1
11/20/97
$775,000,000
IMC HOME EQUITY LOAN TRUST 1997-7
IMC Home Equity Loan Pass-Through Certificates,
Series 1997-7
UNDERWRITING AGREEMENT
----------------------
November 20, 1997
XXXXX XXXXXX INCORPORATED
As representative of the several underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized the issuance and sale of IMC Home Equity Loan Pass-Through
Certificates, Series 1997-7 consisting of (a) the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates, the Class A-6 Certificates, the Class A-7
Certificates, the Class A-8 Certificate and the Class A-9IO Certificates
(collectively, the "Class A Certificates") and (b) a residual class of
Certificates with respect to each REMIC held by the Trust. Only the Class A
Certificates (collectively, the "Offered Certificates") are offered hereby.
The Certificates represent an undivided ownership interest in a pool
of fixed rate home equity loans (the "Home Equity Loans") held by IMC Home
Equity Loan Trust 1997-7 (the "Trust"). The Certificates will represent
undivided ownership interests in the Home Equity Loans, which are secured by
first and second lien mortgages or deeds of trust primarily on one- to
four-family residential properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto (the "Underwriters"), and the Underwriters are
purchasing, severally, only the Offered Certificates set forth opposite their
names in Schedule A, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. PaineWebber
Incorporated ("the Representative") is acting for itself and as representative
of the other Underwriters.
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1997
among the Depositor, IMC Mortgage Company ("IMC"), as seller and as servicer
(in such capacity, the "Servicer" or the "Seller," as the case may be), and The
Chase Manhattan Bank, as trustee (the "Trustee"). The Offered Certificates
will evidence fractional undivided interests in the trust (the
2
"Trust"). The Trust assets (not all of which will be included in the REMIC
elections), will initially include among other things, a pool of fixed rate
Home Equity Loans (the "Initial Home Equity Loans"), and such amounts as may be
held by the 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 Trustee for the Trust. On the Closing Date, approximately
$193,000,000 will be deposited in the name of the Trustee in the Pre-Funding
Account. It is intended that additional Home Equity Loans satisfying the
criteria specified in the Pooling and Servicing Agreement (the "Subsequent Home
Equity Loans") will be purchased by the Trust for inclusion in the Trust from
the Depositor from time to time on or before February 15, 1998 from funds on
deposit in the Pre-Funding Account. Funds in the Capitalized Interest Account
will be applied by the Trustee to cover shortfalls in interest during the
Funding Period (as described herein under "Pre-Funding Account") on the Offered
Certificates attributable to the provisions allowing for purchase of Subsequent
Home Equity Loans after the Cut-Off date. The Offered Certificates will
initially represent an undivided ownership interest in the sum of the Initial
Home Equity Loans in an amount of $828,448,840.24 as of the close of business
on November 1, 1997 (the "Cut-Off Date") and (ii) the amount on deposit in the
Pre-Funding Account. Each Class of Offered Certificates will also have the
benefit of an insurance policy (the "Insurance Policy") issued by Financial
Security Assurances, Inc., a monoline insurance company (the "Certificate
Insurer"). The Insurance Policy will be issued pursuant to the insurance and
indemnity agreement (the "Insurance Agreement") among the Certificate Insurer,
the Depositor and IMC. The Certificate Insurer, IMC and the Underwriters also
will enter into an Indemnification Agreement, dated as of November 25, 1997
(the "Indemnification Agreement"). A form of the Pooling and Servicing
Agreement has been filed as an exhibit to the Registration Statement
(hereinafter defined).
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, IMC will transfer to the Depositor and
the Depositor will transfer to the Trust all of its right, title and interest
in and to the unpaid principal balances of the Initial Home Equity Loans as of
the Cut-Off Date and the collateral securing each Initial Home Equity Loan.
