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EXHIBIT 1.1
EXECUTION COPY
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
$698,318,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C2
CLASS A-1, CLASS A-2, CLASS B,
CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
August 8, 2000
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
and
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, NY 10019
Ladies and Gentlemen:
GMAC Commercial Mortgage Securities, Inc., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Mortgage Pass-Through Certificates,
Series 2000-C2, that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance") and
initial pass-through rate set forth on Schedule I (such Certificates, the
"Underwritten Certificates"). The Class A-1, Class A-2, Class B, Class C, Class
D and Class E Certificates, together with the Class X, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Residual
Certificates issued therewith (collectively, the "Certificates"), will evidence
the entire interest in the Trust Fund (as defined in the Pooling and Servicing
Agreement referred to below) consisting primarily of a pool (the "Pool") of
multifamily and commercial mortgage loans (the "Mortgage Loans") and a
multifamily mortgage participation certificate issued and guaranteed by the
Federal Home Loan Mortgage Corporation (the "Mortgage Certificate," and the
mortgage loans underlying such Mortgage Certificate, the "Underlying Mortgage
Loans") as described in the Prospectus Supplement (as hereinafter defined) to be
sold by the Company.
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The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of August 1, 2000 among
the Company, as depositor, GMAC Commercial Mortgage Corporation ("GMACCM"), as
master servicer (in such capacity, the "Master Servicer") and special servicer
(in such capacity, the "Special Servicer") and Wells Fargo Bank Minnesota, N.A.,
as trustee (the "Trustee"). The Certificates are described in the Basic
Prospectus and the Prospectus Supplement (each as hereinafter defined) which the
Company has furnished to the Underwriters.
Certain of the Mortgage Loans (the "GACC Warehouse Mortgage Loans")
will be acquired by the Company from German American Capital Corporation
("GACC") pursuant to a mortgage loan purchase agreement, dated as of August 8,
2000 (the "GACC Warehouse Mortgage Loan Purchase Agreement"), between the
Company and GACC. Certain of the Mortgage Loans (the "GSMC Warehouse Mortgage
Loans") will be acquired by the Company from Goldman Sachs Mortgage Company
("GSMC") pursuant to a mortgage loan purchase agreement, dated as of August 8,
2000 (the "GSMC Warehouse Mortgage Loan Purchase Agreement"), between the
Company and GSMC. Certain of the Mortgage Loans (the "Salomon Warehouse Loans")
will be acquired by the Company from Salomon Brothers Realty Corp. ("Salomon")
pursuant to a Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the
"Salomon Warehouse Mortgage Loan Purchase Agreement"), between the Company and
Salomon (the GACC Warehouse Mortgage Loans, the GSMC Warehouse Mortgage Loans
and the Salomon Warehouse Mortgage Loans, the "Warehouse Mortgage Loans").
Certain of the Mortgage Loans (the "GACC Mortgage Loans") will be acquired by
the Company from GACC pursuant to a Mortgage Loan Purchase Agreement, dated as
of August 8, 2000 (the "GACC Mortgage Loan Purchase Agreement"), between the
Company and GACC. Certain of the Mortgage Loans (the "GSMC Mortgage Loans") will
be acquired by the Company from GSMC pursuant to a Mortgage Loan Purchase
Agreement, dated as of August 8, 2000 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GSMC. The Mortgage Certificate will be
acquired by the Company from GMACCM pursuant to an Assignment and Assumption
Agreement, dated as of August 17, 2000 (the "Assignment and Assumption
Agreement"), between the Company and GMACCM. The GACC Warehouse Mortgage Loans,
the GSMC Warehouse Mortgage Loans, the Salomon Warehouse Mortgage Loans, the
GACC Mortgage Loans, the GSMC Mortgage Loans and the Underlying Mortgage Loans
together constitute the "Mortgage Loans." GMACCM, GACC, GSMC and Salomon
together constitute the "Mortgage Loan Sellers" and the GACC Warehouse Mortgage
Loan Purchase Agreement, the GSMC Warehouse Mortgage Loan Purchase Agreement,
the Salomon Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement and the GSMC Mortgage Loan Purchase Agreement together constitute the
"Purchase Agreements." The "Cut-off Date" with respect to each Mortgage Loan
shall be the due date for such Mortgage Loan in August, 2000 and with respect to
the Mortgage Certificate shall be August 5, 2000.
GMACCM entered into an Indemnification Agreement with the Company dated
as of August 8, 2000 (the "Indemnification Agreement"), indemnifying the Company
for certain information in the Prospectus Supplement (as defined herein).
