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EXHIBIT 99.10
EXECUTION COPY
INDEMNIFICATION AGREEMENT
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C2
WHEREAS, GMAC Commercial Mortgage Corporation ("GMACCM") sold certain
mortgage loans (the "Salomon Warehouse Mortgage Loans") to Salomon Brothers
Realty Corp. ("Salomon") pursuant to four Mortgage Loan Purchase Agreements
(collectively, the "Salomon Purchase Agreements"), dated as of June 28, 1999,
September 29, 1999, December 29, 1999 and March 30, 2000, respectively; certain
mortgage loans (the "GSMC Warehouse Mortgage Loans") to Goldman Sachs Mortgage
Company ("GSMC") pursuant to a Mortgage Loan Purchase Agreement dated as of
September 29, 1999 (the "GSMC Purchase Agreement"); and certain mortgage loans
(the "GACC Warehouse Mortgage Loans," and with the Salomon Warehouse Mortgage
Loans and the GSMC Warehouse Mortgage Loans, the "Warehouse Mortgage Loans") to
German America Capital Corporation ("GACC") pursuant to three Mortgage Loan
Purchase Agreements (collectively, the "GACC Purchase Agreements," and with the
Salomon Purchase Agreement and the GSMC Purchase Agreements, the "Purchase
Agreements") dated as of September 29, 1999, March 30, 2000, and June 29, 2000,
respectively;
WHEREAS, the Federal Home Loan Mortgage Corporation issued a
multifamily mortgage participation certificate issued and guaranteed by the
Federal Home Loan Mortgage Corporation (the "Mortgage Certificate") to GMACCM,
which Mortgage Certificate represents an undivided beneficial ownership interest
in a discrete pool of two mortgage loans (the "Underlying Mortgage Loans," and
with the Warehouse Mortgage Loans, the "Mortgage Loans") originated by GMACCM;
WHEREAS, each of Salomon, GSMC, GACC and GMACCM intends to sell the
Salomon Warehouse Mortgage Loans, the GSMC Warehouse Mortgage Loans, the GACC
Warehouse Mortgage Loans and the Mortgage Certificate to GMAC Commercial
Mortgage Securities, Inc. (the "Depositor") and the Depositor intends to
transfer the Warehouse Mortgage Loans and the Mortgage Certificate, together
with other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Depositor, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). The Trust Fund will be created and the Certificates will be
issued pursuant to a pooling and servicing agreement to be dated as of August 1,
1999 (the "Pooling and Servicing Agreement"), among the Depositor, as depositor,
GMACCM, as master servicer and special servicer, and Wells Fargo Bank Minnesota,
N.A., as trustee and securities intermediary (in such capacity, the "Trustee");
WHEREAS, each of Salomon, GSMC and GACC in connection with the
transactions described above, entered into a Supplemental Agreement, each dated
as of August 8, 1999 (each a "Supplemental Agreement," and collectively, the
"Supplemental Agreements") with
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GMACCM, which amended and supplemented certain of the provisions of each of the
Purchase Agreements as they relate to the Warehouse Mortgage Loans in order to
facilitate such transactions;
WHEREAS, each of Salomon, GSMC and GACC will assign to the Depositor
all of its right, title and interest in and to each of the Supplemental
Agreements;
WHEREAS, GMACCM will transfer the Mortgage Certificate to the Depositor
pursuant to the Assignment and Assumption Agreement, dated as of August 17,
2000, between GMACCM and the Depositor;
WHEREAS, as a condition precedent to the consummation of the
transactions described above, it is required that GMACCM, indemnify the
Depositor for any losses relating to any untrue statement or alleged untrue
statement of a material fact, relating to the Mortgage Loans and the Mortgage
Certificate (collectively, the "Mortgage Assets"), contained in the Prospectus
Supplement, the Memorandum, the Diskette, or any Computational Material or ABS
Term Sheets (each as defined herein);
NOW THEREFORE, in consideration of the agreements contained herein, and
other valuable consideration, GMACCM and the Depositor agree as follows:
1. Indemnification and Contribution. (a) GMACCM agrees to indemnify and hold
harmless the Depositor, its officers and directors, and each person, if any, who
controls the Depositor within the meaning of either Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) 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; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Assets contained in the Loan
Detail or, to the extent consistent therewith, the Diskette or contained in the
Term Sheet Diskette, to the extent consistent with the Term Sheet Master Tape;
or (ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding GMACCM or the Mortgage
Assets contained in the Prospectus Supplement or the Memorandum under the
headings "Summary of Series 2000-C2 Transaction -- The Mortgage Assets,"
"--Geographic Concentrations of the Mortgaged Property," "--Property Types,"
"--Prepayment Protection Provided by the Mortgage Loans," "--Payment Terms of
the Mortgage Loans," "Risk
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Factors" and/or "Description of the Mortgage Assets" or contained 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; or (iii) such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon a breach of the