SECTION 1 Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-24455) has (i)
been prepared by the Depositor in conformity with the requirements of
the Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission")
-2-
3
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of
such Registration Statement have been delivered by the Depositor to
the Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such Registration Statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents incorporated
by reference therein at such time; and "Basic Prospectus" means such
final prospectus dated June 6, 1997; and "Prospectus Supplement" means
the final prospectus supplement relating to the Offered Certificates,
to be filed with the Commission pursuant to paragraph (2), (3) or (5)
of Rule 424(b) of the Rules and Regulations. "Prospectus" means the
Basic Prospectus together with the Prospectus Supplement. Reference
made herein to the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of the Prospectus
and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934 (the "Exchange Act") after the date of
the Prospectus, and incorporated by reference in the Prospectus and
any reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of the Prospectus. There are no
contracts or documents of the Depositor which are required to be filed
as exhibits to the Registration Statement pursuant to the Securities
Act or the Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective Date of
the Registration Statement other than such documents or materials, if
any, as any Underwriter delivers to the Depositor pursuant to Section
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 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
-3-
4
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Depositor in writing by the Underwriters
expressly for use therein. The only information furnished by the
Underwriters or on behalf of the Underwriters for use in connection
with the preparation of the Registration Statement or the Prospectus
is described in Section 8(I) hereof.
C. The documents incorporated by reference to the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation is
made as to 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 this Agreement, the Pooling and Servicing Agreement,
the Insurance Agreement or any Subsequent Transfer Agreement and to
cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is
the subject (a) which if determined adversely to the Depositor
-4-
5
would have a material adverse effect on the business or financial
condition of the Depositor, (b) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, the Certificates, the
Insurance Agreement or any Subsequent Transfer Agreement, (c) seeking
to prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by the Pooling and
Servicing Agreement. This Agreement, the Insurance Agreement or any
Subsequent Transfer Agreement, as the case may be, or (d) which might
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, this Agreement, the Certificates, the
Insurance Agreement or any Subsequent Transfer Agreement.
G. This Agreement has been, and the Pooling and Servicing Agreement,
the Insurance Agreement and each Subsequent Transfer Agreement when
executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Depositor, and
this Agreement constitutes, and the Pooling and Servicing Agreement
and the Insurance 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 or the Insurance Agreement limitations of public policy
under applicable securities laws.
H. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement, the Insurance Agreement and any
Subsequent Transfer Agreement by the Depositor and the consummation of
the transactions contemplated hereby and thereby, and the issuance and
delivery of the Certificates do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Depositor
is a party, by which the Depositor is bound or to which any of the
properties or assets of the Depositor or any of its subsidiaries is
subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the
Depositor, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the
Depositor or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Depositor
or any of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Depositor.
I. The Depositor has no reason to believe that Xxxxxxx & Xxxxxxx
L.L.P. are not independent public accountants with respect to the
Depositor as required by the Securities Act and the Rules and
Regulations.
-5-
6
J. The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly
authorized by the Depositor, and assuming the Trustee has been duly
authorized to do so, when executed, authenticated, issued and
delivered by the Trustee in accordance with the Pooling and Servicing
Agreement, the Certificates will be validly issued and outstanding and
will be entitled to the benefits provided by the Pooling and Servicing
Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates and
the sale of the Offered Certificates to the Underwriters, or the
consummation by the Depositor of the other transactions contemplated
by this Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement and any Subsequent Transfer Agreement except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with
the purchase and distribution of the Offered Certificates by the
Underwriters or as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus, and
the Depositor has not received notice of any proceedings relating to
the revocation or modification of any such license, certificate,
authority or permit which if decided adversely to the Depositor would,
singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and
Servicing Agreement, the Depositor will: (i) have good title to the
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 Pooling and Servicing Agreement or in the
Certificates being issued pursuant thereto; and (iii) have the power
and authority to sell its interest in the Initial Home Equity Loans to
the Trustee and to sell the Offered Certificates to the Underwriters.
Upon execution and delivery of the Pooling and Servicing Agreement by
the Trustee, the Trustee will have acquired beneficial ownership of
all of the Depositor's right, title and interest in and to the Home
Equity Loans. Upon delivery to the Underwriters of the Offered
Certificates, the Underwriters will have good title to the Offered
Certificates, free of any Liens.
N. 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 Pooling
-6-
7
and Servicing Agreement or in the Certificates being issued pursuant
thereto; and (iii) have the power and authority to sell the Subsequent
Home Equity Loans to the Trustee. Upon execution and delivery of the
Subsequent Transfer Agreement by the Trustee, the Trustee will have
acquired beneficial 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.
