1
EXHIBIT 1.1
EXECUTION COPY
$700,000,000
IMC HOME EQUITY LOAN OWNER TRUST 1997-6
Adjustable Rate Home Equity Loan Asset Backed Notes,
Series 1997-6
UNDERWRITING AGREEMENT
October 17, 1997
PAINEWEBBER INCORPORATED
As representative of the several underwriters
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized (i) the creation of IMC Home Equity Loan Owner Trust 1997-6, a
Delaware business trust (the "Issuer"), pursuant to the Owner Trust Agreement,
dated as of October 1, 1997 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company ("Wilmington Trust"), as owner trustee (the "Owner
Trustee") and (ii) the issuance and sale of $700,000,000 aggregate original
principal amount of the Issuer's Adjustable Rate Home Equity Loan Asset Backed
Notes Series 1997-6 (the "Notes"). The Notes will evidence non-recourse
obligations of, and will be issued by, the Issuer pursuant to the terms of the
Indenture, dated as of October 1, 1997 (the "Indenture"), between the Issuer
and The Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee").
Pursuant to the Trust Agreement, the Issuer also will issue certificates
evidencing the residual interest in the Issuer (the "Residual Interest"). The
Residual Interest and the Notes are sometimes collectively referred to as the
"Securities."
The Notes will be secured by a trust estate (the "Trust Estate")
consisting primarily of a pool of adjustable-rate home equity loans secured by
mortgages or deeds of trust creating first and second liens on primarily one-
to four-family residential properties (the "Initial Home Equity Loans") and
such amounts as may be held by the Indenture Trustee in the Pre-Funding Account
(the "Pre-Funding Account"), the Capitalized Interest Account (the "Capitalized
Interest Account") and any other accounts held by the Indenture Trustee for the
Owners. On the Closing Date, $131,360,377 will be deposited in the name of the
Indenture Trustee in the Pre-Funding Account. It is intended that additional
Home Equity Loans satisfying the criteria specified in the Sale and Servicing
Agreement (the "Subsequent Home Equity Loans") will be purchased by the Trust
for inclusion in the Trust Estate from time to time on or before January 16,
1998 from funds on deposit in the Pre-Funding Account. Funds in the
Capitalized Interest Account will be applied by the Indenture Trustee to cover
shortfalls in interest during the
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Funding Period on the Notes attributable to the provisions allowing for
purchase of Subsequent Home Loans after the Cut-Off Date. The Notes will
initially be secured by the sum of (i) the Initial Home Equity Loans in an
amount of $568,639,623 as of the close of business on October 1, 1997 (the
"Cut-Off Date") and (ii) 131,360,377 on deposit in the Pre Funding Account.
The Initial Home Equity Loans will be sold by IMC Mortgage Company, ("IMC") to
the Depositor pursuant to the Loan Sale Agreement, dated as of October 1, 1997
(the "Loan Sale Agreement") between IMC and the Depositor, and by the Depositor
to the Issuer pursuant to the Sale and Servicing Agreement, dated as of October
1, 1997 (the "Sale and Servicing Agreement"), among IMC, as seller (the
"Seller") and as servicer (the "Servicer"), the Depositor, the Indenture
Trustee and the Issuer. The Subsequent Home Equity Loans will be sold by the
Seller to the Depositor and by the Depositor to the Issuer pursuant to the Sale
and Servicing Agreement and one or more separate agreements (each, a
"Subsequent Transfer Agreement."). Pursuant to the Sale and Servicing
Agreement, the Servicer will service the Home Equity Loans on behalf of the
Issuer.
The Notes will have the benefit of a financial guaranty insurance
policy (the "Insurance Policy") issued by Financial Security Assurance, Inc.