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1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the
Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-74299) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Act"),
of Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy
of which, as amended to the date hereof, has heretofore been delivered to
the Underwriters. The Company proposes to file with the Commission pursuant
to Rule 424(b) under the rules and regulations of the Commission under the
Act (the "1933 Act Regulations") a supplement dated August 8, 2000 (the
"Prospectus Supplement"), to the prospectus dated July 31, 2000 (the "Basic
Prospectus"), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-74299) including exhibits
thereto and any information incorporated therein by reference, as amended
at the date hereof, is hereinafter called the "Registration Statement;" the
Basic Prospectus and the Prospectus Supplement and any information
incorporated therein by reference (including, without limitation, and only
for purposes of clarification, any information filed with the Commission
pursuant to a Current Report on Form 8-K), together with any amendment
thereof or supplement thereto authorized by the Company on or prior to the
Closing Date for use in connection with the offering of the Certificates,
are hereinafter called the "Prospectus" and any diskette attached to the
Prospectus is hereinafter called the "Diskette." Any preliminary form of
the Prospectus Supplement which has heretofore been filed pursuant to Rule
424, or prior to the effective date of the Registration Statement pursuant
to Rule 402(a), or 424(a) is hereinafter called a "Preliminary Prospectus
Supplement;" and any diskette attached to the Preliminary Prospectus
Supplement is hereinafter referred to as the "Preliminary Diskette." The
mortgage loan and related information contained on the diskette attached to
any ABS Term Sheets, Computational Materials or Collateral Term Sheets is
referred to herein as the "Term Sheet Diskette" and the tape provided by
GMACCM that was used to create the Term Sheet Diskette is referred to
herein as the "Term Sheet Master Tape." References herein to ABS Term
Sheets, Computational Materials or Collateral Term Sheets shall include any
Term Sheet Diskette provided therewith. As used herein, "Pool Information"
means the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated August 8, 2000 and
rendered by Deloitte & Touche, L.L.P. (a "hard copy" of which Pool
Information was initialed on behalf of each of GMACCM, GACC, GSMC and the
Company).
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and
the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the Act and the
1933 Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus and any
Diskette, as of
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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 Series 2000-C2 Transaction-The Mortgage
Assets," "-Geographic Concentrations of the Mortgaged Properties,"
"-Property Types," "-Prepayment Protection Provided by the Mortgage Loans,"
"-Payment Terms of the Mortgage Loans," "Risk Factors" and/or "Description
of the Mortgage Assets," 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"), except that the Mortgage Loan Seller
Information (exclusive of the information set forth on pages A-9 through
A-11, inclusive, of Annex A to the Prospectus Supplement (the "Loan
Detail") and the information on the Diskette) that represents a restatement
or aggregation of the information on the Loan Detail, accurately reflects
the information contained in the Loan Detail; and provided, further, that
neither the Company nor GMACCM makes any representations or warranties with
respect to the Term Sheet Diskette or the Diskette to the extent that the
information set forth in the Diskette is different than the information set
forth in the Loan Detail or the information set forth in the Term Sheet
Diskette is different than the information set forth in the Term Sheet
Master Tape. Neither the Company nor, except as contemplated by Section
1.2(a), GMACCM makes any representations or warranties, however, as to the
accuracy or completeness of any information in the Loan Detail. The Company
acknowledges that, except for any Computational Materials and ABS Term
Sheets, the Underwriter Information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus, and the Underwriters confirm that
the Underwriter Information is correct.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power to own its properties and to conduct its
business as presently conducted by it.
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(d) This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of the
Company, enforceable against the Company in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (ii) generally principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (iii)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification for
securities laws liabilities.
(e) As of the Closing Date (as defined herein), the Certificates will
conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in the
Pooling and Servicing Agreement will be true and correct in all material
respects.
1.2 GMACCM represents and warrants to and agrees with you that:
(a) As of the Closing Date, the representations and warranties of
GMACCM in the Pooling and Servicing Agreement, in Section 2(b) of the
supplemental agreements between GMACCM and each of GACC, GSMC and Salomon
will be true and correct in all material respects.
(b) This Agreement has been duly authorized, executed and delivered by
GMACCM and, assuming the due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of GMACCM,
enforceable against GMACCM in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, (ii) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
1.3 Each Underwriter represents and warrants to and agrees with the
Company and GMACCM that:
(a) With respect to each class of Underwritten Certificates, if any,
to be issued in authorized denominations of $25,000 or less initial
principal balance or evidencing percentage interests in such class of less
than 20%, as the case may be, the fair market value of all such
Underwritten Certificates sold to any single Person on the date of initial
sale thereof by such Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder, including, without
limitation, Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by such Underwriter to the Company pursuant to
Section 4.2, if any, such Computational
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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 material to the preparation thereof. The Computational
Materials and ABS Term Sheets provided by such Underwriter to the Company
constitute a complete set of all Computational Materials and ABS Term
Sheets delivered by such Underwriter to prospective investors that are
required to be filed with the Commission.