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "1940 Act")
and the rules and regulations of the Commission thereunder.
R. At the Closing Date, the Offered Certificates and the Pooling
and Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
S. At the Closing Date, the Offered Certificates shall have been
rated in the respective rating categories by the nationally recognized
rating agencies, as described in the Prospectus Supplement under
"Ratings".
T. Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Pooling and Servicing Agreement, and the Certificates have been paid
or will be paid at or prior to the Closing Date.
U. At the Closing Date, each of the representations and
warranties of the Depositor set forth in the Pooling and Servicing
Agreement and the Insurance Agreement will be true and correct in all
material respects.
Any certificate signed by an officer of the Depositor and delivered to
an Underwriter or counsel for the Underwriters in connection with an offering
of the Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on
-7-
8
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Depositor agrees to
instruct the Trustee to issue the Offered Certificates and agrees to sell to
each Underwriter, and each Underwriter agrees (except as provided in Sections
10 and 11 hereof) severally and not jointly to purchase from the Depositor the
aggregate initial principal amounts or percentage interests of the respective
Class or Classes of Offered Certificates set forth opposite their names on
Schedule A, at the purchase price or prices set forth in Schedule A. The
Underwriters may offer the Offered Certificates to certain dealers at such
prices less a concession not in excess of the respective amounts set forth in
Schedule A. The Underwriters may allow and such dealers may reallow a discount
to certain dealers not in excess of the respective amounts set forth in
Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the
Offered Certificates to be purchased by the Underwriters shall be made at the
offices of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Representative and
the Depositor at 10:00 A.M. New York City time on November 26, 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 Offered Certificates shall be
made to the Representative for the accounts of the applicable Underwriters
against payment of the purchase price thereof. The Certificates shall be in
such authorized denominations and registered in such names as the
Representative may request in writing at least two business days prior to the
Closing Date. The Offered Certificates will be made available for examination
by the Representative no later than 2:00 P.M. New York City time on the first
business day prior to the Closing Date.
SECTION 4 Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Offered Certificates for sale to the public as set forth in the Prospectus.
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
-8-
9
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus
and, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Certificates; to
promptly advise the Underwriters of its receipt of notice of the
issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of the Prospectus; (ii) the
suspension of the qualification of the Offered Certificates for
offering or sale in any jurisdiction; (iii) the initiation of or
threat of any proceeding for any such purpose; (iv) any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the
event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or
sale of the Offered Certificates, and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act, the Depositor
shall notify the Underwriters and, upon the Underwriters' request,
shall file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with
sales of any of the Offered Certificates at any time nine months or
more after the Effective Time, upon the request of the Underwriters
but at their expense, the Depositor shall prepare and deliver to the
-9-
10
Underwriters as many copies as the Underwriters may reasonably request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission.
E. The Depositor will cause any Computational Materials (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, Xxxxxxx
Acceptance Corporation I and certain affiliates and the no-action
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
Certificates: (i) amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference in
the Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules
and Regulations.
G. To make generally available to holders of the Offered
Certificates as soon as practicable, but in any event not later than
90 days after the close of the period covered thereby, a statement of
earnings of the Trust (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Depositor, Rule 158) and covering a
period of at least twelve consecutive months beginning not later than
the first day of the first fiscal
-10-
11
quarter following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States or elsewhere as the Underwriters may designate, and
maintain or cause to be maintained such qualifications in effect for
as long as may be required for the distribution of the Offered
Certificates. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Offered Certificates have been so qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates backed by home equity loans or
other similar securities representing interest in or secured by other
mortgage-related assets originated or owned by the Depositor or IMC
shall be publicly offered, sold nor shall the Depositor or IMC enter
into any contractual arrangements that contemplate the public offering
or sale of such securities for a period of seven (7) business days
following the commencement of the offering of the Offered Certificates
to the public.
J. So long as the Offered Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and
Servicing Agreement, to deliver to the Underwriters as soon as such
statements are furnished to the Owners: (i) the annual statement as to
compliance delivered to the Trustee pursuant to Section 8.16 of the
Pooling and Servicing Agreement; (ii) the annual statement of a firm
of independent public accountants furnished to the Trustee pursuant to
Section 8.17 of the Pooling and Servicing Agreement; (iii) the monthly
servicing report furnished to the Trustee pursuant to Section 7.08 of
the Pooling and Servicing Agreement; and (iv) the monthly reports
furnished to the Certificateholders pursuant to Section 7.09 of the
Pooling and Servicing Agreement.
