Exhibit 1.1
Execution Copy
$500,000,000
IMC HOME EQUITY LOAN TRUST 1998-5
IMC Home Equity Loan Pass-Through Certificates,
Series 1998-5
UNDERWRITING AGREEMENT
August 27, 1998
DEUTSCHE BANK SECURITIES INC.
As representative of the several underwriters
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized the issuance and sale of IMC Home Equity Loan Pass-Through
Certificates, Series 1998-5 consisting of (a) the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates, the Class A-6 Certificates, the Class A-710
Certificates (collectively, the "Class A Certificates"), (b) the Class M-1
Certificates and the Class M-2 Certificates (collectively, the "Mezzanine
Certificates"), (c) the Class B Certificates (collectively with the Mezzanine
Certificates, the "Subordinate Certificates") and (d) a residual class of
Certificates with respect to each REMIC held by the Trust. The Class A
Certificates, the Mezzanine Certificates and the Class B Certificates and are
collectively referred to as the "Offered Certificates".
The Certificates represent an undivided ownership interest in a pool of
fixed rate home equity loans (the "Home Equity Loans") held by IMC Home Equity
Loan Trust 1998-5 (the "Trust"). The Certificates will represent undivided
ownership interests in the Home Equity Loans, which are secured by first and
second lien mortgages or deeds of trust primarily on one- to four-family
residential properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto (the "Underwriters"), and the Underwriters are
purchasing, severally, only the Offered Certificates set forth opposite their
names in Schedule A, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. Deutsche Bank Securities
Inc. (the "Representative") is acting for itself and as representative of the
other Underwriters.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of September 1, 1998 among the
Depositor, IMC Mortgage Company ("IMC"), as seller and as servicer (in such
capacity, the "Servicer" or the "Seller," as the case may be), and The Chase
Manhattan Bank, as trustee (the "Trustee"). The Offered Certificates will
evidence fractional undivided interests in the trust (the "Trust"). The Trust
assets (not all of which will be included in the REMIC elections), will
initially include among other things, a pool of fixed rate Home Equity Loans
(the "Home Equity Loans"), and such amounts as may be held by the Trustee in any
accounts held by the Trustee for the Trust. A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration Statement
(hereinafter defined). As used herein, "Operative Agreements" means this
Agreement and the Pooling and Servicing Agreement.
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, IMC will transfer to the Depositor and
the Depositor will transfer to the Trust all of its right, title and interest in
and to the unpaid principal balances of the Home Equity Loans as of the Cut-Off
Date and the collateral securing each Home Equity Loan.
SECTION 1 Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-48429) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such Registration
Statement have been delivered by the Depositor to the Underwriters. As
used in this Agreement, "Effective Time" means the date and the time as
of which such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time,
including any documents incorporated by reference therein at such time;
and "Basic Prospectus" means such final prospectus dated May 29, 1998;
and "Prospectus Supplement" means the final prospectus supplement
relating to the Offered Certificates, to be filed with the Commission
pursuant to paragraph (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of
the date of the Prospectus and any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and include
any
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document filed under the Securities Exchange Act of 1934 (the "Exchange
Act") after the date of the Prospectus, and incorporated by reference
in the Prospectus and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the
Depositor filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. The Commission has not issued
any order preventing or suspending the use of the Prospectus. There are
no contracts or documents of the Depositor which are required to be
filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so
filed or incorporated by reference therein on or prior to the Effective
Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 4(B) hereof for filing on Form 8-K. The conditions
for use of Form S-3, as set forth in the General Instructions thereto,
have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus
as of its date, and as amended or supplemented as of the Closing Date,
does not and will not contain any untrue statement of a material fact
or 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 that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Depositor in writing by the
Underwriters expressly for use therein. The only information furnished
by the Underwriters or on behalf of the Underwriters for use in
connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation is made as to
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documents deemed to be incorporated by reference in the Prospectus as
the result of filing a Form 8-K at the request of the Underwriters
except to the extent such documents reflect information furnished by
the Depositor to the Underwriters for the purpose of preparing such
documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
any Operative Agreement and to cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the
subject (a) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the
Depositor, (b) asserting the invalidity of any Operative Agreement or
the Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the
transactions contemplated by any Operative Agreement or (d) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, any Operative
Agreement or the Certificates.
G. This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will
have been, duly authorized, executed and delivered by the Depositor,
and this Agreement constitutes, and the Pooling and Servicing Agreement
when executed and delivered as contemplated herein, will constitute,
legal, valid and binding instruments enforceable against the Depositor
in accordance with their respective terms, subject as to enforceability
to (x) applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally, (y) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement limitations of public policy under
applicable securities laws.
