marked, "as corrected") to the Company for filing with
the Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(g) If an Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company pursuant to
subsection (d) above, such Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters, and such Underwriter shall provide the Company with
a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by
such Underwriter to the Company of all Computational Materials and ABS
Term Sheets required to be delivered in accordance with subsection (d)
above, or in the delivery of the accountant's comfort letter in
respect thereof pursuant to Section 5.9, the Company shall have the
right to delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate
actions, in each case as necessary in order to allow the Company to
comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified
therein.
(i) Notwithstanding anything herein to the contrary,
for purposes of this Agreement, neither the Preliminary Diskette nor
the Diskette shall be deemed to be Computational Materials or ABS Term
Sheets.
Each Underwriter represents and warrants that, if and to the
extent it provided any prospective investors with any Computational Materials
or ABS Terms Sheets prior to the date hereof in connection with the offering of
the Certificates, all of the conditions set forth in clauses (a) through (h)
above have been satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the
sixth day after the Closing Date, it shall provide the Company with a
certificate, substantially in the form of Exhibit E attached hereto, setting
forth (i) in the case of each class of Certificates, (a) if less than 10% of
the aggregate actual or notional, as the case may be, principal balance of such
class of Certificates has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit E hereto, or, (b) if 10% or
more of such class of Certificates has been sold to the public as of such date
but no single price is paid for at least 10% of the
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aggregate actual or notional, as the case may be, principal balance of such
class of Certificates, then the weighted average price at which the
Certificates of such class were sold expressed as a percentage of the aggregate
actual or notional, as the case may be, principal balance of such class of
Certificates sold, or (c) the first single price at which at least 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Certificates was sold to the public, (ii) the prepayment assumption
used in pricing each class of Certificates, and (iii) such other information as
to matters of fact as the Company may reasonably request to enable it to comply
with its reporting requirements with respect to each class of Certificates to
the extent such information can in the good faith judgment of the Underwriters
be determined by them.
5. Agreements. The Company agrees with the several
Underwriters that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the Company will
furnish the Representatives with a copy of each such proposed amendment or
supplement.
5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
5.3 If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the Act, any event occurs as a result of
which it is necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply
with the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to the Representatives on behalf of the several
Underwriters, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
5.4 The Company will furnish to the Representatives, without
charge, a copy of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by an underwriter or dealer may be required
by the Act, as many copies of the Prospectus, any documents incorporated by
reference therein and any amendments and supplements thereto as the
Representatives may reasonably request.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, to
deliver to the Representatives the annual statement as to compliance delivered
to the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement
and the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement,
as soon as such statements are furnished to the Company.
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5.6 The Company will endeavor to arrange for the
qualification of the Certificates for sale under the laws of such jurisdictions
as the Representatives may reasonably designate and will maintain such
qualification in effect so long as required for the initial distribution of the
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters shall
be respon sible for paying all costs and expenses incurred by them, including
the fees and disbursements of their counsel, in connection with the purchase
and sale of the Certificates.
5.8 If, during the period after the Closing Date in which a
prospectus relating to the Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise the Representatives of the
issuance of such stop order.
5.9 The Company shall file the Computational Materials and
ABS Term Sheets (if any) provided to it by the Underwriters under Section
4.2(d) hereof with the Commission pursuant to a Current Report on Form 8-K by
10:00 a.m. on the morning the Prospectus is delivered to the Underwriters or,
in the case of any Collateral Term Sheet required to be filed prior to such
date, by 10:00 a.m. on the second business day following the first day on which
such Collateral Term Sheet has been sent to a prospective investor; provided,
however, that prior to such filing of the Computational Materials and ABS Term
Sheets (other than any Collateral Term Sheets that are not based on the Pool
Information) by the Company, each Underwriter must comply with its obligations
pursuant to Section 4.2 and the Company must receive a letter from Deloitte &
Touche L.L.P., certified public accountants, satisfactory in form and substance
to the Company, GMACCM and their respective counsels, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Company, as a result of which they determined that all
information that is included in the Computational Materials and ABS Term Sheets
(if any) provided by the Underwriters to the Company for filing on Form 8-K, as
provided in Section 4.2 and this Section 5.9, is accurate except as to such
matters that are not deemed by the Company to be material. The foregoing letter
shall be at the expense of the Underwriters. The Company shall file any
corrected Computational Materials described in Section 4.2(f) as soon as
practicable following receipt thereof. The Company also will file with the
Commission within fifteen days of the issuance of the Certificates a Current
Report on Form 8-K (for purposes of filing the Pooling and Servicing
Agreement).