1.4 Each Underwriter agrees with the Company and GMACCM that it will
cause the Person(s) acquiring the Residual Certificates on the Closing Date, to
execute and deliver, the Transfer Affidavit and Agreement referred to in Section
5.02 of the Pooling and Servicing Agreement, substantially in the form of
Exhibit C-1 to the Pooling and Servicing Agreement.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, the actual or notional, as the
case may be, principal amounts or percentage interests set forth in Schedule I
hereto in the respective classes of Underwritten Certificates at a price for
each such class set forth in Schedule I hereto. There will be added to the
purchase prices of the Underwritten Certificates an amount equal to interest
accrued thereon from the Cut-off Date of each Mortgage Loan to but not including
the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made at the office of Orrick, Herrington & Sutcliffe LLP
at 10:00 a.m., New York City time, on August 17, 2000 or such later date as the
Underwriters shall designate, which date and time may be postponed by agreement
between the Underwriters and the Company (such date and time of delivery and
payment for the Underwritten Certificates being herein called the "Closing
Date"). Delivery of the Underwritten Certificates (also referred to herein as
the "DTC Registered Certificates") shall be made to the respective accounts of
the Underwriters through DTC, in each case against payment by the Underwriters
to or upon the order of each Mortgage Loan Seller by wire transfer in
immediately available funds of the amount that has been agreed to by each such
Mortgage Loan Seller and the Company (net of certain expenses, which will be
paid by the Underwriters on behalf of the Company). As a further condition to
the delivery of the DTC Registered Certificates, each Underwriter shall have
furnished by telephonic notice to the applicable Mortgage Loan Seller the
federal reference number for the related wire transfer to such Mortgage Loan
Seller and shall have furnished to the Company each such federal reference
number as soon as practicable after such federal reference number becomes
available.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public as set forth in the Prospectus,
and the Underwriters agree that all such offers and sales by the Underwriters
shall be made in compliance with all applicable laws and regulations. It is
further understood that the Company, in reliance upon a no-filing letter from
the Attorney General of the State of New York granted pursuant to Policy
Statement
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105, has not and will not file an offering statement pursuant to Section 352-e
of the General Business Law of the State of New York with respect to the
Underwritten Certificates. As required by Policy Statement 105, each Underwriter
therefore covenants and agrees with the Company that sales of the Underwritten
Certificates made by such Underwriter in and from the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets (each
as defined below) in connection with its offering of the Underwritten
Certificates, subject to the following conditions to be satisfied by such
Underwriter:
(a) In connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994 issued by the Commission to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
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 "Kidder/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 Kidder/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by or
at the direction of such Underwriter.
(c) (i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the following
statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE CERTIFICATES NOR
ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS
SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION."
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(ii) In the case of Collateral Term Sheets, such legend shall also
include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [, EXCEPT WITH RESPECT TO
THE INITIAL COLLATERAL TERM SHEET PREPARED BY THE UNDERWRITERS,]
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS
RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [NAME OF
[APPLICABLE] UNDERWRITER]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein. Notwithstanding the
foregoing, subsections (c)(i) and (c)(ii) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form previously approved in writing by the Company.
(d) Such Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Company for use by the Underwriters. Such Underwriter shall provide to
the Company, for filing on Form 8-K as provided in Section 5.9, copies (in
such format as required by the Company) of all Computational Materials and
ABS Term Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term Sheets
described in this subsection (d) must be provided to the Company not later
than 10:00 a.m. New York time one business day before filing thereof is
required pursuant to the terms of this Agreement. Such Underwriter agrees
that it will not provide to any investor or prospective investor in the
Certificates any Computational Materials or ABS Term Sheets on or after the
day on which Computational Materials and ABS Term Sheets are required to be
provided to the Company pursuant to this Section 4.2(d) (other than copies
of Computational Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing pursuant to
Section 5.9), unless such Computational Materials or ABS Term Sheets are
preceded or accompanied by the delivery of a Prospectus to such investor or
prospective investor.
(e) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such
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Underwriter that are required to be filed were based on assumptions with
respect to the Pool that differ from the final Pool Information in any
material respect or on Certificate structuring terms that were revised in
any material respect prior to the printing of the Prospectus, such
Underwriter shall prepare revised Computational Materials or ABS Term
Sheets, as the case may be, based on the final Pool Information and final
structuring assumptions, circulate such revised Computational Materials and
ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to such Underwriter they would purchase all or any portion
of the Certificates, and include such revised Computational Materials and
ABS Term Sheets (marked, "as revised") in the materials delivered to the
Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of the applicable
Underwriter, the Company will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated " and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked "material previously dated ,
as corrected." In the event that within the period during which the
Prospectus relating to the Certificates is required to be delivered under
the Act, any Computational Materials or ABS Term Sheets delivered by an
Underwriter are determined, in the reasonable judgment of the Company or
such Underwriter, to contain a material error or omission, such Underwriter
shall prepare a corrected version of such Computational Materials or ABS
Term Sheets, shall circulate such corrected Computational Materials and ABS
Term Sheets to all recipients of the prior versions thereof that either
indicated orally to such Underwriter they would purchase all or any portion
of the Certificates, or actually purchased all or any portion thereof, and
shall deliver copies of such corrected Computational Materials and ABS Term
Sheets (marked, "as corrected") to the Company for filing with the
Commission in a subsequent Form 8-K submission (subject to the Company's
obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which shall be at the expense
of such Underwriter).