H. The execution, delivery and performance of each Operative Agreement
by the Depositor and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Certificates
do not and will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
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under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party, by which the
Depositor is bound or to which any of the properties or assets of the
Depositor or any of its subsidiaries is subject, which breach or
violation would have a material adverse effect on the business,
operations or financial condition of the Depositor, nor will such
actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor.
I. The Depositor has no reason to believe that Xxxxxxx & Xxxxxxx L.L.P.
are not independent public accountants with respect to the Depositor as
required by the Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly
authorized by the Depositor, and assuming the Trustee has been duly
authorized to do so, when executed, authenticated, issued and delivered
by the Trustee in accordance with the Pooling and Servicing Agreement,
the Certificates will be validly issued and outstanding and will be
entitled to the benefits provided by the Pooling and Servicing
Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates and
the sale of the Offered Certificates to the Underwriters, or the
consummation by the Depositor of the other transactions contemplated by
any Operative Agreement except such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Offered Certificates by the Underwriters or as
have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the
Depositor has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which if decided adversely to the Depositor would, singly or
in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Home Equity
Loans conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person any of
its right or title in the Home Equity Loans, in the Pooling and
Servicing Agreement or in the Certificates being issued pursuant
thereto; and (iii) have the power and
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authority to sell its interest in the Home Equity Loans to the Trustee
and to sell the Offered Certificates to the Underwriters. Upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will acquire beneficial ownership of all of the
Depositor's right, title and interest in and to the Home Equity Loans.
Upon delivery to the Underwriters of the Offered Certificates, the
Underwriters will have good title to the Offered Certificates, free of
any Liens.
N. [Reserved]
O. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
P. [Reserved]
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "1940 Act") and
the rules and regulations of the Commission thereunder.
R. At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
S. At the Closing Date, the Offered Certificates shall have been rated
in the respective rating categories by the nationally recognized rating
agencies, as described in the Prospectus Supplement under "Ratings".
T. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of each Operative Agreement, and
the Certificates have been paid or will be paid at or prior to the
Closing Date.
U. At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Pooling and Servicing Agreement will be
true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
an Underwriter or counsel for the Underwriters in connection with an offering of
the Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered
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Certificates and agrees to sell to each Underwriter, and each Underwriter agrees
(except as provided in Sections 10 and 11 hereof) severally and not jointly to
purchase from the Depositor the aggregate initial principal amounts or
percentage interests of the respective Class or Classes of Offered Certificates
set forth opposite their names on Schedule A, at the purchase price or prices
set forth in Schedule A. The Underwriters may offer the Offered Certificates to
certain dealers at such prices less a concession not in excess of the respective
amounts set forth in Schedule A. The Underwriters may allow and such dealers may
reallow a discount to certain dealers not in excess of the respective amounts
set forth in Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Representative and the Depositor
at 10:00 A.M. New York City time on September 10, 1998, or at such other time or
date as shall be agreed upon in writing by the Representative and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Offered Certificates shall be made to the
Representative for the accounts of the applicable Underwriters against payment
of the purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Representative may request in
writing at least two business days prior to the Closing Date. The Offered
Certificates will be made available for examination by the Representative no
later than 2:00 P.M. New York City time on the first business day prior to the
Closing Date.
SECTION 4 Offering by the Underwriters.
A. It is understood that, subject to the terms and conditions hereof,
the Underwriters propose to offer the Offered Certificates for sale to
the public as set forth in the Prospectus.
B. It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term
Sheets in connection with the offering of the Offered Certificates,
subject to the following conditions:
1. In connection with its use of Computational Materials, the
applicable Underwriter shall comply with all applicable requirements of
the No-Action Letter, dated May 20, 1994, issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured
Asset Corporation, as made applicable to other issuers and underwriters
by the Division of Corporation Finance of the Commission in response to
the request of the Public Securities Association ("PSA"), dated May 23,
1994 (collectively, the "Xxxxxx/PSA Letters"), as well as the PSA
Letter referred to below. In connection with its use of ABS Term
Sheets, the applicable Underwriter shall comply with all applicable
requirements of the No-Action Letter dated February 17, 1995, issued by
the Division of Corporation Finance of the Commission to PSA (the "PSA
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Letter" and, together with the Xxxxxx/PSA Letters, the "No-Action
Letters").
2. The term "Computational Materials" as used herein shall
have the meaning given to such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of the
applicable Underwriter. The terms "ABS Term Sheets," "Collateral Term
Sheets" and "Structural Term Sheets" as used herein shall have the
meanings given to such terms in the PSA Letter, but shall include only
those ABS Term Sheets, Collateral Term Sheets or Structural Term Sheets
that have been prepared or delivered to prospective investors by or at
the direction of the applicable Underwriter.
3. All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letter shall bear a legend in a form previously agreed upon
by the Depositor and the applicable Underwriter.