6. Conditions to the Obligations of the Underwriters. The
Underwriters' obligation to purchase the Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened by the
Commission; and the Prospectus Supplement
-11-
shall have been filed or transmitted for filing, by means reasonably calculated
to result in a filing with the Commission pursuant to Rule 424(b) under the
Act.
6.2 Since December 31, 1996, there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company or GMACCM.
6.3 The Company shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of the Company to the effect that the signer of such
certificate has examined this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the
Company in this Agreement and in the Pooling and Servicing Agreement
are true and correct in all material respects; and
(b) the Company has, in all material respects,
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date.
6.4 GMACCM shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of GMACCM to the effect that the signer of such certificate
has examined the Pooling and Servicing Agreement and this Agreement and that,
to the best of his or her knowledge after reasonable investigation, the
representations and warranties of GMACCM contained in the Pooling and Servicing
Agreement and in this Agreement are true and correct in all material respects.
6.5 The Underwriters shall have received the opinions of
Xxxxx, Xxxxx & Xxxxx, special counsel for the Company and GMACCM, dated the
Closing Date and substantially to the effect set forth in Exhibits A-1 and A-2,
and the opinion of Xxxxx Xxxxxxx-Xxxx, Esq., general counsel for the Company
and GMACCM, dated the Closing Date and substantially to the effect set forth in
Exhibit B.
6.6 The Underwriters shall have received from Brown & Wood,
LLP, counsel for the Underwriters, an opinion dated the Closing Date in form
and substance reasonably satisfactory to the Underwriters.
6.7 The Underwriters shall have received from Deloitte &
Touche L.L.P., certified public accountants, (a) a letter dated the date hereof
and reasonably satisfactory in form and substance to the Underwriters and their
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by you, as a result of which they determined
that certain information of an accounting, financial or statistical nature set
forth in the Prospectus Supplement under the captions "Description of the
Mortgage Pool", "Description of the Certificates" and "Yield and Maturity
Considerations"
-12-
agrees with the records of the Company and the Mortgage Loan Sellers excluding
any questions of legal interpretation and (b) the letter prepared pursuant to
Section 5.9 hereof.
6.8 The respective classes of Certificates shall have
been rated as set forth on Schedule I.
6.9 The Underwriters shall have received, with respect to the
Trustee, a favorable opinion of counsel, dated the Closing Date, addressing the
valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party and, subject to standard limitations
regarding laws affecting creditors' rights and general principles of equity,
the enforceability of the Pooling and Servicing Agreement against such party.
Such opinion may express its reliance as to factual matters on representations
and warranties made by, and on certificates or other documents furnished by
officers and/or authorized representatives of, parties to this Agreement and
the Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion may be qualified as an opinion only on the laws of each state in
which the writer of the opinion is admitted to practice law and the federal law
of the United States.
6.10 The Underwriters shall have received from Xxxxx, Brown &
Xxxxx, special counsel to the Company, and from Xxxxx Xxxxxxx-Xxxx, Esq.,
general counsel to the Company, reliance letters with respect to any opinions
delivered to the rating agencies identified on Schedule I hereto.
6.11 The Underwriters shall have received from counsel to
each Mortgage Loan Seller, the opinions substantially to the effect set forth
in Exhibit D-3A and D-3B of the respective Purchase Agreements.
The Company will furnish the Underwriters with conformed copies of the above
opinions, certificates, letters and documents as they reasonably request.
7. Indemnification and Contribution.
--------------------------------
7.1 The Company and GMACCM, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"), from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Certificates as
originally filed or in any amendment thereof or other filing incorporated by
reference therein, or in the 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
-13-
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon any information with respect to
which the Underwriters have agreed to indemnify the Company pursuant to Section
7.2; provided that the Company and GMACCM will be liable for any such loss,
claim, damage or liability that arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein relating to the Mortgage Loan Seller Information or Pool Information
only if and to the extent that (i) any such untrue statement is with respect to
information regarding the GMACCM Mortgage Loans contained in the Loan Detail
or, to the extent consistent with Annex A to the Prospectus Supplement, the
Diskette, or (ii) any such untrue statement or alleged untrue statement or
omission or alleged omission is with respect to information regarding any or
all of the Mortgage Loan Sellers or any or all of the Mortgage Loans contained
in the Prospectus Supplement under the headings "Summary of Prospectus
Supplement - The Mortgage Asset Pool", "Risk Factors - The Mortgage Loans"
and/or "Description of the Mortgage Asset Pool" or on Annex A to the Prospectus
Supplement (exclusive of the Loan Detail) and such information represents a
restatement or aggregation of information contained in the Loan Detail, or
(iii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding GMACCM or the GMACCM
Mortgage Loans contained in the Prospectus Supplement under the headings
"Summary of Prospectus Supplement - The Mortgage Asset Pool", "Risk Factors -
The Mortgage Loans" and/or "Description of the Mortgage Asset Pool" or on Annex
A to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; and provided that none of the Company, GMACCM or
any Underwriter will be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein relating to the Excluded Information, except that each of the Company
and GMACCM will be liable to the extent any such loss, claim, damage or
liability is caused by errors in the portion of the Pool Information relating
to the GMACCM Mortgage Loans.