K. To apply the net proceeds from the sale of the Offered
Certificates in the manner set forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Offered Certificates pursuant
to this Agreement are subject to: (i) the accuracy on and as of the Closing
Date of the representations and warranties on the part of the Depositor and IMC
herein contained; (ii) the performance by the Depositor of all of its
obligations hereunder; and (iii) the following conditions as of the Closing
Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
-11-
12
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 this Agreement, the Pooling
and Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all
respects to the Underwriters and their counsel, and the Depositor
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
X. Xxxxx & Xxxxxx 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 1933 Act; to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates (other than the financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with
the applicable requirements of the 1933 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.
-12-
13
4. The statements set forth in the Basic Prospectus
under the captions "Description of The Certificates" and
"Administration" and in the Prospectus Supplement under the
captions "Description of the Offered Certificates" and "The
Pooling and Servicing Agreement," to the extent such
statements purport to summarize certain provisions of the
Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Prospectus and the
Prospectus Supplement under the captions "ERISA
Considerations" and "Federal Income Tax Consequences" to the
extent that they constitute matters of federal law, provide a
fair and accurate summary of such law or conclusions.
6. The Pooling and Servicing Agreement conforms in all
material respects to the description thereof contained in the
Prospectus and is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended.
7. Neither the Depositor nor the Trust is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
8. Assuming that (a) the Trustee causes each of the
Upper-Tier REMIC and the Lower-Tier REMIC (other than the
Non-REMIC Accounts), as the Trustee has covenanted to do in
the Pooling and Servicing Agreement, to be treated as a "real
estate mortgage investment conduit" (the "REMIC"), as such
term is defined in the Internal Revenue Code of 1986, as
amended (the "Code") and (b) the parties to the Pooling and
Servicing Agreement comply with the terms thereof, the Offered
Certificates will be treated as "regular interests" in the
Upper-Tier REMIC and the Class R Certificates will constitute
the sole class of "residual interest" in the Upper-Tier REMIC.
The Trust is not subject to tax upon its income or assets by
any taxing authority of the State of New York.
9. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending that would
adversely affect the status of either the Upper-Tier REMIC or
the Lower-Tier REMIC (other than the Non-REMIC Accounts) as a
REMIC.
10. As a consequence of the qualification of each of the
Upper-Tier REMIC and the Lower-Tier REMIC (other than the
Non-REMIC Accounts) as a REMIC, the Offered Certificates will
be treated as "regular. . . interest(s) in a REMIC" under
Section 7701(a)(19)(C) of the Code and "real estate assets"
under Section 856(c) of the Code in the same proportion that
the assets in the
-13-
14
Trust consist of qualifying assets under such Sections. In
addition, as a consequence of the qualification of each of the
Upper-Tier REMIC and the Lower-Tier REMIC (other than the
Non-REMIC Accounts) as a REMIC, interest on the Offered
Certificates will be treated as "interest on obligations
secured by mortgages on real property" under Section 856(c) of
the Code to the extent that such Offered Certificates are
treated as "real estate assets" under Section 856(c) of the
Code.
11. The Offered Certificates will, when issued, conform
to the descriptions thereof contained in the Prospectus.
12. The Offered Certificates, when duly and validly
executed, authenticated and delivered in accordance with the
Pooling and Servicing Agreement and delivered to the
Underwriters and paid for in accordance with the Underwriting
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date,
in form and substance satisfactory to the Underwriters to the effect
that no facts have come to the attention of such counsel which lead
them to believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in
the Registration Statement); (b) the Prospectus, as of its date and as
of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; or (c) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Depositor prior to the Closing Date
contained, as of the time it became effective or was filed with the
Commission, as the case may be, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were 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 Rating Services, 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 Initial Home Equity
Loans to the Depositor and from the Depositor to the Trust, and such
counsel shall have consented to the reliance on such opinion by
Standard & Poor's Rating Services, a division of the XxXxxx-Xxxx
Companies, Xxxxx'x Investors Service, Inc. and the
-14-
15
Underwriters as though such opinion had been addressed to each such
party.