4. Any Computational Materials and ABS Term Sheets are subject
to review by and approval of the Depositor prior to their distribution
to any prospective investors and a copy of such Computational Materials
and ABS Term Sheets as are delivered to prospective investors shall, in
addition to the following delivery requirements, be delivered to the
Depositor simultaneously with delivery to prospective investors.
5. Each applicable Underwriter shall provide to the Depositor,
for filing on Form 8-K as provided in Section 5(E), two printed copies
and one electronic copy on diskette (in such format as required by the
Depositor) of all Computational Materials and ABS Term Sheets
distributed by such Underwriter and that are required to be filed with
the Commission pursuant to the No-Action Letters. Each delivery of
Computational Materials or ABS Term Sheets to the Depositor pursuant to
this paragraph shall be effected by delivering one printed copy and one
electronic copy on diskette of such materials to counsel for the
Depositor on behalf of the Depositor and one printed copy of such
materials to the Depositor. An Underwriter may provide copies of the
foregoing in a consolidated or aggregate form that includes all
information required to be filed by such Underwriter. All Computational
Materials and ABS Term Sheets described in this Section must be
provided to the Depositor no later than 10:00 a.m., New York time, on
the Business Day before the date on which filing thereof is required
pursuant to the terms of this Agreement. Each Underwriter agrees that
it will not provide to any investor or prospective investor of the
Offered Certificates any Computational Materials or ABS Terms Sheets on
or after the day on which Computational Materials and ABS Term Sheets
are required to be provided to the Depositor pursuant to this Section
(other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Depositor in accordance with this Section
for filing pursuant to Section 5(E), unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
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6. All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same
methodolgy 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 specified therein. If
any Computational Materials or ABS Term Sheets that are required to be
filed contain any material error, to the extent the Prospective
Supplement does not specifically correct such error, the Underwriters
shall prepare revised corrected Computational Materials or ABS Term
Sheets, as the case maybe, circulate such revised Computational
Materials or ABS Term Sheets, as the case may be, to all recipients of
the preliminary versions thereof that indicated orally to the
Underwriter that they would purchase all or any portion of the Offered
Certificates and include such revised Computational Materials or ABS
Term Sheets (marked "as revised") in the materials delivered to the
Depositor pursuant to Section 4(B)(5) hereof.
7. The Depositor shall not be obligated to file any
Computational Materials or ABS Term sheets that (i) in the reasonable
determination of the Depositor and the Underwriters and their
respective counsel are not required to be filed pursuant to the
No-Action Letters or (ii) have been determined to contain any material
error; provided that, at the request of an Underwriter, the Depositor
will file Computational Materials or ABS Term Sheets that contain a
material error 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."
C. Each Underwriter represents and warrants and agrees with the
Depositor that, as of the date hereof and the Closing Date, (i) the
Computational Materials and ABS Term Sheets furnished to the Depositor
pursuant to Section 4(B)(5) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to
the Depositor that are required to be filed with the Commission with
respect to the Offered Certificates in accordance with the No-Action
Letters, and such Computational Materials and ABS Term Sheets comply
with the requirements of the No-Action Letters, (ii) the Underwriter
has not and will not represent to potential investors that any
Computational Materials or ABS Term Sheets were prepared or
disseminated on behalf of the Depositor, and (iii) all Computational
Materials and ABS Term Sheets (or underlying materials distributed to
prospective investors on which the Computational Materials and ABS Term
Sheets were based) contained and will contain the legend in the form
previously agreed upon by the Depositor and the Underwriters as
required by Section 4(B)(3) hereof.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from
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any error contained in the Seller-Provided Information provided to the
Underwriters by the Depositor.
D. If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Depositor pursuant to Section 4(B)(4), the
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 Offered Certificates that is required to be filed with
the Commission in accordance with the No-Action Letters.
SECTION 5 Covenants of the Depositor and IMC. The Depositor and, to the
extent the provisions of Section 5 (I) below relate to IMC, IMC each agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the
Underwriters to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and,
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Offered Certificates; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or
suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for
any such purpose; (iv) any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order
or of any order preventing or suspending the use of the Prospectus or
suspending any such qualification, the Depositor promptly shall use its
best efforts to obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment
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thereto (in each case including exhibits); (ii) the Prospectus and any
amended or supplemented Prospectus; and (iii) any document incorporated
by reference in the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the Effective Time in connection with
the offering or sale of the Offered Certificates, and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the
Depositor shall notify the Underwriters and, upon the Underwriters'
request, shall file such document and prepare and furnish without
charge to the Underwriters and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which corrects
such statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with
sales of any of the Offered Certificates at any time nine months or
more after the Effective Time, upon the request of the Underwriters but
at their expense, the Depositor shall prepare and deliver to the
Underwriters as many copies as the Underwriters may reasonably request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission.