7.2 Each Underwriter agrees, severally and not jointly to
indemnify and hold harmless the Company, GMACCM, their respective directors or
officers and any person who controls the Company or GMACCM within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in clause 7.1 above from the Company and
GMACCM to the Underwriters, but only with respect to (i) the Underwriter
Information relating to such Underwriter or supplied by such Underwriter to the
Company for inclusion in the Prospectus Supplement and (ii) the Computational
Materials and ABS Term Sheets delivered to investors in the Certificates by
such Underwriter, except to the extent of any errors in the Computational
Materials or ABS Term Sheets that are caused by errors in the Pool Information.
In addition, the Underwriter agrees to indemnify and hold harmless the Company,
GMACCM, their respective directors or officers and any person who controls the
Company or GMACCM within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees) caused
by, resulting from, relating to, or based upon any legend regarding original
issue discount on any
-14-
Certificate resulting from incorrect information provided by such Underwriter
in the certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 7.1 or 7.2, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the reasonable fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by the
Representatives, in the case of parties indem nified pursuant to Section 7.1,
and by the Company or GMACCM, in the case of parties indemnified pursuant to
Section 7.2. The indemnifying party may, at its option, at any time upon
written notice to the indemnified party, assume the defense of any proceeding
and may designate counsel reasonably satisfactory to the indemnified party in
connection therewith provided that the counsel so designated would have no
actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. If the indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for
release of the indemnified party in connection with all matters relating to the
proceeding which have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
in such proportion as is appropriate to reflect not only the relative benefits
received by the Company and GMACCM on the one hand and the Underwriters on the
other from the offering of the Certificates but also the relative fault of the
Company and GMACCM on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted
-15-
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company and GMACCM on the
one hand and of any of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or GMACCM or by an
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the consider ations referred to in Section 7.4 above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in this Section 7 shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim except where the
indemnified party is required to bear such expenses pursuant to Section 7.4;
which expenses the indemnifying party shall pay as and when incurred, at the
request of the indemnified party, to the extent that the indemnifying party
believes that it will be ultimately obligated to pay such expenses. In the
event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.6 The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company and GMACCM
in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of an Underwriter or any person controlling an Underwriter
or by or on behalf of the Company or GMACCM and their respective directors or
officers or any person controlling the Company or GMACCM and (iii) acceptance
of and payment for any of the Certificates.
8. Termination. This Agreement shall be subject to termination by
notice given to the Company and GMACCM, if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or GMACCM to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or GMACCM shall
be unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company or GMACCM will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Certificates.
-16-
9. Default by an Underwriter. If either Underwriter shall fail to
purchase and pay for any of the Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default
in the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated to take up and pay for the Certificates that
the defaulting Underwriter agreed but failed to purchase; provided, however,
that in the event that the initial principal amount of Certificates that the
defaulting Underwriter agreed but failed to purchase shall exceed 10% of the
aggregate principal balance of all of the Certificates set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Certificates, and if
such nondefaulting Underwriters do not purchase all of the Certificates, this
Agreement will terminate without liability to the nondefaulting Underwriters,
the Company or GMACCM. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date for the Certificates shall be
postponed for such period, not exceeding seven days, as the nondefaulting
Underwriters shall determine in order that the required changes in the
Registration Statement, the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company, GMACCM, the Underwriters or the officers of any of the Company,
GMACCM and the Underwriters set forth in or made pursuant to this Agreement,
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
made by or on behalf of the Company or GMACCM or any of their respective
officers, directors or controlling persons, and will survive delivery of and
payment for the Certificates.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of the Underwriters, will be
mailed, delivered or telegraphed and confirmed to the each Representative at
the following address: Deutsche Xxxxxx Xxxxxxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx and Xxxxxx Brothers Inc., Three
World Financial Center, New York, New York 10028, Attention Xxxxx Xxxxxxxxx;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxxxx Xxxx, X.X. Box 1015, Horsham, Pennsylvania
19044-8015, Attention: Structured Finance Manager with a copy to the General
Counsel, GMAC Commercial Mortgage Corporation; or, if sent to GMACCM, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxxxxx Xxxx, X.X.