representations and warranties of GMACCM set forth in or made pursuant to
Section 2(a) of each of the Supplement Agreements; provided that the
indemnification provided by this Section 1 shall not apply to the extent that
such untrue statement of a material fact or omission of a material fact
necessary to make the statements made, in light of the circumstances in which
they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which GMACCM may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-74299 filed by the Depositor on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated July 31,
2000, as supplemented by the prospectus supplement dated August 8, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated August 17, 2000, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"). The mortgage
loan and related information contained on the diskette attached to any ABS Term
Sheets or Computational Materials 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 or Computational Materials shall include any Term
Sheet Diskette provided therewith.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 1 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against GMACCM (the "indemnifying party") under this
Section 1, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 1. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to
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the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election to assume the defense of such action and approval by the
indemnified party of counsel, which approval will not be unreasonably withheld,
the indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Depositor and the indemnifying party,
representing all the indemnified parties under Section 1(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 1 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, 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 the relative fault of the indemnified and indemnifying
parties 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 indemnified and indemnifying parties
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 such parties.
(d) The Depositor and GMACCM agree that it would not be just and
equitable if contribution pursuant to Section 1(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 1(c) 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 1 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 this Section 1, 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 will be ultimately obligated to pay such expenses.
If 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 that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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(e) The indemnity and contribution agreements contained in this Section
1 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
2. Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to GMACCM, addressed to GMAC Commercial Mortgage Corporation at 250 Witmer
Road, Horsham, Pennsylvania 19044-8015, Attention: Structured Finance Manager,
facsimile no. (215) 328-1775, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Depositor in writing by GMACCM; and if to the
Depositor, addressed to GMAC Commercial Mortgage Corporation at 250 Witmer Road,
Horsham, Pennsylvania 19044-8015, Attention: Structured Finance Manager,
facsimile no. (215) 328-1775, with a copy to the General Counsel, GMAC
Commercial Mortgage Securities, Inc., or such other address or facsimile number
as may hereafter be furnished to GMACCM.
3. Severability. The invalidity or unenforceability of any one or more
phrases, sentences, paragraphs or Sections in this Agreement shall not affect
the validity or enforceability of the remaining portions of this Agreement or
any part thereof.
4. Definitions. Capitalized terms used and not otherwise defined herein shall
have the meaning set forth in the Underwriting Agreement and the Pooling and
Servicing Agreement.
5. Miscellaneous. THIS INDEMNIFICATION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This
Indemnification Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns and the controlling persons
referred to herein, and no other person shall have any right or obligation
hereunder. Neither this Indemnification Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Indemnification Agreement may be
executed in counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one and the
same instrument. Any person into which GMACCM may be merged, consolidated or
converted, or any corporation resulting from any merger or consolidation to
which GMACCM shall be a party, or any person succeeding to the business of
GMACCM, shall be the successor of GMACCM, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed by their respective officers hereunto duly
authorized, this 8th day of August, 2000.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
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Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
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Name: David Lazarus
Title: Vice President