X. Xxxxxxxx X. Xxxxxx, P.A., special counsel to IMC, in IMC's
capacity as both Seller and Servicer under the Pooling and Servicing
Agreement, and/or Xxxxx & Xxxxxx shall have furnished to the
Underwriters their written opinion or opinions, addressed to the
Underwriters and the Depositor and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
1. IMC has been duly organized and is validly existing
as a corporation in good standing under the laws of the State
of Florida and has duly authorized all actions contemplated
hereby.
2. IMC has full power and authority to serve in the
capacity of seller and servicer of the Home Equity Loans as
contemplated in the Pooling and Servicing Agreement and to
transfer the Home Equity Loans to the Depositor as
contemplated in the Pooling and Servicing Agreement.
3. This Agreement, the Insurance Agreement, the
Indemnification Agreement and the Pooling 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 Pooling 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 Pooling 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
-15-
16
IMC is a party or is bound or to which any of the property or
assets of IMC or any of its subsidiaries is subject; (iii) to
the best of such firm's knowledge without independent
investigation any order, judgment, writ, injunction or decree
of any court or governmental authority having jurisdiction
over IMC; or (iv) any law, rule or regulations applicable to
IMC; or (B) to the best of such firm's knowledge without
independent investigation, results in the creation or
imposition of any lien, charge or encumbrance upon the Trust
Estate or upon the Certificates.
6. The execution of the Pooling and Servicing Agreement
is sufficient to convey all of IMC's right, title and interest
in the Initial Home Equity Loans to the Depositor and
following the consummation of the transaction contemplated by
section 3.05 of the Pooling and Servicing Agreement, the
transfer of the Initial Home Equity Loans by IMC to the
Depositor is a sale thereof.
7. 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 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.
8. There are, to the best of such counsel's knowledge
without independent investigation, no actions, proceedings or
investigations pending with respect to which IMC has received
service of process or threatened against IMC before any court,
administrative agency or other tribunal (a) asserting the
validity of the Pooling and Servicing Agreement, the
Underwriting Agreement, the Insurance Agreement, the
Indemnification Agreement or the Certificates, (b) seeking to
prevent the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or (c)
which would materially and adversely affect the performance by
IMC of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, the
Insurance Agreement, the Indemnification Agreement or the
Underwriting Agreement.
Such opinion may rely on the opinion of Florida
counsel as to matters governed by Florida law to the extent
such Florida opinion is satisfactory, in form and substance,
to the Underwriters.
X. Xxxxx & Xxxxxx, 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:
-16-
17
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
this Agreement, the Insurance Agreement and the Pooling and
Servicing Agreement and to cause the Certificates to be
issued.
2. The Depositor has the requisite power and authority
and legal right to own the Class R 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. This Agreement, the Pooling and Servicing Agreement,
the Insurance Agreement and the Purchase Agreement relating to
the purchase of the Class R Certificates (the "Purchase
Agreement") 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
Insurance Agreement, limitations of public policy under
applicable securities laws.
5. The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement and each Subsequent Transfer Agreement by the
Depositor, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the
Certificates do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is
-17-
18
bound or to which any of the property or assets of the
Depositor or any of its subsidiaries is subject, which breach
or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor,
nor will such actions result in a violation of the provisions
of the certificate of incorporation or by-laws of the
Depositor or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Depositor or any of its properties or assets, which
breach or violation would have a material adverse effect on
the business, operations or financial condition of the
Depositor.
6. The direction by the Depositor to the Trustee to
execute, issue, authenticate and deliver the Certificates has
been duly authorized by the Depositor and, assuming that the
Trustee has been duly authorized to do so, when executed,
authenticated and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
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 Certificates, and the sale of the
Offered Certificates to the Underwriters, or the consummation
by the Depositor of the other transactions contemplated by
this Agreement, the Insurance Agreement and the Pooling and
Servicing Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be
required State securities or Blue Sky laws in connection with
the purchase and distribution of the Offered Certificates by
the Underwriters or as have been previously obtained.