Box 1015, Horsham, Pennsylvania 19044-8015, Attention: Structured Finance
Manager with a copy to the General Counsel, GMAC Commercial Mortgage
Corporation.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and con trolling persons referred to in Section 7
hereof, and their successors and assigns, and no other person will have any
right or obligation hereunder.
-17-
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS
OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any numbe
of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
-18-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, GMACCM and the Underwriters.
Very truly yours,
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
-----------------------------
Title: Director
----------------------------
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------
Title: Managing Director
----------------------------
For itself and the other Underwriters named in Schedule I to the foregoing
Agreement.
-19-
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to
the registration statement No. 33-94448 filed by GMAC Commercial Mortgage
Securities, Inc. on Form S-3 and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Mortgage Pass-Through Certificates, Series 1997-C1, Class X-1, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Underwriters: Deutsche Xxxxxx Xxxxxxxx Inc. ("DMG"), Xxxxxx Brothers
Inc. ("Lehman"), Llama Company, L.P. ("Llama"), Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") and Residential Funding Securities Corporation
("RFSC")
Underwriting Agreement, dated as of September 25, 1997
Cut-off Date: September 1, 1997
Allocations: Subject to the terms and conditions of the Underwriting
Agreement, each Underwriter has agreed to purchase the percentage of each class
of Certificates as set forth below:
ALLOCATION TABLE
UNDERWRITER CLASS X CLASS A-1 CLASS A-2 CLASS A-3 CLASS B CLASS C CLASS D CLASS E CLASS F
----------- ------- --------- --------- --------- ------- ------- ------- ------- -------
Deutsche Xxxxxx Xxxxxxxx Inc... 60% 54% 52% 50% 56% 54% 60% 60% 60%
Xxxxxx Brothers Inc............ 40% 36% 34% 33% 37% 36% 40% 40% 40%
Llama Company, L.P............. 0 3% 3% 3% 7% 10% 0 0 0
Xxxxxx Xxxxxxx & Co.
Incorporated................... 0 7% 11% 7% 0 0 0 0 0
Residential Funding Securities
Corporation.................... 0 0 0 7% 0 0 0 0 0
----- ------- ------- ------- ------- ------- ------- ------ -----
Total........................ 100% 100% 100% 100% 100% 100% 100% 100% 100%
===== ======= ======= ======= ======= ======= ======= ====== ====
Class Initial Class Principal Balance (or in the Initial Purchase Xxxxx'x/Fitch
Designation case of Class X, Class Notional Amount)(1) Pass-Through Rate Price(2) Rating
----------- ------------------------------------------ ----------------- -------- ------
X $1,696,984,278.00 1.6287 10.29490 Aaa/AAA
A-1 $261,582,000.00 6.8300 101.49660 Aaa/AAA
A-2 $227,661,000.00 6.8530 101.49800 Aaa/AAA
A-3 $724,100,000.00 6.8690 101.49970 Aaa/AAA
B $67,879,000.00 6.9180 101.49680 Aa2/AA+
C $50,909,000.00 6.8980 100.99650 A1/AA
D $50,909,000.00 6.9970 100.99830 A2/A+
E $93,334,000.00 7.0850 100.49590 Baa2/BBB
F $25,454,000.00 7.2220 99.99590 Baa3/BBB-
------------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class
Notional Amount, as applicable, of the relevant class of Certificates
to be purchased. In addition, as to each such class of the
Certificates (other than the Class A-1 Certificates), the Underwriters
will pay GMAC Commercial Mortgage Securities, Inc. accrued interest at
the initial Pass-Through Rate therefor from the Cut-off Date to but
not including the Closing Date.
-----------------------------------------------------------------------------
Closing Time, Date and Location: 10:00 a.m. New York City time on
September 30, 1997 at the offices of Xxxxx, Brown & Xxxxx.
-----------------------------------------------------------------------------
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance or notional amount, as the case may be, of $25,000 in the case of the
Class A-1, Class A-2 and Class A-3 Certificates, $50,000 in the case of the
Class B, Class C, Class D, Class E and Class F Certficiates and $1,000,000 the
case of the Class X Certificates, and integral multiples of $1 in excess
thereof.
EXHIBIT A-1
[Xxxxx, Xxxxx & Xxxxx Letterhead]
September 30, 1997
To: Persons listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1
---------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to GMAC Commercial Mortgage Securities, Inc. (the
"Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in connection
with the issuance by the Company of Mortgage Pass-Through Certificates, Series
1997-C1 (the "Certificates"), evidencing undivided interests in a trust fund
(the "Trust Fund") consisting primarily of certain mortgage loans (the
"Mortgage Loans"), pursuant to the Pooling and Servicing Agreement, dated as of
September 1, 1997 (the "Pooling and Servicing Agreement"), among the Company as
depositor, GMACCM as master servicer and special servicer, LaSalle National
Bank as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent").