(g) If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Company pursuant to subsection (d) above, such
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and such Underwriter shall provide the Company
with a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by such Underwriter to
the Company of all Computational Materials and ABS Term Sheets required to
be delivered in 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
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Company to comply with its agreement set forth in Section 5.9 to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(i) Each Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the No-Action Letters with respect to the generation
and use of Computational Materials and ABS Term Sheets in connection with
the offering of the Certificates.
(j) Notwithstanding anything herein to the contrary, for purposes of
this Agreement, neither the Preliminary Diskette nor the Diskette shall be
deemed to be Computational Materials or ABS Term Sheets.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the
Certificates, all of the conditions set forth in clauses (a) through (h) above
have been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
4.3 Each Underwriter further agrees that, on or prior to the sixth day
after the Closing Date, it shall provide the Company with a certificate,
substantially in the form of Exhibit E attached hereto, setting forth (i) in the
case of each class of Underwritten Certificates, (a) if less than 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates has been sold to the public as of such date,
the value calculated pursuant to clause (b)(iii) of Exhibit E hereto, or, (b) if
10% or more of such class of Underwritten Certificates has been sold to the
public as of such date but no single price is paid for at least 10% of the
aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates, then the weighted average price at which the
Underwritten Certificates of such class were sold expressed as a percentage of
the aggregate actual or notional, as the case may be, principal balance of such
class of Underwritten Certificates sold, or (c) the first single price at which
at least 10% of the aggregate actual or notional, as the case may be, principal
balance of such class of Underwritten Certificates was sold to the public, (ii)
the prepayment assumption used in pricing each class of Underwritten
Certificates, and (iii) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Underwritten Certificates to the
extent such information can in the good faith judgment of such Underwriter be
determined by it.
5. Agreements. The Company agrees with the several Underwriters that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Underwritten Certificates, the Company will
furnish the Underwriters with a copy of each such proposed amendment or
supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
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5.3 If, during the period after the first date of the public offering
of the Underwritten Certificates in which a prospectus relating to the
Underwritten Certificates is required to be delivered under the Act, any event
occurs as a result of which it is necessary to amend or supplement the
Prospectus, as then amended or supplemented, in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Act or the 1933 Act Regulations, the Company
promptly will prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law.
5.4 The Company will furnish to the Underwriters, without charge, a
copy of the Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as the Underwriters may
reasonably request.
5.5 The Company agrees, so long as the Underwritten Certificates shall
be outstanding, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever first occurs, to
deliver to the Underwriters the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.13 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.14 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Underwritten Certificates for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of the Underwritten
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
5.7 Except as herein provided, the several Underwriters shall be
responsible only for paying all costs and expenses incurred by them, including
the fees and disbursements of their counsel, in connection with the purchase and
sale of the Underwritten Certificates.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Underwritten Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Underwritten Certificates is in effect, the Company will advise the Underwriters
of the issuance of such stop order.
5.9 The Company shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by the Underwriters under Section 4.2(d) hereof
with the Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on
the morning the
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<PAGE>
Prospectus is delivered to the Underwriters or, in the case of any Collateral
Term Sheet required to be filed prior to such date, by 10:00 a.m. on the second
business day following the first day on which such Collateral Term Sheet has
been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, each Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from Deloitte & Touche, L.L.P.,
certified public accountants, satisfactory in form and substance to the Company,
GMACCM and their respective counsels, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Company, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate except as to such matters that are not
deemed by the Company to be material. The Company shall file any corrected
Computational Materials described in Section 4.2(f) as soon as practicable
following receipt thereof. The Company also will file with the Commission within
fifteen days of the issuance of the Certificates a Current Report on Form 8-K
(for purposes of filing the Pooling and Servicing Agreement).
6. Conditions to the Obligations of the Underwriters. The Underwriters'
obligation to purchase the Underwritten Certificates shall be subject to the
following conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since January 1, 2000, 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.
(c) GMACCM shall have delivered to the Underwriters a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of GMACCM to the effect that the signer of such certificate has
examined the Pooling and
12
<PAGE>
Servicing Agreement and this Agreement and that, to the best of his or her
knowledge after reasonable investigation, the representations and
warranties of GMACCM contained in the Pooling and Servicing Agreement and
in this Agreement are true and correct in all material respects.
6.4 The Underwriters shall have received the opinions of Orrick,
Herrington & Sutcliffe LLP, special counsel for the Company and GMACCM, dated
the Closing Date and substantially to the effect set forth in Exhibit A, the
opinion of Maria Corpora-Buck, Esq., general counsel for the Company and GMACCM,
dated the Closing Date and substantially to the effect set forth in Exhibit B
and the opinion of Allen Matkins Leck Gamble & Mallory LLP, special California
counsel for GMACCM, dated the Closing Date that GMACCM is duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of California, and has the requisite power and authority, corporate or
other, to own its properties and conduct its business, as presently conducted by
it.