(the "Note Insurer"), issued pursuant to the Insurance and Indemnity Agreement,
dated as of October 1, 1997 (the "Insurance Agreement") among the Seller, the
Issuer, the Depositor, and the Note Insurer. The Note Insurer, the Seller, the
Depositor, the Issuer and PaineWebber Incorporated, as representative of the
Underwriters, also will enter into an Indemnification Agreement, dated as of
October 23, 1997 (the "Indemnification Agreement"). This Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Indemnification
Agreement, the Loan Sale Agreement, the Insurance Agreement and each Subsequent
Transfer Agreement are sometimes referred to herein collectively as the
"Agreements". A form of each of the Trust Agreement, the Indenture and the
Sale and Servicing Agreement has been filed as an exhibit to the Registration
Statement (hereinafter defined).
The Notes 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 Agreements.
The Notes are being purchased by the Underwriters named in Schedule A
hereto (the "Underwriters"), and the Underwriters are purchasing, severally,
only the Notes 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. PaineWebber Incorporated (the "Representative") is acting
for itself and as representative of the other Underwriters.
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. 333-31197) has (i)
been prepared by the Depositor in conformity with the requirements of
the Securities Act of 1933 (the "Securities Act"), the Trust Indenture
Act of 1939, as amended (the "Trust Indenture
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Act") and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") under the Securities Act and the Trust Indenture Act,
(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 August 18, 1997; and "Prospectus Supplement"
means the final prospectus supplement relating to the Notes, 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 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, the Rules and Regulations or the Trust Indenture Act 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 8(D) 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, the Trust Indenture 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
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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 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 each Agreement to which it is a party and to cause
the Securities 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 of the Agreements or the Securities, (c) seeking to prevent the
issuance of the Securities or the consummation by the Depositor of any
of the transactions contemplated by the Agreements, or (d) which might
materially and
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adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, the Agreements or the
Securities.
G. This Agreement has been, and each other Agreement to which the
Depositor is a party 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 each
such other 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 and the Indemnification Agreement, limitations of public
policy under applicable securities laws.
H. The execution, delivery and performance of each Agreement to
which the Depositor is a party and the consummation of the
transactions contemplated hereby and thereby, and the issuance and
delivery of the Notes 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, 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 Coopers & 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 Owner Trustee to
execute, issue and deliver and the direction by the Depositor to the
Indenture Trustee to authenticate the Notes has been duly authorized
by the Depositor, and assuming the Owner Trustee and the Indenture
Trustee have been duly authorized to do so, when executed,
authenticated, issued and delivered in accordance with the Indenture,
the Notes will be validly issued and outstanding and will be entitled
to the benefits provided by the Indenture.
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 Securities and
the sale of the Notes to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the
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Agreements 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 Notes 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 Sale and
Servicing Agreement, the Depositor will: (i) have good title to the
Initial 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 Initial Home
Equity Loans, in the Sale and Servicing Agreement or in the Notes
being issued pursuant to the Indenture and (iii) have the power and
authority to sell its interest in the Initial Home Equity Loans to the
Issuer and to sell the Notes to the Underwriters. Upon execution and
delivery of the Sale and Servicing Agreement by the Issuer, the Issuer
will have acquired beneficial ownership of all of the Depositor's
right, title and interest in and to the Initial Home Equity Loans.
Upon execution and delivery of the Indenture by the Issuer and the
Indenture Trustee, the Indenture Trustee will have a valid and
perfected security interest in the Trust Estate free of any other
Liens. Upon delivery to the Underwriters of the Notes, the
Underwriters will have good title to the Notes, free of any Liens.
N. At the time of execution and delivery of any Subsequent
Transfer Agreement, the Depositor will (i) have good title in the
Subsequent Home Equity Loans conveyed by the Seller, free and clear of
any Liens; (ii) not have assigned to any person any of its right or
title in the Subsequent Home Equity Loans, in the Sale and Servicing
Agreement or in the Notes being issues pursuant to the Indenture; and
(iii) have the power and authority to sell the Subsequent Home Equity
Loans to the Issuer. Upon execution and delivery of the Subsequent
Transfer Agreement by the Issuer, the Issuer will have acquired
benefit ownership of all of the Depositor's right, title and interest
in and to the Subsequent Home Equity Loans.
O. As of the Cut-Off Date, each of the Initial Home Equity Loans
will meet the eligibility criteria described in the Prospectus and
will conform to the descriptions thereof contained in the Prospectus.