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 September 25, 1997 the
("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the Company.
Certain of the Mortgage Loans (the "Xxxxx Mortgage Loans") were purchased by
the Company from ContiTrade Services L.L.C. ("Xxxxx") pursuant to the Mortgage
Loan Purchase Agreement, dated as of September 25, 1997 (the "Xxxxx Mortgage
Loan Purchase Agreement"), between Xxxxx 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 September 25, 1997 (the "GACC Mortgage Loan
Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D, Class E and Class F Certificates (collectively, the "Publicly
Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx Brothers
Inc. as representatives (the "Representatives") for themselves and the other
underwriters (the "Underwriters") named in the Underwriting Agreement, dated as
of September 25, 1997 (the "Underwriting Agreement"), among the Company, GMACCM
and the Representatives, and sold the Class G, Class H, Class J, Class K, Class
R-I, Class R-II and R-III Certificates (collectively, the "Privately Offered
Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx Brothers Inc. as
initial purchasers (the "Initial Purchasers") pursuant to the Certificate
Purchase Agreement, dated as of September 25, 1997 (the "Certificate Purchase
Agreement"), among the Company, GMACCM and the Initial Purchasers (the
Certificate Purchase Agreement, the Underwriting Agreement, the GMACCM Mortgage
Loan Purchase Agreement, the Xxxxx Mortgage Loan Purchase Agreement, the GACC
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement,
collectively, the "Agreements"). Capitalized terms not defined herein have the
meanings set forth in the Agreements.
A-1-1
In connection with rendering this opinion letter, we have examined the
Agreements and such other documents as we have deemed necessary. As to matters
of fact, we have examined and relied upon representations of parties to the
Agreements contained therein and, where we have deemed appropriate, separate
additional representations or certifications of parties to the Agreements,
their respective officers and representatives or public officials. In rendering
this opinion letter, we have also assumed (i) the authenticity of all documents
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies, (ii) except as expressly addressed below,
the due authorization, execution and delivery, and the necessary power with
respect thereto, and the enforceability of such documents, (iii) the conformity
to the requirements of the Agreements, of the Mortgage Notes, the Mortgages and
other documents delivered or caused to be delivered to the Trustee by or on
behalf of the Company and (iv) that there is not any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, the corporate law of the
State or Delaware and the federal law of the United States, nor do we express
any opinion concerning the application of the "doing business" laws or the
securities laws of any jurisdiction other than the federal securities laws of
the United States. In rendering the opinion set forth below, as to matters
governed by the laws of the Commonwealth of Pennsylvania or other laws that may
be applicable to the Company and GMACCM, we have relied without independent
investigation on the opinion letter of Xxxxx Xxxxxxx-Xxxx, Esq., general
counsel to the Company and GMACCM, dated the date hereof, a copy of which is
annexed hereto. In rendering the opinion set forth below, as to matters
governed by the laws of the State of Illinois, we have relied without
independent investigation on the opinion letter of Xxxxxx & Xxxxxxx, counsel to
the Trustee, dated the date hereof, a copy of which is annexed hereto. To the
extent that we have relied on the foregoing opinion letters, the opinions set
forth below are subject to the same assumptions, qualifications, exceptions and
other limitations set forth therein. We do not express any opinion on any issue
not expressly addressed below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective
under the Securities Act of 1933, as amended (the
"Act"), and, to the best of our knowledge, no stop
order suspending the effectiveness of the
Registration Statement has been issued or threatened
under Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date,
and the Prospectus, as of the date of the Prospectus
Supplement, other than financial or statistical
information or Computational Materials or ABS Term
Sheets contained or incorporated by reference
therein, complied as to form in all material
respects with the requirements of the Act and the
applicable rules and regulations thereunder.
3. To our knowledge, there are no material contracts,
indentures, or other documents (not including
Computational Materials and ABS Term Sheets) of a
character required to be described or referred to
under either the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the
Pooling and Servicing Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
5. The statements contained in the Prospectus and the
Private Placement Memorandum under the headings
"ERISA Considerations" and "Certain Federal Income
Tax Consequences", to the extent that they
constitute matters of State of New York or federal
law or legal conclusions with respect thereto, while
not purporting to discuss all possible consequences
of investment in the Certificates, are correct in
all material respects with respect to those
consequences or matters that are discussed therein.
A-1-2
6. The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust Fund created by the
Pooling and Servicing Agreement is not required to
be registered under the Investment Company Act of
1940, as amended.