E. The Depositor will cause any Computational Materials and ABS Term
Sheets with respect to the Offered Certificates which are delivered by
any Underwriter to the Depositor as provided in Section 4(B)(5) to be
filed with the Commission on a Current Report on Form 8-K at or before
the time of filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act; to cause any ABS Term Sheets with respect to the
Certificates that are delivered to the Depositor as provided in Section
4(B)(5) to be filed with the Commission on one or more Current Reports
on Form 8-K (i) at or before the time of filing of the Prospectus
pursuant to Rule 424(b) of the Rules and Regulations in the case of
Structural Term Sheets, and (ii) within two Business Days of first use
in the case of Collateral Term Sheets. Prior to any such filing of
Computational Materials or ABS Term Sheets (other than any Collateral
Term Sheets that are not based on Home Equity Loan information provided
to the Underwriters by the Depositor) by the Depositor, however, the
applicable Underwriter must comply with its obligations pursuant to
Section 4(B) and the Depositor must receive a letter from independent,
certified public accountants, satisfactory in form and substance to the
Depositor, the Depositor's counsel and the applicable Underwriter, to
the effect that such accountants
-11-
have performed certain specified procedures, all of which have been
agreed to by the Depositor and the applicable Underwriter, 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 such
Underwriter to the Depositor for filing on Form 8-K, as provided in
Section 4(B) and this Section 5(E), is accurate except as to such
matters that are not deemed by the Depositor to be material. The
Depositor shall file any corrected Computational Materials or ABS Term
Sheets described in Section 4(B)(7) as soon as practicable following
receipt thereof.
F. To furnish the Underwriters and counsel for the Underwriters, prior
to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Certificates: (i) amendment to the Registration Statement or supplement
to the Prospectus, or document incorporated by reference in the
Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
G. To make generally available to holders of the Offered Certificates
as soon as practicable, but in any event not later than 90 days after
the close of the period covered thereby, a statement of earnings of the
Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Depositor, Rule 158) and covering a period of at least twelve
consecutive months beginning not later than the first day of the first
fiscal quarter following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States or elsewhere as the Underwriters may designate, and
maintain or cause to be maintained such qualifications in effect for as
long as may be required for the distribution of the Offered
Certificates. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Offered Certificates have been so qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates backed by home equity loans or
other similar securities representing interest in or secured by other
mortgage-related assets originated or owned by the Depositor or IMC
shall be publicly offered, sold nor shall the Depositor or IMC enter
into any contractual arrangements that contemplate the public offering
or sale of such securities for a period of seven (7) business days
following the commencement of the offering of the Offered Certificates
to the public.
J. So long as the Offered Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and
Servicing Agreement, to deliver to the Underwriters as soon as such
statements are furnished to the Owners: (i) the annual statement as to
compliance delivered to the Trustee pursuant to Section 8.16 of the
Pooling and Servicing Agreement; (ii) the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to
Section 8.17 of the Pooling and
-12-
Servicing Agreement; (iii) the monthly servicing report furnished to
the Trustee pursuant to Section 7.08 of the Pooling and Servicing
Agreement; and (iv) the monthly reports furnished to the
Certificateholders pursuant to Section 7.09 of the Pooling and
Servicing Agreement.
K. To apply the net proceeds from the sale of the Offered Certificates
in the manner set forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The obligations
of the Underwriters to purchase the Offered Certificates pursuant to this
Agreement are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor and IMC herein
contained; (ii) the performance by the Depositor of all of its obligations
hereunder; and (iii) the following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Stroock & Stroock & Xxxxx LLP, counsel for the
Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of each Operative Agreement, the
Certificates, the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to the
Underwriters and their counsel, and the Depositor shall have furnished
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
X. Xxxxx & Xxxxxx LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act,
as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement and
the Prospectus.
-13-
2. The Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates (other than the financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with
the applicable requirements of the Securities Act and the
Rules and Regulations.
3. To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a
character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Securities" and "The Pooling and
Servicing Agreement" and in the Prospectus Supplement under
the captions "Description of the Offered Certificates" and
"The Pooling and Servicing Agreement," to the extent such
statements purport to summarize certain provisions of the
Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Prospectus and the
Prospectus Supplement under the captions "ERISA
Considerations" and "Federal Income Tax Consequences" to the
extent that they constitute matters of federal law, provide a
fair and accurate summary of such law or conclusions.
6. The Pooling and Servicing Agreement conforms in all
material respects to the description thereof contained in the
Prospectus and is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended.