P. As of any Subsequent Transfer Date, each of the Subsequent
Home Equity Loans will meet the eligibility criteria described in the
Prospectus and will conform to the descriptions thereof contained in
the Prospectus.
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Q. Neither the Depositor nor the Issuer 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 Notes and each Agreement will conform
in all material respects to the descriptions thereof contained in the
Prospectus.
S. At the Closing Date, the Notes 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 Agreement and the
Securities 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 each Agreement to which it is
a party 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 Notes 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 Notes 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 Issuer to issue the Notes 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 of the Notes set forth opposite their names
on Schedule A, at the purchase price or prices set forth in Schedule A. The
Underwriters may offer the Notes to certain dealers at such price less a
concession not in excess of the amount set forth in Schedule A. The
Underwriters may allow and such dealers may reallow a discount to certain
dealers not in excess of the amount set forth in Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the
Notes 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 October 23, 1997, 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 Notes shall be made to the
Representative for the accounts of the applicable Underwriters
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against payment of the purchase price thereof. The Notes 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
Notes 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. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Notes for sale to the public as set forth in the Prospectus.
SECTION 5 Covenants of the Depositor and IMC. The Depositor and, to
the extent the provisions of Section 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 Notes; 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 Notes 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 Notes, 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 Notes 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, the Trust Indenture
Act or requested by the Commission.
E. The Depositor will cause any Computational Materials (as
defined below) with respect to the Offered Certificates which are
delivered by any Underwriter to the Depositor to be filed with the
Commission on a Current Report on Form 8-K (the "Form 8-K --
Computational Materials") at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the 1933 Act; provided,
however, that the Depositor shall have no obligation to file any
materials which, in the reasonable determination of the Depositor
after consultation with such Underwriter, (i) are not required to be
filed pursuant to the Xxxxxx Letters (as defined below) or (ii)
contain any erroneous information or 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; it being
understood, however, that the Depositor shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any
Computational Materials provided by any Underwriter to the Depositor
as aforesaid. For purposes hereof, as to each Underwriter, the term
"Computational Materials" shall mean those materials delivered by an
Underwriter to the Depositor within the meaning of the no-action
letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Peabody Acceptance Corporation I
and certain affiliates and the no-action
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letters dated May 27, 1994 and February 17, 1995, each issued by the
Division of Corporation Finance of the Commission to the Public
Securities Association (all three of such letters, the "Xxxxxx
Letters") for which the filing of such material is a condition of the
relief granted in such letters.
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
Notes: (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 Notes 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 Issuer
(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 Notes 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 Notes. 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 Notes have been
so qualified.
I. Unless the Underwriters shall otherwise have given their
written consent, no pass-through certificates or debt instruments
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 Notes to the public.
J. So long as the Notes shall be outstanding the Depositor shall
cause the Indenture Trustee, pursuant to the Sale 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 Indenture Trustee pursuant to Section 4.16
of the Sale and Servicing Agreement; (ii) the annual statement of a
firm of independent public accountants furnished to the Indenture
Trustee pursuant to Section 4.17 of the Sale and Servicing Agreement;
(iii) the monthly servicing report furnished to the Trustee pursuant
to Section [3.08] of the Sale and Servicing Agreement; and (iv) the
monthly reports furnished to the Noteholders pursuant to Section 3.09
of the Indenture.
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K. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Notes 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 the Agreements, the Issuer,
the Notes, 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 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.
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
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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
thereunder.
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", "Servicing
of Mortgage Loan" and "The Indenture" and in the Prospectus
Supplement under the captions "Description of the Notes" and
"Administration," to the extent such statements purport to
summarize certain provisions of the Notes or of the
Agreements, 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 Agreements conform in all material respects to
the descriptions thereof contained in the Prospectus. The
Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended and complies with the requirements of
the Trust Indenture Act and the applicable Rules and
Regulations.
7. Neither the Depositor nor the Issuer is an
"investment company" or under the "control" of an "investment
company" as such terms are defined in the 1940 Act.