7. No consent, approval, authorization or order of any
federal or State of New York court or governmental
agency or body is required for the consummation by
the Company or GMACCM of the transactions
contemplated by the terms of the Agreements, except
(a) such as have been obtained under the Act and (b)
such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and
the offer and sale of the Underwritten Certificates
by the Underwriters, as to which we express no
opinion.
8. Neither the issuance and the sale of the
Certificates pursuant to the Agreements, nor the
consummation of any other of the transactions
contemplated by, or the fulfillment by the Company
or GMACCM of the terms of the Agreements, will
result in a breach of any term or provision of any
federal or State of New York statute or regulation
or, to the best of our knowledge, conflict with,
result in a breach, violation or acceleration of or
constitute a default under any order of any federal
or State of New York court, regulatory body,
administrative agency or governmental body having
jurisdiction over the Company or GMACCM.
9. Each of the Agreements has been duly and validly
authorized, executed and delivered by the Company
and GMACCM and, upon due authorization, execution
and delivery by all other parties thereto, each of
the Agreements will constitute a valid, legal and
binding agreement of the Company and GMACCM,
enforceable against the Company and GMACCM in
accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium,
reorganization or other similar laws affecting the
rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public
policy considerations underlying the securities
laws, to the extent that such public policy
considerations limit the enforceability of the
provisions of any of the Agreements which purport to
provide indemnification with respect to securities
law violations.
10.
Assuming due authorization, execution and delivery
thereof by all parties thereto, the Pooling and
Servicing Agreement will constitute a valid, legal
and binding agreement of the Trustee, enforceable
against the Trustee in accordance with its terms,
except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws
affecting the rights of creditors, (ii) general
principles of equity, whether enforcement is sought
in a proceeding in equity or at law, and (iii)
public policy considerations underlying the
securities laws, to the extent that such public
policy considerations limit the enforceability of
the provisions of any of the Agreements which
purport to provide indemnification with respect to
securities law violations.
11. As described in the Prospectus and the Private
Placement Memorandum, and assuming compliance with
all the provisions of the Pooling and Servicing
Agreement, for federal income tax purposes, each of
REMIC I, REMIC II and REMIC III will qualify as a
real estate mortgage investment conduit (a "REMIC")
within the meaning of Sections 860A through 860G
(the "REMIC Provisions") of the Internal Revenue
Code of 1986 (the "Code") in effect on the date
hereof, and (i) the Class R-I Certificates will be
the sole class of "residual interests" in REMIC I,
(ii) the Class R- II Certificates will be the sole
class of "residual interests" in REMIC II, (iii) the
REMIC Regular Certificates will be "regular
interests" in REMIC III, and (iv) the Class R-III
Certificates will be the sole class of "residual
interests" in REMIC III.
A-1-3
12. Assuming compliance with the provisions of the
Pooling and Servicing Agreement, for City and State
of New York income and corporation franchise tax
purposes, each of REMIC I, REMIC II and REMIC III
will be classified as a REMIC and not a corporation,
partnership or trust, in conformity with the federal
income tax treatment of each such REMIC.
Accordingly, each of REMIC I, XXXXX XX and REMIC III
will be exempt from all City and State of New York
taxation imposed on its income, franchise or capital
stock, and its assets will not be included in the
calculation of any franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of
this opinion letter may not be furnished to any other person or entity, nor may
any portion of this opinion letter be quoted, circulated or referred to in any
other document.
Very truly yours,
XXXXX, BROWN & XXXXX
By
A-1-4
Annex A
GMAC Commercial Mortgage Securities, Inc.
GAMC Commercial Mortgage Corporation
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers Inc.
Llama Company, X.X.
Xxxxxx Xxxxxxx & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, X.X.
Xxxxx'x Investor's Service, Inc.
Standard & Poor's Ratings Services
A-1-5
EXHIBIT A-2
[Xxxxx, Xxxxx & Xxxxx Letterhead]
September 30, 1997
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1
---------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to GMAC Commercial Mortgage Securities, Inc.
(the "Company") and GMAC Commercial Mortgage Corporation ("GMACCM") in
connection with the issuance by the Company of Mortgage Pass-Through
Certificates, Series 1997-C1 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to the Pooling and Servicing
Agreement, dated as of September 1, 1997 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, LaSalle National Bank as trustee (the "Trustee") and ABN AMRO
Bank N.V., as fiscal agent (the "Fiscal Agent").