7. Neither the Depositor nor the Trust is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
8. Assuming that (a) the Trustee causes each of the Upper-Tier
REMIC and the Lower-Tier REMIC, as the Trustee has covenanted
to do in the Pooling and Servicing Agreement, to be treated as
a "real estate mortgage investment conduit" (the "REMIC"), as
such term is defined in the Internal Revenue Code of 1986, as
amended (the "Code") and (b) the parties to the Pooling and
Servicing Agreement comply with the terms thereof, the Offered
Certificates will be treated as "regular interests" in the
Upper-Tier REMIC and the Class R
-14-
Certificates will constitute the sole class of "residual
interest" in the Upper-Tier REMIC. The Trust is not subject to
tax upon its income or assets by any taxing authority of the
State of New York.
9. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending that would
adversely affect the status of either the Upper-Tier REMIC or
the Lower-Tier REMIC as a REMIC.
10. As a consequence of the qualification of each of the
Upper-Tier REMIC and the Lower-Tier REMIC as a REMIC, the
Offered Certificates will be treated as "regular. . .
interest(s) in a REMIC" under Section 7701(a)(19)(C) of the
Code and "real estate assets" under Section 856(c) of the Code
in the same proportion that the assets in the Trust consist of
qualifying assets under such Sections. In addition, as a
consequence of the qualification of each of the Upper-Tier
REMIC and the Lower-Tier REMIC as a REMIC, interest on the
Offered Certificates will be treated as "interest on
obligations secured by mortgages on real property" under
Section 856(c) of the Code to the extent that such Offered
Certificates are treated as "real estate assets" under Section
856(c) of the Code.
11. The Offered Certificates will, when issued, conform to the
descriptions thereof contained in the Prospectus.
12. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and delivered to the Underwriters and paid
for in accordance with the Underwriting Agreement, will be
entitled to the benefits of the Pooling and Servicing
Agreement.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Underwriters to the effect that
no facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of
the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; or (c) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Depositor prior to the Closing Date
contained, as of the time it became effective or was filed with the
Commission, as the case may be, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were
-15-
made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of Xxxxx & Xxxxxx LLP, special counsel to the
Depositor, addressed to the Depositor and satisfactory to the Rating
Agencies and the Underwriters, with respect to certain matters relating
to the transfer of the Home Equity Loans to the Depositor and from the
Depositor to the Trust, and such counsel shall have consented to the
reliance on such opinion by the Rating Agencies and the Underwriters as
though such opinion had been addressed to each such party.
X. Xxxxxxxx X. Xxxxxx, P.A., special counsel to IMC, in IMC's capacity
as both Seller and Servicer under the Pooling and Servicing Agreement,
and/or Xxxxx & Xxxxxx LLP shall have furnished to the Underwriters
their written opinion or opinions, addressed to the Underwriters and
the Depositor and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. IMC has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Florida and has duly authorized all actions contemplated
hereby.
2. IMC has full power and authority to serve in the capacity
of seller and servicer of the Home Equity Loans as
contemplated in the Pooling and Servicing Agreement and to
transfer the Home Equity Loans to the Depositor as
contemplated in the Pooling and Servicing Agreement.
3. Each Operative Agreement have been duly authorized,
executed and delivered by IMC and, assuming the due
authorization, execution and delivery of such agreements by
the other parties thereto, constitute the legal, valid and
binding agreements of IMC, enforceable against IMC in
accordance with their terms, subject as to enforceability to
(x) bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect
relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion, with respect to
such remedies, of the court before which any proceedings with
respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body having jurisdiction over IMC is required for the
consummation by the Servicer of the transactions contemplated
by the Pooling and Servicing Agreement, except such consents,
approvals, authorizations, registrations and qualifications as
have been obtained.
5. Neither the transfer of the Home Equity Loans by IMC to the
Depositor, nor the execution, delivery or performance by IMC
of the Pooling and Servicing Agreement and the transactions
contemplated thereby (A) conflict with or result
-16-
in a breach of, or constitute a default under, (i) any term or
provision of the formation documents of IMC, as applicable;
(ii) any term or provision of any material agreement, deed of
trust, mortgage loan agreement, contract, instrument or
indenture, or other agreement to which IMC is a party or is
bound or to which any of the property or assets of IMC or any
of its subsidiaries is subject; (iii) to the best of such
firm's knowledge without independent investigation any order,
judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over IMC; or (iv)
any law, rule or regulations applicable to IMC; or (B) to the
best of such firm's knowledge without independent
investigation, results in the creation or imposition of any
lien, charge or encumbrance upon the Trust Estate or upon the
Certificates.
6. The execution of the Pooling and Servicing Agreement is
sufficient to convey all of IMC's right, title and interest in
the Home Equity Loans to the Depositor and following the
consummation of the transaction contemplated by Section 3.05
of the Pooling and Servicing Agreement, the transfer of the
Home Equity Loans by IMC to the Depositor is a sale thereof.