6.5 The Underwriters shall have received from their counsel an opinion
dated the Closing Date in form and substance reasonably satisfactory to the
Underwriters.
6.6 The Underwriters shall have received from Deloitte & Touche,
L.L.P., certified public accountants, (a) a letter dated the date hereof and
reasonably satisfactory in form and substance to the Underwriters and their
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by you, as a result of which they determined
that certain information of an accounting, financial or statistical nature set
forth in the Prospectus Supplement under the captions "Description of the
Mortgage Assets," "Description of the Certificates" and "Yield and Maturity
Considerations" agrees with the records of the Company and the Mortgage Loan
Sellers excluding any questions of legal interpretation and (b) the letter
prepared pursuant to Section 5.9 hereof.
6.7 The respective classes of Underwritten Certificates shall have
been rated as set forth on Schedule I.
6.8 The Underwriters shall have received, with respect to the Trustee,
a favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to standard limitations regarding laws
affecting creditors' rights and general principles of equity, the enforceability
of the Pooling and Servicing Agreement against such party. Such opinion may
express its reliance as to factual matters on representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of, parties to this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
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<PAGE>
6.9 The Underwriters shall have received from Orrick, Herrington &
Sutcliffe LLP, special counsel to the Company, and from Maria Corpora-Buck,
Esq., general counsel to the Company, reliance letters with respect to any
opinions delivered to the rating agencies identified on Schedule I hereto.
6.10 The Underwriters shall have received from counsel to each
Mortgage Loan Seller, the opinions substantially to the effect set forth in
Section 8(e) of each Mortgage Loan Seller's respective Purchase Agreement (or
Section 8(v) of each of the Purchase Agreements relating to the Warehouse
Mortgage Loans).
6.11 The Company will furnish the Underwriters with conformed copies
of the above opinions, certificates, letters and documents as they reasonably
request.
7. Indemnification and Contribution.
7.1 The Company and GMACCM, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Underwritten Certificates as originally
filed or in any amendment thereof or other filing incorporated by reference
therein, or in the Prospectus or incorporated by reference therein (if used
within the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
in the Diskette, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon any information with respect to which the Underwriters
have agreed to indemnify the Company pursuant to Section 7.2; provided that the
Company and GMACCM will be liable for any such loss, claim, damage or liability
that arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made 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, the Warehouse Mortgage Loans or the Underlying 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 Series 2000-C2 Transaction-The Mortgage Assets," "-Geographic
Concentrations of the Mortgaged Properties," "-Property Types," "-Prepayment
Protection Provided by the Mortgage Loans," "-Payment Terms of the Mortgage
Loans," "Risk Factors" and/or "Description of the Mortgage Assets," 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,
the GMACCM Mortgage Loans, the Warehouse Mortgage
14
<PAGE>
Loans or the Underlying Mortgage Loans contained in the Prospectus Supplement
under the headings "Summary of Series 2000-C2 Transaction-The Mortgage Assets,"
"Risk Factors" and/or "Description of the Mortgage Assets" or on Annex A to the
Prospectus Supplement (exclusive of the Loan Detail), and such information does
not represent a restatement or aggregation of information contained in the Loan
Detail; and provided that none of the Company, GMACCM or any Underwriter will be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Excluded
Information, or any information included in Computational Materials or ABS Term
Sheets that have been superseded by revised Computational Materials or ABS Terms
Sheets (any such information, the "Excluded Pool Information") provided that
such Underwriter has complied with its obligation to circulate revised
Computational Materials and ABS Terms Sheets in accordance with Section 4.2(e)
and has delivered them to the Company no later than one (1) Business Day after
delivery to investors; provided, however, that each of the Company and GMACCM
will be liable to the extent any such loss, claim, damage or liability is caused
by errors in the portion of the Pool Information relating to the GMACCM Mortgage
Loans, the Warehouse Mortgage Loans or the Underlying Mortgage Loans.