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 September 25,
1997 the ("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the
Company. Certain of the Mortgage Loans (the "Xxxxx Mortgage Loans") were
purchased by the Company from ContiTrade Services L.L.C. ("Xxxxx") pursuant to
the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Xxxxx Mortgage Loan Purchase Agreement"), between Xxxxx 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 September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, GMACCM and the Representatives, and sold the Class G, Class H, Class
J, Class K, Class R-I, Class R-II and R-III Certificates (collectively, the
"Privately Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx
Brothers Inc. as initial purchasers (the "Initial Purchasers") pursuant to the
Certificate Purchase Agreement, dated as of September 25, 1997 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and the Initial
Purchasers (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Xxxxx Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement and the Pooling and
Servicing
A-2-1
Agreement, collectively, the "Agreements"). Capitalized terms not defined
herein have the meanings set forth in the Agreements.
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement, the
Prospectus and the Private Placement Memorandum, we are not advising herein
with respect to and do not assume any responsibility herein for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Private Placement Memorandum and make no
representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. In particular and
without limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement,
the Prospectus or the Private Placement Memorandum, or as to any Computational
Materials or ABS Term Sheets, and we have not examined any accounting,
financial or statistical records from which the information and statements
included therein were derived. In addition, with limited exception, we have not
reviewed any of the Mortgage Notes, Mortgages or other documents in the
Mortgage Files or made any inquiry of any originator of any Mortgage Loan other
than the Mortgage Loan Sellers.
We do not act as general counsel to the Company or GMACCM. In our
representation of the Company and GMACCM in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx Brothers Inc. and their respective
counsel in addition to us. During those conferences and telephone
conversations, the contents of the Registration Statement, the Prospectus and
the Private Placement Memorandum and related matters were discussed. With
respect to the accuracy, completeness and fairness of the information relating
to GMACCM, the other Mortgage Loan Sellers, and the Trustee contained in the
Prospectus and the Private Placement Memorandum under the captions "Description
of the Mortgage Asset Pool--The Mortgage Loan Sellers," "Servicing of the
Mortgage Loans--The Servicer" and "Description of the Certificates--The Trustee
and Fiscal Agent", we have relied exclusively on those conferences and
telephone conversations and that no information inconsistent therewith has come
to our attention. In addition, we have examined the Agreements and reviewed
various opinions rendered and certificates delivered in connection with the
issuance of the Certificates. We have not otherwise undertaken any procedures
that were intended or likely to elicit information concerning the accuracy,
completeness or fairness of the statements made in the Registration Statement,
the Prospectus or the Private Placement Memorandum. We have assumed that there
is not and will not be any other agreement that materially supplements or
otherwise modifies the agreements expressed in the Agreements.
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that (i) the Prospectus, as of the date of
the Prospectus Supplement or as of the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) the Private
Placement Memorandum as of the date thereof or hereof, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
This letter is provided for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon. Copies of this letter
may not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
XXXXX, BROWN & XXXXX
By
A-2-2
Annex A
GMAC Commercial Mortgage Securities, Inc.
GAMC Commercial Mortgage Corporation
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers Inc.
Llama Company, X.X.
Xxxxxx Xxxxxxx & Co. Incorporated
Residential Funding Securities Corporation
A-2-3
EXHIBIT B
[GMAC Commercial Mortgage Corporation LETTERHEAD]
September 30, 1997
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1997-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 1997-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 September 1, 1997 (the "Pooling and Servicing
Agreement"), among the Company as depositor, GMACCM as master servicer and
special servicer, LaSalle National Bank as trustee (the "Trustee"), and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent").
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 September 25,
1997 the ("GMACCM Mortgage Loan Purchase Agreement"), between GMACCM and the
Company. Certain of the Mortgage Loans (the "Xxxxx Mortgage Loans") were
purchased by the Company from ContiTrade Services L.L.C. ("Xxxxx") pursuant to
the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"Xxxxx Mortgage Loan Purchase Agreement"), between Xxxxx 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 September 25, 1997 (the "GACC
Mortgage Loan Purchase Agreement"), between GACC and the Company.
The Company sold the Class X, Class A-1, Class A-2, Class A-3, Class
B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx
Brothers Inc. as representatives (the "Representatives") for themselves and the
other underwriters (the "Underwriters") named in the Underwriting Agreement,
dated as of September 25, 1997 (the "Underwriting Agreement"), among the
Company, GMACCM and the Representatives, and sold the Class G, Class H, Class
J, Class K, Class R-I, Class R-II and R-III Certificates (collectively, the
"Privately Offered Certificates") to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxx
Brothers Inc. as initial purchasers (the "Initial Purchasers") pursuant to the
Certificate Purchase Agreement, dated as of September 25, 1997 (the
"Certificate Purchase Agreement"), among the Company, GMACCM and the Initial
Purchasers (the Certificate Purchase Agreement, the Underwriting Agreement, the
GMACCM Mortgage Loan Purchase Agreement, the Xxxxx Mortgage Loan Purchase
Agreement, the GACC Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement, collectively, the "Agreements"). Capitalized terms not
defined herein have the meanings set forth in the Agreements.