7. [Reserved]
8. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or
investigations pending with respect to which IMC has received
service of process or threatened against IMC before any court,
administrative agency or other tribunal (a) asserting the
validity of the Pooling and Servicing Agreement, the
Underwriting Agreement or the Certificates, (b) seeking to
prevent the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or (c)
which would materially and adversely affect the performance by
IMC of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement or the
Underwriting Agreement.
Such opinion may rely on the opinion of Florida
counsel as to matters governed by Florida law to the extent
such Florida opinion is satisfactory, in form and substance,
to the Underwriters.
X. Xxxxx & Xxxxxx LLP, special counsel for the Depositor, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business so requires.
The Depositor has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged and to enter into and perform its
-17-
obligations under each Operative Agreement and to cause the
Certificates to be issued.
2. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and
adversely affect the properties or assets, taken as a whole,
of the Depositor.
3. Each Operative Agreement has been been duly authorized, and
when duly executed and delivered by the Depositor and,
assuming the due authorization, execution and delivery of such
agreements by the other parties thereto, such agreements
constitute valid and binding obligations, enforceable against
the Depositor in accordance with their respective terms,
subject as to enforceability to (x) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally,
(y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
(z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of each Operative
Agreement by the Depositor, the consummation of the
transactions contemplated hereby and thereby, and the issuance
and delivery of the Certificates do not and will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets
of the Depositor or any of its subsidiaries is subject, which
breach or violation would have a material adverse effect on
the business, operations or financial condition of the
Depositor, nor will such actions result in a violation of the
provisions of the certificate of incorporation or by-laws of
the Depositor or any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material
adverse effect on the business, operations or financial
condition of the Depositor.
5. The direction by the Depositor to the Trustee to execute,
issue, authenticate and deliver the Certificates has been duly
authorized by the Depositor and, assuming that the Trustee has
been duly authorized to do so, when executed, authenticated
and delivered by the Trustee in accordance with the Pooling
and Servicing Agreement, the Certificates will be validly
issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing
-18-
Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body of the United States is required for the issuance of the
Certificates, and the sale of the Offered Certificates to the
Underwriters, or the consummation by the Depositor of the
other transactions contemplated by each Operative Agreement,
except such consents, approvals, authorizations, registrations
or qualifications as may be required State securities or Blue
Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters or as have been
previously obtained.
7. There are not, to the best of such counsel's knowledge,
after reasonable independent investigation, any actions,
proceedings or investigations pending with respect to which
the Depositor has received service of process before or,
threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of
its properties is the subject: (a) which if determined
adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial
condition of the Depositor; (b) asserting the invalidity of
any Operative Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation
by the Depositor of any of the transactions contemplated by
any Operative Agreement; or (d) which might materially and
adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, any
Operative Agreement or the Certificates.
H. The Underwriters shall have received the favorable opinion of
counsel to the Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
1. The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and
Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling
and Servicing Agreement and the performance by the Trustee of
its obligations under the Pooling and Servicing Agreement have
been duly authorized by all necessary corporate action of the
Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the
Trustee.
5. The execution and delivery by the Trustee of the Pooling
and Servicing
-19-
Agreement does not (a) violate the Organization Certificate of
the Trustee or the Bylaws of the Trustee, (b) to such
counsel's knowledge, violate any judgment, decree or order of
any New York or United States federal court or other New York
or United States federal governmental authority by which the
Trustee is bound or (c) assuming the non-existence of any
judgment, decree or order of any court or other governmental
authority that would be violated by such execution and
delivery, violate any New York or United States federal
statute, rule or regulation or require any consent, approval
or authorization of any New York or United States federal
court or other New York or United States federal governmental
authority.
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting as Servicer under the Pooling
and Servicing Agreement as of the date of such opinion, the
Trustee would have the full corporate trust power to perform
the obligations of the Servicer under the Pooling and
Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Trustee before or by any court,
arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to
carry out the transactions contemplated in the Pooling and
Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Offered Certificates, the Registration
Statement, this Agreement, the Prospectus and such other related matters as the
Underwriters may reasonably require.
J. [Reserved]
K. [Reserved]
L. The Depositor and IMC shall each have furnished to the Underwriters
a certificate, dated the Closing Date and signed by the Chairman of the Board,
the President or a Vice President of the Depositor and IMC, respectively,
stating as it relates to each such entity:
1. The representations and warranties made by such entity in
this Agreement and in the Pooling and Servicing Agreement are
true and correct as of the Closing Date; and such entity has
complied with all agreements contained herein which are to
have been complied with on or prior to the Closing Date.
2. The information contained in the Prospectus relating to
such entity and
-20-
the Home Equity Loans is true and accurate in all material
respects and nothing has come to his or her attention that
would lead such officer to believe that the Registration
Statement or the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein not misleading.