7.2 Each Underwriter agrees, severally and not jointly to indemnify
and hold harmless the Company, GMACCM, their respective directors or officers
and any person who controls the Company or GMACCM within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in clause 7.1 above from the Company and GMACCM to the
Underwriters, but only with respect to (i) the Underwriter Information relating
to such Underwriter or supplied by such Underwriter to the Company for inclusion
in the Prospectus Supplement and (ii) the Computational Materials and ABS Term
Sheets delivered to investors in the Certificates by such Underwriter, except to
the extent of any errors in the Computational Materials or ABS Term Sheets or
Term Sheet Diskettes that are caused by errors in the Pool Information or
information contained in the Term Sheet Master Tape; provided, however, that the
indemnification set forth in this Section 7.2 shall not apply to the extent of
any errors in the Computational Materials or ABS Term Sheets that are caused by
Excluded Pool Information provided that such Underwriter has complied with its
obligation to circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 4.2(e) and has delivered them to the Company (or its
counsel) no later than one (1) Business Day after delivery to investors. In
addition, the Underwriter agrees to indemnify and hold harmless the Company,
GMACCM, their respective directors or officers and any person who controls the
Company or GMACCM within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees) caused
by, resulting from, relating to, or based upon any legend regarding original
issue discount on any Underwritten Certificate resulting from incorrect
information provided by such Underwriter in the certificates described in
Section 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 7.1 or 7.2, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
15
<PAGE>
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Underwriters, in the case of parties
indemnified pursuant to Section 7.1, and by the Company or GMACCM, in the case
of parties indemnified pursuant to Section 7.2. The indemnifying party may, at
its option, at any time upon written notice to the indemnified party, assume the
defense of any proceeding and may designate counsel reasonably satisfactory to
the indemnified party in connection therewith, provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company and GMACCM on the one hand and the Underwriters on the
other from the offering of the Underwritten Certificates but also the relative
fault of the Company and GMACCM on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and GMACCM on the one hand and
of any of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or GMACCM or by an Underwriter, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
7.5 The Company, GMACCM and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata
16
<PAGE>
allocation or by any other method of allocation which does not take account of
the considerations referred to in Section 7.4 above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 7.4; which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and GMACCM in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of an Underwriter or any person controlling an Underwriter or by or on
behalf of the Company or GMACCM and their respective directors or officers or
any person controlling the Company or GMACCM and (iii) acceptance of and payment
for any of the Underwritten Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company and GMACCM, if the sale of the Underwritten Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Company or GMACCM to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or GMACCM shall
be unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company or GMACCM will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Underwritten Certificates.
9. Default by an Underwriter. If any Underwriter shall fail to purchase and
pay for any of the Underwritten Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated to take up and pay for the Underwritten
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten Certificates set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to the nondefaulting
Underwriters, the Company or GMACCM. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date for the
Underwritten Certificates shall
17
<PAGE>
be postponed for such period, not exceeding seven days, as the nondefaulting
Underwriters shall determine in order that the required changes in the
Registration Statement, the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, GMACCM, the Underwriters or the officers of any of the Company, GMACCM
and the Underwriters set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or made by or
on behalf of the Company or GMACCM or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for
the Underwritten Certificates.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the each Representative at the
following address: Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004, Attention: Rolf Edwards, and Deutsche Bank Securities Inc., 31 West 52nd
Street, New York, New York 10019, Attention: Gregory B. Hartch; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at 200
Witmer Road, 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 200 Witmer Road, Horsham, Pennsylvania 19044-8015, Attention:
Structured Finance Manager with a copy to the General Counsel, GMAC Commercial
Mortgage Corporation.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURES FOLLOW]
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company, GMACCM
and the Underwriters.
Very truly yours,
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
----------------------------------------
Name: David Lazarus
Title: Vice President
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Donald S. Belanger
------------------------------------
Name: Donald S. Belanger
Title: Director
By: /s/ Gregory B. Hartch
------------------------------------
Name: Gregory B. Hartch
Title: Director
GOLDMAN, SACHS & CO.
By: /s/ Goldman Sachs & Co.
------------------------------------
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-74299 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 2000-C2, Class A-1, Class A-2, Class
B, Class C, Class D and Class E
Underwriters: Goldman, Sachs & Co. ("Goldman") and Deutsche Bank Securities Inc.
("DBS")
Underwriting Agreement, dated August 8, 2000
Cut-off Date: With respect to the Mortgage Loans, the due date of any Mortgage
Loan in August 2000, and with respect to the Mortgage Certificate, August 1,
2000.
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 A-1 CLASS A-2 CLASS B CLASS C CLASS D CLASS E
--------------------------------------------------------------------------------
Goldman 50% 50% 50% 50% 50% 50%
--------------------------------------------------------------------------------
DBS 50% 50% 50% 50% 50% 50%
--------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100%
--------------------------------------------------------------------------------
INITIAL
CLASS INITIAL CLASS PASS-THROUGH PURCHASE RATINGS
DESIGNATION PRINCIPAL BALANCE(1)(2) RATE PRICE(2) FITCH/S&P
----------- ----------------------- ------------ ---------- ---------
A-1 $123,801,000 7.273% 99.997293 AAA/AAA
A-2 $485,535,000 7.455%(3) 100.498610 AAA/AAA
B $30,950,000 7.594%(3) 100.499332 AA/AA
C $28,049,000 7.740%(3) 100.499203 A/A
D $10,639,000 7.836%(3) 100.495915 A-/A-
E $19,344,000 8.488%(4) 100.724739 BBB/BBB
------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance of the
relevant class of Certificates to be purchased hereunder. In addition,
as to each such class of Certificates, the Underwriters will pay GMAC
Commercial Mortgage Securities, Inc. accrued interest at the initial
Pass-Through Rate therefor from the Cut-off Date to but not including
the Closing Date.