8. For federal income tax purposes, the Notes will be
treated as debt obligations of the Issuer, and the Issuer will
not be characterized as an association (or publicly traded
partnership) taxable as a corporation.
9. The Notes will, when issued, conform to the
descriptions thereof contained in the Prospectus.
10. The Notes, when duly and validly executed,
authenticated and delivered in accordance with the Indenture
and delivered to the Underwriters and paid for in accordance
with the Underwriting Agreement, will be entitled to the
benefits of the Indenture
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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 made, not misleading.
E. The Underwriters shall have received the favorable opinion,
dated the Closing Date, of Xxxxx & Xxxxxx, special counsel to the
Depositor, addressed to the Depositor and satisfactory to Standard &
Poor's, a division of the XxXxxx-Xxxx Companies, Xxxxx'x Investors
Service, Inc. 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 Issuer, and such counsel shall have
consented to the reliance on such opinion by Standard & Poor's, a
division of the XxXxxx-Xxxx Companies, Xxxxx'x Investors Service, Inc.
and the Underwriters as though such opinion had been addressed to each
such party.
X. Xxxxxxxx X. Xxxxxx, P.A., special counsel for IMC, in IMC's
capacity as both Seller and Servicer under the Sale and Servicing
Agreement, shall have furnished to the Underwriters their written
opinion, 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 Sale and Servicing Agreement and to
transfer the Home Equity Loans to the Depositor as
contemplated in the Loan Sale Agreement and has the requisite
power and authority and legal right to own the Residual
Interest.
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3. This Agreement, the Loan Sale Agreement and the Sale
and Servicing 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 Sale and Servicing Agreement,
except such consents, approvals, authorizations, registrations
and qualifications as have been obtained.
5. Neither the transfer of the Initial Home Equity Loans
by IMC to the Depositor, nor the execution, delivery or
performance by IMC of the Loan Sale Agreement and the Sale and
Servicing Agreement and the transactions contemplated thereby
(A) conflict with or result 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 Notes.
6. 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
invalidity of any of the Agreements or the Notes, (b) seeking
to prevent the consummation of any of the transactions
contemplated by the Agreements or (c) which would materially
and adversely affect the performance by IMC of its obligations
under, or the validity or enforceability of, the Sale and
Servicing Agreement or this Agreement.
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X. Xxxxx & Xxxxxx, 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 obligations under
the Agreements and to cause the Securities to be issued.
2. The Depositor has the requisite power and authority
and legal right to own the Certificates.
3. 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.
4. The Agreements to which the Depositor is a party have
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 and the Indemnification Agreement, limitations of
public policy under applicable securities laws.
5. The execution, delivery and performance of the
Agreements to which the Depositor is a party by the Depositor,
the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Notes 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
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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.
6. The directions by the Depositor to the Trustees to
execute, issue, authenticate and deliver the Notes have been
duly authorized by the Depositor and, assuming that the
Trustees have been duly authorized to do so, when executed,
authenticated and delivered by the Indenture Trustee in
accordance with the Indenture, the Notes will be validly
issued and outstanding and will be entitled to the benefits of
the Indenture.
7. 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 Securities, and the sale of the Notes
to the Underwriters, or the consummation by the Depositor of
the other transactions contemplated by the Agreements, 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
Notes by the Underwriters or as have been previously obtained.
8. 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
the Agreements or the Notes; (c) seeking to prevent the
issuance of the Notes or the consummation by the Depositor of
any of the transactions contemplated by the Agreements; or (d)
which might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, the Agreements or the Notes.
9. The execution of the Loan Sale Agreement is
sufficient to convey all of IMC's right, title and interest in
the Initial Home Equity Loans to the Depositor and following
the consummation of the transaction contemplated by Section 2
of the Loan Sale Agreement, the transfer of the Initial Home
Equity Loans by IMC to the Depositor is a sale thereof.