3. There has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the
Depositor since November 10, 1994 or the formation documents
of IMC since July 14, 1998 and no such amendment has been
authorized. No event has occurred since June 30, 1998 which
has affected the good standing of the Depositor under the laws
of the State of Delaware or since June 30, 1998 which has
affected the good standing of IMC under the laws of the state
of Florida.
4. There has not occurred any material adverse change, or any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
business or operations of such entity from June 30, 1998.
In addition to the foregoing, the IMC certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H,
L, M, P and Q of this Agreement are made by IMC instead of the
Depositor and are true as to IMC as though such representations and
warranties were fully set forth in such certificate.
M. The Trustee shall have furnished to the Underwriters a certificate
of the Trustee, signed by one or more duly authorized officers of the
Trustee, dated the Closing Date, as to the due authorization, execution
and delivery of the Pooling and Servicing Agreement by the Trustee and
the acceptance by the Trustee of the trusts created thereby and the due
execution, authentication and delivery of the Certificates by the
Trustee thereunder and such other matters as the Representative shall
reasonably request.
N. [Reserved]
O. Each Class of the Offered Certificates shall have been rated in the
respective rating categories and by the nationally recognized
statistical rating organizations (the "Rating Agencies") described in
the Prospectus Supplement under "Ratings."
P. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may
reasonably have requested not less than three full business days prior
to the Closing Date.
Q. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Certificates as herein contemplated and related proceedings
or in order to evidence the accuracy and
-21-
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Depositor in connection with the issuance and
sale of the Certificates as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
R. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; (v) [reserved]; or (v) there shall have occurred
such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets of the United States shall be such) as to make it in
each of the instances set forth in clauses (i), (ii), (iii), (iv) and
(v) herein, in the reasonable judgment of the Underwriters, impractical
or inadvisable to proceed with the public offering or delivery of the
Certificates on the terms and in the manner contemplated in the
Prospectus.
S. The Underwriters shall have received from Coopers & Xxxxxxx L.L.P.,
certified public accountants, a letter dated the date of the Prospectus
Supplement and a letter dated the date hereof and 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 the Underwriters, as a result of which they
determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement on the cover
page thereof and under the captions "Summary of Terms - The Home Equity
Loans", "Risk Factors - Nature of the Collateral; Junior Liens", "Risk
Factors - Risk of Higher Default Rates for Home Equity Loans with
Balloon Payments", "The Seller and Servicer - General", "The Seller and
Servicer - Delinquency, Loan Loss and Foreclosure Information" and "The
Home Equity Loan Pool - General," agrees with the records of the
Depositor excluding any questions of legal interpretation.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
-22-
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of qualifying the Certificates under the securities laws of
the several jurisdictions designated by the Underwriters as provided in Section
5(H) hereof and of preparing, printing and distributing a Blue Sky Memorandum
and a Legal Investment Survey (including related fees and expenses of counsel to
the Underwriters); (f) any fees charged by securities rating services for rating
the Offered Certificates; (g) the costs of the accountant's letters referred to
in Section 6(P) hereof; and (h) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses of
your counsel); provided that, except as provided in this Section 7, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Certificates which
they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriters, and the Underwriters shall pay the cost
of any accountant's letters relating to any Computational Materials and ABS Term
Sheets.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & Xxxxx LLP, counsel for
the Underwriters.
SECTION 8 Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage,
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liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Prospectus,
or any amendment thereof or supplement thereto, or the Registration Statement,
or any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of such Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any controlling person of any of such Underwriter. The
only information furnished by the Underwriters or on behalf of the Underwriters
for use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Depositor and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Depositor or any director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person. The only information furnished by the
Underwriters or on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement or the Prospectus is described in
Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not
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relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section 8 consist of one or
more Underwriters or any of its or their controlling persons, or the Depositor,
if the indemnified parties under this Section 8 consist of the Depositor or any
of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have
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requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
D. [Reserved]
E. Each Underwriter severally agrees, assuming all Seller-Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor, each of the Depositor's officers and directors and
each person who controls the Depositor within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act 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 of a
material fact contained in the Computational Materials and ABS Term Sheets
provided by such Underwriter and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of an Underwriter under this Section 8(E) shall be in addition to
any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(A), (B) or (E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the related Underwriter on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section 8(C), in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Depositor and an Underwriter shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions as set forth on the cover page of the
Prospectus Supplement received by such Underwriter.
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The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by such Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the amount of the underwriting discounts
and commissions received by such Underwriter in connection with its purchase of
the Offered Certificates. 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.
G. For purposes of this Section 8, as to each Underwriter the term
"Computational Materials" and "ABS Term Sheets" means such portion, if any, of
the information delivered to the Depositor by such Underwriter pursuant to
Section 4(B) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by or on behalf of the Seller and Servicer
concerning the assets comprising the Trust.