B-1
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.
2. GMACCM is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California, and has
the requisite power and authority, corporate or other, to own its properties
and conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
3. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and GMACCM and, upon due authorization,
execution and delivery by the other parties thereto, will constitute the valid,
legal and binding agreements of GMACCM and the Company, enforceable against
GMACCM and the Company in accordance with their terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the rights of
creditors, (ii) general principles of equity, whether enforcement is sought in
a proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of the Agreements
which purport to provide indemnification with respect to securities law
violations.
4. No consent, approval, authorization or order of the
Commonwealth of Pennsylvania, State of Delaware, State of California or
federal court or governmental agency or body is required for the consummation
B-2
by GMACCM or the Company of the transactions contemplated by the terms of the
Agreements, except for those consents, approvals, authorizations or orders
which previously have been obtained.
5. Neither the sale, issuance and delivery of the Certificates as
provided in the Agreements nor the consummation of any other of the
transactions contemplated by, or the fulfillment by the Company or GMACCM of
any other of the terms of, the Agreements, will result in a breach of any term
or provision of the charter or bylaws of GMACCM or the Company or any
Commonwealth of Pennsylvania, State of Delaware, State of California or federal
statute or regulation or conflict with, result in a breach, violation or
acceleration of or constitute a default under the terms of any indenture or
other material agreement or instrument to which GMACCM or the Company is a
party or by which it is bound or any order or regulation of any Commonwealth of
Pennsylvania or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over GMACCM or the Company.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxx, Xxxxx & Xxxxx, is entitled
to rely hereon without my prior written consent. Copies of this opinion letter
may not be furnished to any other person or entity, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document
without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
B-3
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Brothers Inc.
Llama Company, X.X.
Xxxxxx Xxxxxxx & Co. Incorporated
Residential Funding Securities Corporation
LaSalle National Bank
ABN AMRO Bank N.V.
Fitch Investors Service, X.X.
Xxxxx'x Investor's Service, Inc.
Standard & Poor's Ratings Services
B-4
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
EXHIBIT E
September __, 1997
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1
---------------------------------------------------
Pursuant to Section 4.3 of the Underwriting Agreement, dated September
25, 1997 (the "Underwriting Agreement"), among GMAC Commercial Mortgage
Securities, Inc., GMAC Commercial Mortgage Corporation and of Deutsche Xxxxxx
Xxxxxxxx Inc. and Xxxxxx Brothers Inc., each as representative on behalf of
itself and the underwriters set forth therein (the "Underwriters") relating to
the Certificates referenced above, the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates
was 0% CPR.
(b) With respect to each class of Certificates, set forth below is
(i), the first price at which 10% of the aggregate actual or notional, as the
case may be, principal balance of each such class of Certificates was sold to
the public at a single price, if applicable, or (ii) if more than 10% of a
class of Certificates have been sold to the public but no single price is paid
for at least 10% of the aggregate actual or notional, as the case may be,
principal balance of such class of Certificates, then the weighted average
price at which the Certificates of such class were sold expressed as a
percentage of the actual or notional, as the case may be, principal balance of
such class of Certificates, or (iii) if less than 10% of the aggregate actual
or notional, as the case may be, principal balance of a class of Certificates
has been sold to the public, the purchase price for each such class of
Certificates paid by the Underwriters expressed as a percentage of the actual
or notional, as the case may be, principal balance of such class of
Certificates calculated by: (1) estimating the fair market value of each such
class of Certificates as of September 25, 1997; (2) adding such estimated fair
market value to the aggregate purchase price of each class of Certificates
described in clause (i) or (ii) above; (3) dividing each of the fair market
values determined in clause (1) by the sum obtained in clause (2); (4)
multiplying the quotient obtained for each class of Certificates in clause (3)
by the purchase price paid by the Purchaser for all the Certificates; and (5)
for each class of Certificates, dividing the product obtained from such class
of Certificates in clause (4) by the original actual or notional, as the case
may be, principal balance of such class of Certificates:
Class X: __________________
Class A-1: __________________
Class A-2: __________________
Class A-3: __________________
Class B: __________________
Class C: __________________
Class D: __________________
Class E: __________________
Class F: __________________
[* less than 10% has been sold to the public]
E-1
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE XXXXXX XXXXXXXX INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
XXXXXX BROTHERS INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
For itself and the other Underwriters
named in Schedule I to the
Underwriting Agreement
E-2