10. Each Subsequent Transfer Agreement at the time of its
execution and delivery will be sufficient to convey all of
IMC's right, title and interest in the
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Subsequent Home Equity Loans to the Depositor and following
the consummation of the transaction contemplated by each
Subsequent Transfer Agreement, the transfer of the Subsequent
Home Equity Loans by IMC to the Depositor will be a sale
thereof.
H. The documents listed in Schedule B hereto shall have been
executed and delivered and the Underwriters shall be entitled to rely
on any such opinions as though the same were addressed to the
Underwriters.
I. The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Owner Trustee, dated the Closing Date,
in form and substance satisfactory to the Underwriters and counsel for
the Underwriters, to the effect that:
1. The Owner Trustee is a Delaware banking corporation
duly incorporated and validly existing under the laws of the
State of Delaware.
2. The Owner Trustee has the full power and authority to
accept the office of owner trustee under the Trust Agreement
and to enter into and perform its obligations under the Trust
Agreement and the transactions contemplated thereby.
3. The execution and delivery of the Trust Agreement by
the Owner Trustee and the performance by the Owner Trustee of
its obligations under the Trust Agreement have been duly
authorized by all necessary action of the Owner Trustee and
the Trust Agreement has been duly executed and delivered by
the Owner Trustee.
4. The Trust Agreement constitutes valid and binding
obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the rights of creditors generally, and
(b) subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
5. The execution and delivery by the Owner Trustee of
the Trust Agreement and the consummation of the transactions
contemplated thereby do not require any consent, approval or
authorization of, or any registration or filing with, any
applicable governmental authority of the State of Delaware
which has not been obtained or done.
6. Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement, nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a
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breach or violation of, or constitute a default under the
Articles of Association, By-Laws or other organizational
documents of the Owner Trustee
J. The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel for the Issuer dated the
Closing Date, in form and substance satisfactory to the Underwriters
and counsel for the Underwriters, to the effect that:
1. The Trust Agreement is the legal, valid and binding
agreement of the Owner Trustee, and the Depositor, enforceable
against the Owner Trustee, and the Depositor in accordance
with its terms subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
2. The Certificate of Trust has been duly filed with the
Secretary of State of the State of Delaware. The Issuer as
been duly formed and is validly existing as a business trust
under the Delaware Business Trust Act.
3. The Issuer has the power and authority under the
Trust Agreement and the Delaware Business Trust Act to
execute, deliver and perform its obligations under the Trust
Agreement, the Indenture, the Sale and Servicing Agreement,
the Notes and the Residual Interests and to issue the
Securities.
4. The Issuer has duly authorized and executed the Trust
Agreement, the Indenture, the Sale and Servicing Agreement,
the Notes and the Residual Interests.
5. The Trust has the power under the Trust Agreement and
the Delaware Business Trust Act to pledge the Trust Estate to
the Indenture Trustee as security for the Notes.
6. The Notes have been executed, authorized and
delivered by the Owner Trustee upon the order of the Depositor
in accordance with the Trust Agreement and the Indenture.
7. To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the
"Delaware UCC") is applicable (without regard to conflicts of
laws principles), and assuming that the security interest
created by the Indenture in the Collateral has been duly
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created and has attached, upon the filing of a UCC-1 financing
statement with the Secretary of State of the State of
Delaware, the Indenture Trustee will have a perfected security
interest in such Collateral and the proceeds thereof; and such
security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding
purchase money security interests under Section 9-312 of the
Delaware UCC and temporarily perfected security interests in
proceeds under Section 9-306 of the Delaware UCC.
8. No re-filing or other action is necessary under the
Delaware UCC in the State of Delaware in order to maintain the
perfection of the security interest referenced above except
for the filing of continuation statements at five-year
intervals.
9. Under Section 3805(b) of the Delaware Business Trust
Act, no creditor of any holder of the Residual Interest shall
have any right to obtain possession of, or otherwise exercise
legal or equitable remedies with respect to, the property of
the Trust except in accordance with the terms of the Trust
Agreement subject to (i) applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent
conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
10. Under Section 3805(c) of the Delaware Business Trust
Act, and assuming that the Sale and Servicing Agreement
conveys good title to the Home Equity Loans to the Issuer as a
true sale and not as a security arrangement, the Issuer,
rather than the holders of the Residual Interest, is the owner
of the Home Equity Loans subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
11. The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Issuer, of the
Indenture and the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any registration
or filing with, any governmental authority of the State of
Delaware, except for the filing of the Certificate of Trust
with the Xxxxxxxxx xx Xxxxx.