X. The Seller and Xxxxxxxx agrees to indemnify each indemnified party
referred to in Section 8(A) hereof with respect to Seller-Provided Information
to the same extent as the indemnity granted under such section. The procedures
set forth in Section 8(C) shall be equally applicable to this Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement and the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement is correct, and the parties
hereto acknowledge that such information constitutes the
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only information furnished in writing by or on behalf of any Underwriter for use
in connection with the preparation of the Registration Statement or the
Prospectus.
SECTION 9 Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Offered Certificates to the Underwriters.
SECTION 10 Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the Underwriters have not
completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11 Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section 6(R)
of this Agreement shall occur and be continuing. In the event of any such
termination, the provisions of Section 7, the indemnity agreement set forth in
Section 8, and the provisions of Sections 9 and 15 shall remain
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in effect.
SECTION 12 Obligations of IMC. IMC agrees with the Underwriters, for
the sole and exclusive benefit of each such Underwriter and each person
controlling such Underwriter within the meaning of the Securities Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with such Underwriter, in consideration of and as an inducement to their
agreement to purchase the Offered Certificates from the Depositor, to indemnify
and hold harmless each Underwriter against any failure by the Depositor to
perform its obligations to the Underwriters hereunder, including, without
limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Deutsche Bank Securities Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (Fax:
000-000-0000); and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of IMC Securities, Inc., 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000 Attention: Xxxxxx Xxxxxxxxx
(Fax: (000) 000-0000).
SECTION 14 Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15 Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
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SECTION 17 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the city and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 18 Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION 19 Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
DEUTSCHE BANK SECURITIES INC.
Acting on its own behalf and as
Representative of the several Underwriters
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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SCHEDULE A
Class A-1 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $43,825,250
Bear, Xxxxxxx & Co. Inc. 43,825,250
Nomura Securities International Inc. 43,825,250
PaineWebber Incorporated. 43,825,250
Total $175,301,000
Class A-2 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $15,991,500
Bear, Xxxxxxx & Co. Inc. 15,991,500
Nomura Securities International Inc. 15,991,500
PaineWebber Incorporated. 15,991,500
Total $63,966,000
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Class A-3 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $19,316,750
Bear, Xxxxxxx & Co. Inc. 19,316,750
Nomura Securities International Inc. 19,316,750
PaineWebber Incorporated. 19,316,750
Total $77,267,000
Class A-4 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $13,636,500
Bear, Xxxxxxx & Co. Inc. 13,636,500
Nomura Securities International Inc. 13,636,500
PaineWebber Incorporated. 13,636,500
Total $54,546,000
Class A-5 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $5,980,000
Bear, Xxxxxxx & Co. Inc. 5,980,000
Nomura Securities International Inc. 5,980,000
PaineWebber Incorporated. 5,980,000
Total $23,920,000
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Class A-6 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $8,750,000
Bear, Xxxxxxx & Co. Inc. 8,750,000
Nomura Securities International Inc. 8,750,000
PaineWebber Incorporated. 8,750,000
Total $35,000,000
Class A-7I0 Certificates
Underwriter Percentage Interest
----------- -------------------
Deutsche Bank Securities Inc. 25.00%
Bear, Xxxxxxx & Co. Inc. 25.00%
Nomura Securities International Inc. 25.00%
PaineWebber Incorporated. 25.00%
Total 100.00%
Class M-1 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $7,812,500
Bear, Xxxxxxx & Co. Inc. 7,812,500
Nomura Securities International Inc. 7,812,500
PaineWebber Incorporated. 7,812,500
Total $31,250,000
Class M-2 Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $4,687,500
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Bear, Xxxxxxx & Co. Inc. 4,687,500
Nomura Securities International Inc. 4,687,500
PaineWebber Incorporated. 4,687,500
Total $18,750,000
Class B Certificates
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $5,000,000
Bear, Xxxxxxx & Co. Inc. 5,000,000
Nomura Securities International Inc. 5,000,000
PaineWebber Incorporated. 5,000,000
Total $20,000,000
Purchase Selling Reallowance
Class Price Concession Discount
----- ----- ---------- --------
A-1 99.875000% 0.0750% 0.0525%
A-2 99.847344% 0.0900% 0.0630%
A-3 99.778397% 0.1200% 0.0840%
A-4 99.739203% 0.1500% 0.1050%
A-5 99.658660% 0.1950% 0.1365%
A-6 99.671969% 0.1800% 0.1260%
A-7IO 18.888083% 0.0492% 0.0344%
M-1 99.514870% 0.2700% 0.1890%
M-2 99.338583% 0.3900% 0.2730%
B 99.113300% 0.5100% 0.3570%
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