(3) Lesser of the specified fixed rate or weighted average net mortgage
rate.
(4) Weighted average net mortgage rate.
Closing Time, Date and Location: 10:00 a.m. New York City time on August 17,
2000 at the offices of Orrick, Herrington & Sutcliffe LLP. Issuance and delivery
of Registered Certificates: Each class of Registered Certificates will be issued
as one or more Certificates registered in the name of Cede & Co., as nominee of
The Depository Trust Company. Beneficial owners will hold interests in such
Certificates through the book-entry facilities of The Depository Trust Company
in minimum denominations of initial principal balance or notional amount, as the
case may be, of $25,000 in the case of the Class A-1 and Class A-2 Certificates,
Class B, Class C, Class D and Class E Certificates.
<PAGE>
EXHIBIT A
Form of Opinion of Orrick, Herrington & Sutcliffe LLP
A-1
<PAGE>
EXHIBIT B
[GMAC Commercial Mortgage Corporation Letterhead]
August 17, 2000
To: Persons Listed on Annex A hereto
GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C2
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 2000-C2 (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 August 1, 2000 (the "Pooling and Servicing Agreement"),
among the Company as depositor, GMACCM as master servicer and special servicer
and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
The Mortgage Certificate was purchased by the Company from GMACCM,
pursuant to, and for the consideration described in, the Assignment and
Assumption Agreement, dated as of August 17, 2000 (the "Assignment and
Assumption Agreement"), between the Company and GMACCM. Certain of the Mortgage
Loans will be purchased by the Company from German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated August 8, 2000 (the "GACC Warehouse Mortgage Loan
Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans will be purchased by the Company from Goldman Sachs Mortgage Company
("GSMC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 8, 2000 (the "GSMC Warehouse Mortgage
Loan Purchase Agreement"), between the Company and GSMC. Certain of the Mortgage
Loans will be purchased by the Company from Salomon Brothers Realty Corp.
("Salomon"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of August 8, 2000 (the "Salomon Warehouse
Mortgage Loan Purchase Agreement"), between the Company and Salomon. Certain of
the Mortgage Loans (the "GACC Mortgage Loans") were purchased by the Company
from GACC ("GACC") pursuant to a Mortgage Loan Purchase Agreement, dated as of
August 8, 2000 (the "GACC Mortgage Loan Purchase Agreement"), between the
Company and GACC. Certain of the Mortgage Loans (the "GSMC Mortgage Loans") were
purchased by the Company from GSMC ("GSMC") pursuant to a Mortgage Loan Purchase
Agreement, dated as of August 8, 2000 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GSMC.
GMACCM entered into an Indemnification Agreement with the Company,
dated as of August 8, 2000, indemnifying the Company for certain information in
the Prospectus Supplement of the Company, dated August 8, 2000. The Company has
sold the Class A-1, Class
B-1
<PAGE>
A-2, Class B, Class C, Class D and Class E Certificates to Deutsche Bank
Securities Inc. and Goldman, Sachs & Co. as the underwriters (in such capacity,
the "Underwriters") named in the Underwriting Agreement, dated August 8, 2000
(the "Underwriting Agreement"), among the Company, the Seller, and the
Underwriters. The Company sold the Class X and Class F Certificates to Deutsche
Bank Securities Inc. and Goldman, Sachs & Co., as initial purchasers, and the
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates to Commercial Asset Trading, Inc. pursuant to two Certificate
Purchase Agreements, each dated as of August 8, 2000 (the "Certificate Purchase
Agreements"). The Company sold the Class R-I, Class R-II and Class R-III
Certificates to Goldman, Sachs & Co. The Certificate Purchase Agreements, the
Underwriting Agreement, the Indemnification Agreement, the Assignment and
Assumption Agreement, the GACC Warehouse Mortgage Loan Purchase Agreement, the
GSMC Warehouse Mortgage Loan Purchase Agreement, the Salomon Warehouse Mortgage
Loan Purchase Agreement, the GACC Mortgage Loan Purchase Agreement, the GSMC
Mortgage Loan Purchase Agreement, and the Pooling and Servicing Agreement are
referred to herein collectively as the "Agreements." Capitalized terms not
defined herein have the meanings set forth in the Agreements.