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00. Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf
of the Trust, the transactions contemplated by the Trust
Agreement, Indenture and the Sale and Servicing Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will
conflict with or result in a breach or violation of any law of
the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and the
laws of the State of Delaware.
K. The Underwriters shall have received the favorable opinion
dated the Closing Date, from in-house counsel to the Note Insurer, in
form and scope satisfactory to counsel for the Underwriters,
substantially to the effect that:
1. The Note Insurer is a monoline insurance company duly
incorporated, validly existing, and in good standing under the
laws of the State of New York. The Note Insurer is validly
licensed and authorized to issue the Insurance Policy and
perform its obligations under the Insurance Agreement in
accordance with the terms thereof, under the laws of the State
of New York.
2. The Note Insurer has the corporate power to execute
and deliver, and to take all action required of it under the
Insurance Agreement and the Insurance Policy.
3. The execution, delivery and performance by the Note
Insurer of the Insurance Policy, the Indemnification Agreement
and Insurance Agreement does not require the consent or
approval of, the giving of notice to, the prior registration
with, or the taking of any other action in respect of any
state or other governmental agency or authority which has not
previously been obtained or effected.
4. The Insurance Policy, the Indemnification Agreement
and Insurance Agreement have been duly authorized, executed
and delivered by the Note Insurer and constitute the legal,
valid and binding agreement of the Note Insurer, enforceable
against the Note Insurer in accordance with its terms subject,
as to enforcement, to (x) bankruptcy, reorganization,
insolvency, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally,
including, without limitation, laws relating to fraudulent
transfers or conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law), as
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such laws may be applied in any such proceeding with respect
to the Note Insurer and (y) the qualification that the remedy
of specific performance and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceedings with respect thereto
may be brought.
5. To the extent the Insurance Policy constitutes a
security within the meaning of Section 2(1) of the Securities
Act, it is a security that is exempt from the registration
requirements of the Act.
6. The information set forth under the caption, "The
Note Insurer" in the Prospectus Supplement, insofar as such
information constitutes a description of the Insurance Policy,
accurately summarizes such Insurance Policy.
L. The Underwriters shall have received the favorable opinion of
counsel to the Indenture 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 Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York.
2. The Indenture Trustee has the full corporate trust
power to execute, deliver and perform its obligations under
the Indenture
3. The execution and delivery by the Indenture Trustee
of the Indenture and the performance by the Indenture Trustee
of its obligations under the Indenture have been duly
authorized by all necessary corporate action of the Indenture
Trustee.
4. The Indenture is a valid and legally binding
obligation of the Indenture Trustee enforceable against the
Trustee.
5. The execution and delivery by the Indenture Trustee
of the Indenture does not (a) violate the Organization
Certificate of the Trustee or the Bylaws of the Indenture
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 Indenture 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 Notes have been duly authenticated and delivered
by the Indenture
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Trustee.
7. If the Indenture Trustee were acting as Servicer
under Sale and Servicing Agreement as of the date of such
opinion, the Indenture Trustee would have the full corporate
trust power to perform the obligations of the Servicer under
the Sale 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 Indenture Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Indenture
Trustee, would materially and adversely affect the ability of
the Indenture Trustee to carry out the transactions
contemplated in the Indenture.
M. 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 Notes, the
Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriters may reasonably require.
N. 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 the Agreements to which it is a party 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 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 October 19, 1990 and no such amendment has been
authorized. No event has occurred since October 1, 1997 which
has affected the good standing of such entities under the laws
of the State of Delaware.
4. There has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the condition, financial or
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otherwise, or in the earnings, business or operations of such
entity from September 30, 1997.
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.
O. The Indenture Trustee shall have furnished to the Underwriters
a certificate of the Indenture Trustee, signed by one or more duly
authorized officers of the Indenture Trustee, dated the Closing Date,
as to the due authorization, execution and delivery of the Indenture
by the Indenture Trustee and the acceptance by the Indenture Trustee
of the trusts created thereby and the due authentication and delivery
of the Notes by the Indenture Trustee thereunder and such other
matters as the Representative shall reasonably request.
P. The Notes shall have been rated in the respective rating
categories and by the nationally recognized statistical rating
organizations described in the Prospectus Supplement under "Ratings."
Q. 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.
R. 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 Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and 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 Notes as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
S. 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; or (iv) there shall have
occurred such a material adverse change in general economic, political
or financial conditions (or the effect of international
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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) and (iv) herein, in the reasonable judgment of the
Underwriters, impractical or inadvisable to proceed with the public
offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
T. The Underwriters shall have received from Coopers & Xxxxxxx
LLP and Deloitte & Touche LLP, 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
- Risk of Home Equity Loan Coupon Rates Reducing the Note Rate," "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.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the Notes
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 Notes 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 Notes; (g) the costs of the accountant's letters referred to in
Section 6(R) 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
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taxes on the Notes which they may sell and the expenses of advertising any
offering of the Notes made by the Underwriters, and the Underwriters shall pay
the cost of any accountant's letters relating to any Computational Materials
(as defined in Section 5(E) hereof).
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
Notes), 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,
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
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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 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
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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 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. Each Underwriter agrees to provide the Depositor no later than
two Business Days prior to the day on which the Prospectus Supplement is
required to be filed pursuant to Rule 424 with a copy of any Computational
Materials (as defined in Section 5(E) hereof) produced by such Underwriter for
filing with the Commission on Form 8-K.
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
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thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Computational Materials 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 Notes 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.
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 Notes. 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
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Materials" means such portion, if any, of the information delivered to the
Depositor by such Underwriter pursuant to Section 8(D) 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 --
Computational Materials; 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 Estate.
H. The Seller and Servicer 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, the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement and the Computational
Materials (other than to the extent such information is based on Seller
Provided Information) furnished by such Underwriter is correct, and the parties
hereto acknowledge that such information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in connection
with the preparation of the Registration Statement 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 Notes 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 Notes
shall fail at the Closing Date to purchase the Notes which it is (or they are)
obligated to purchase hereunder (the "Defaulted Notes"), 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
Notes 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 Notes does not
exceed 10% of the aggregate principal amount of the Notes to be
purchased pursuant to this Agreement, the
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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 Notes 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(S) of this Agreement shall occur and be continuing. In the event of
any such termination, the covenant set forth in Section 5(G), the provisions of
Section 7, the indemnity agreement set forth in Section 8, and the provisions
of Sections 9 and 15 shall remain 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 Notes 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 PaineWebber Incorporated, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx
Xxxxxx, 11th Floor (Fax: 000-000-0000) with a copy to Xxxx Xxxxxx,
12th Floor, at the same address ;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).
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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 Notes 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.
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, IMC and the Underwriters, please indicate your acceptance in the
space provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
CONFIRMED AND ACCEPTED, as
of the date first above written:
PAINEWEBBER INCORPORATED
Acting on its own behalf and as
Representative of the several Underwriters
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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SCHEDULE A
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated. $280,000,000
Bear, Xxxxxxx & Co. Inc. $280,000,000
Nomura Securities International, Inc. $140,000,000
Total $700,000,000
Purchase Price Percentage
-------------------------
99.70%
Selling Concession Reallowance Discount
------------------ --------------------
0.18% 0.04%
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SCHEDULE B
(a) An Issuer Order authorizing the authentication and delivery of
the Notes by the Indenture Trustee.
(b) All of the items of Collateral which shall be delivered to the
Indenture Trustee or its designee.
(c) An executed counterpart of the Trust Agreement.