In connection with rendering this opinion letter, I have examined the
Agreements and such other records and other documents as I have deemed
necessary. I have further assumed that there is not and will not be any other
agreement that materially supplements or otherwise modifies the agreements
expressed in the Agreements. As to matters of fact, I have examined and relied
upon representations of parties contained in the Agreements and, where I have
deemed appropriate, representations and certifications of officers of the
Company, GMACCM, the Trustee, other transaction participants or public
officials. I have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures other than officers of the Company
and GMACCM, the legal capacity of natural persons other than officers of the
Company and GMACCM and the conformity to the originals of all documents
submitted to me as copies. I have assumed that all parties, except for the
Company and GMACCM, had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, I also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and the enforceability of such documents. I have further assumed the
conformity of the Mortgage Loans and related documents to the requirements of
the Agreements.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the Commonwealth of Pennsylvania, the
General Corporation Law of the State of Delaware and the federal law of the
United States, and I do not express any opinion concerning the application of
the "doing business" laws or the securities laws of any jurisdiction other than
the federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
B-2
<PAGE>
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 has the requisite power and authority, corporate or other, to
enter into and perform its obligations under the Agreements.
3. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and GMACCM and, upon due authorization,
execution and delivery by the other parties thereto, will constitute the valid,
legal and binding agreements of GMACCM and the Company, enforceable against
GMACCM and the Company in accordance with their terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the rights of
creditors, (ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of the Agreements
which purport to provide indemnification with respect to securities law
violations.
4. No consent, approval, authorization or order of the Commonwealth of
Pennsylvania, State of Delaware, State of California or federal court or
governmental agency or body is required for the consummation by GMACCM or the
Company of the transactions contemplated by the terms of the Agreements, except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither the sale, issuance and delivery of the Certificates as
provided in the Agreements nor the consummation of any other of the transactions
contemplated by, or the fulfillment by the Company or GMACCM of any other of the
terms of, the Agreements, will result in a breach of any term or provision of
the charter or bylaws of GMACCM or the Company or any Commonwealth of
Pennsylvania, State of Delaware, or federal statute or regulation or conflict
with, result in a breach, violation or acceleration of or constitute a default
under the terms of any indenture or other material agreement or instrument to
which GMACCM or the Company is a party or by which it is bound or any order or
regulation of any Commonwealth of Pennsylvania or federal court, regulatory
body, administrative agency or governmental body having jurisdiction over GMACCM
or the Company.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Orrick, Herrington & Sutcliffe
LLP, is entitled to rely hereon without my prior written consent. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Maria Corpora-Buck
General Counsel
B-3
<PAGE>
Annex A
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
Commercial Asset Trading, Inc.
Wells Fargo Bank Minnesota, N.A.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Fitch, Inc.
Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc.
B-4
<PAGE>
EXHIBIT C
Excluded Information of Prospectus Supplement
(All circled text and tables are excluded)
C-1
<PAGE>
EXHIBIT D
Underwriter Information
(All circled text and tables are excluded)
D-1
<PAGE>
EXHIBIT E
, 2000
-------------------------
GMAC Commercial Mortgage Securities, Inc.
GMAC Commercial Mortgage Corporation
200 Witmer Road
Horsham, Pennsylvania 19044
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C2
Pursuant to Section 4.3 of the Underwriting Agreement, dated August 8, 2000
(the "Underwriting Agreement"), among GMAC Commercial Mortgage Securities, Inc.,
GMAC Commercial Mortgage Corporation, Goldman, Sachs & Co. and Deutsche Bank
Securities Inc., both an underwriter set forth therein (collectively the
"Underwriters") relating to the Certificates referenced above, each of the
undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was [ ]%
CPR.
(b) With respect to each class of Certificates, set forth below is (i), the
first price at which 10% of the aggregate actual or notional, as the case may
be, principal balance of each such class of Certificates was sold to the public
at a single price, if applicable, or (ii) if more than 10% of a class of
Certificates have been sold to the public but no single price is paid for at
least 10% of the aggregate actual or notional, as the case may be, principal
balance of such class of Certificates, then the weighted average price at which
the Certificates of such class were sold expressed as a percentage of the actual
or notional, as the case may be, principal balance of such class of
Certificates, or (iii) if less than 10% of the aggregate actual or notional, as
the case may be, principal balance of a class of Certificates has been sold to
the public, the purchase price for each such class of Certificates paid by the
Underwriters expressed as a percentage of the actual or notional, as the case
may be, principal balance of such class of Certificates calculated by: (1)
estimating the fair market value of each such class of Certificates as of
, 2000; (2) adding such estimated fair market value to the
aggregate purchase price of each class of Certificates described in clause (i)
or (ii) above; (3) dividing each of the fair market values determined in clause
(1) by the sum obtained in clause (2); (4) multiplying the quotient obtained for
each class of Certificates in clause (3) by the purchase price paid by the
Purchaser for all the Certificates; and (5) for each class of Certificates,
dividing the product obtained from such class of Certificates in clause (4) by
the original actual or notional, as the case may be, principal balance of such
class of Certificates:
E-1
<PAGE>
Class A-1:
---------------------------
Class A-2:
---------------------------
Class B:
---------------------------
Class C:
---------------------------
Class D:
---------------------------
Class E:
---------------------------
* less than 10% has been sold to the public
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE BANK SECURITIES INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
-------------------------------------
Name:
Title:
E-2