(d) Opinions of Counsel addressed to the Indenture Trustee and the
Note Insurer to the effect that:
(i) all instruments furnished to the Indenture Trustee as
conditions precedent to the authentication of the
Notes by the Indenture Trustee pursuant to the
Indenture conform to the requirements of the
Indenture and constitute all the documents required
to be delivered thereunder for the Indenture Trustee
to authenticate the Notes;
(ii) all conditions precedent provided for in the
Indenture relating to the authentication of the Notes
have been complied with;
(iii) the Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Trust
Agreement;
(iv) the Issuer has been duly formed, is validly existing
as a business trust under the laws of the State of
Delaware, 12 Del. C. Section 3801, et seq., and has
power, authority and legal right to execute and
deliver the Indenture, the Insurance Agreement and
the Sale and Servicing Agreement;
(v) assuming due authorization, execution and delivery
thereof by the Indenture Trustee, the Indenture is
the valid, legal and binding obligation of the
Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent or preferential
conveyance and other similar laws of general
application affecting the rights of creditors
generally and to general principles of equity
(regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(vi) the Notes, when executed and authenticated as
provided herein and delivered against payment
therefor, will be the valid, legal and binding
obligations of the Issuer pursuant to the terms of
the Indenture, entitled to the benefits of the
Indenture, and will be enforceable in accordance with
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their terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent
or preferential conveyance and other similar laws of
general application affecting the rights of creditors
generally and to general principles of equity
(regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(vii) the Trust Agreement authorizes the Issuer to Grant
the Collateral to the Indenture Trustee as security
for the Notes and the Owner Trustee has taken all
necessary action under the Trust Agreement to Grant
the Collateral to the Indenture Trustee;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act and the Notes have been registered
under the Securities Act;
(ix) the Indenture, together with the Grant of the
Collateral to the Indenture Trustee, creates a valid
security interest in the Collateral in favor of the
Indenture Trustee for the benefit of the Owners;
(x) such action has been taken with respect to delivery
of possession of the Collateral, and with respect to
the execution and filing of the Indenture and any
financing statements as are necessary to make
effective and to perfect a first priority security
interest created by the Indenture in the Collateral
in favor of the Indenture Trustee, except that with
respect to the Mortgage Notes, possession of such
Mortgage Notes must be maintained by the Indenture
Trustee or an agent of the Indenture Trustee (other
than the Issuer, an Affiliate of the Issuer, or a
"securities intermediary," as defined in Section
8.102 of the UCC); and
(xi) no authorization, approval or consent of any
governmental body having jurisdiction in the premises
which has not been obtained by the Issuer is required
to be obtained by the Issuer for the valid issuance
and delivery of the Notes, except that no opinion
need be expressed with respect to any such
authorizations, approvals or consents as may be
required under any state securities "blue sky" laws.
(e) An Officer's Certificate complying with the requirements of
Section 11.1 of the Indenture and stating that:
(i) the Issuer is not in Default under this Indenture and
the issuance of the Notes applied for will not result
in any breach of any of the terms, conditions or
provisions of, or constitute a default under, the
Trust Agreement, any indenture, mortgage, deed of
trust or other agreement or instrument to which the
Issuer is a party or by which it is bound, or any
order of any court or administrative agency entered
in any proceeding to which the Issuer is a party or
by which it may be bound or to which it
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may be subject, and that all conditions precedent
provided in the Indenture relating to the
authentication and delivery of the Notes applied for
have been complied with;
(ii) the Issuer is the owner of all of the Home Equity
Loans, has not assigned any interest or participation
in the Home Equity Loans (or, if any such interest or
participation has been assigned, it has been
released) and has the right to Grant all of the Home
Equity Loans to the Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all
of its right, title, and interest in the Collateral,
and has delivered or caused the same to be delivered
to the Indenture Trustee;
(iv) attached thereto are true and correct copies of
letters signed by Xxxxx'x and Standard & Poor's
confirming that the Notes have been rated "Aaa" and
"AAA" by Xxxxx'x and Standard & Poor's, respectively;
and
(v) all conditions precedent provided for in the
Indenture relating to the authentication of the Notes
have been complied with.
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