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 Pooling and Servicing Agreement, this Agreement, the
Insurance Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation
by the Depositor of any of the transactions contemplated by
the Pooling and Servicing Agreement, the Insurance Agreement
or this Agreement, as the case may be; or (d) which might
materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, this
-18-
19
Agreement, the Insurance Agreement or the Certificates.
H. The Underwriters shall have received the favorable opinion of
counsel to the Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
1. The Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York.
2. The Trustee has the full corporate trust power to
execute, deliver and perform its obligations under the Pooling
and Servicing Agreement.
3. The execution and delivery by the Trustee of the
Pooling and Servicing Agreement and the performance by the
Trustee of its obligations under the Pooling and Servicing
Agreement have been duly authorized by all necessary corporate
action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and
legally binding obligation of the Trustee enforceable against
the Trustee.
5. The execution and delivery by the Trustee of the
Pooling and Servicing Agreement does not (a) violate the
Organization Certificate of the Trustee or the Bylaws of the
Trustee, (b) to such counsel's knowledge, violate any
judgment, decree or order of any New York or United States
federal court or other New York or United States federal
governmental authority by which the Trustee is bound or (c)
assuming the non-existence of any judgment, decree or order of
any court or other governmental authority that would be
violated by such execution and delivery, violate any New York
or United States federal statute, rule or regulation or
require any consent, approval or authorization of any New York
or United States federal court or other New York or United
States federal governmental authority.
6. The Certificates have been duly authenticated,
executed and delivered by the Trustee.
7. If the Trustee were acting as Servicer under the
Pooling and Servicing Agreement as of the date of such
opinion, the Trustee would have the full corporate trust power
to perform the obligations of the Servicer under the Pooling
and Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Trustee before or by any court,
arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Trustee, would
-19-
20
materially and adversely affect the ability of the Trustee to
carry out the transactions contemplated in the Pooling and
Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Offered Certificates, the
Registration Statement, this Agreement, the Prospectus and such other related
matters as the Underwriters may reasonably require.
J. The Underwriters shall have received the favorable opinion dated
the Closing Date, from in-house counsel to the Certificate Insurer, in form and
scope satisfactory to counsel for the Underwriters, substantially to the effect
that:
1. The Certificate Insurer is a monoline insurance
company duly incorporated, validly existing, and in good
standing under the laws of the State of New York. The
Certificate 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 Certificate 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
Certificate Insurer of the Insurance Policy, the
Indemnification Agreement and the 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 the Insurance Agreement have been duly authorized,
executed and delivered by the Certificate Insurer and
constitute the legal, valid and binding agreement of the
Certificate Insurer, enforceable against the Certificate
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 such laws may be applied in any such proceeding with
respect to the Certificate Insurer and (y) the qualification
that the remedy of specific performance and other forms of
-20-
21
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
Certificate Insurer" in the Prospectus Supplement, insofar as
such information constitutes a description of the Insurance
Policy, accurately summarizes such Insurance Policy.
K. The Depositor and IMC shall each have furnished to the
Underwriters a certificate, dated the Closing Date and signed by the Chairman
of the Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such
entity in this Agreement and in the Pooling and Servicing
Agreement are true and correct as of the Closing Date; and
such entity has complied with all agreements contained herein
which are to have been complied with on or prior to the
Closing Date.
2. The information contained in the Prospectus relating
to such entity and 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 June 19, 1990 and no such amendment has been
authorized. No event has occurred since September 15, 1997
which has affected the good standing of the Depositor under
the laws of the State of Delaware or since September 18, 1997
which has affected the good standing of IMC under the laws of
the state of Florida.
4. There has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business or operations of such entity from September
30, 1997.
-21-
22
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.
L. The Trustee shall have furnished to the Underwriters a
certificate of the Trustee, signed by one or more duly authorized
officers of the Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the acceptance by the Trustee of the
trusts created thereby and the due execution, authentication and
delivery of the Certificates by the Trustee thereunder and such other
matters as the Representative shall reasonably request.
M. The Insurance Policy and the Insurance Agreement shall have
been issued by the Certificate Insurer and shall have been duly
authenticated by an authorized agent of the Certificate Insurer, if so
required under applicable state law or regulations.
N. Each Class of the Offered Certificates shall have been rated
in the respective rating categories and by the nationally recognized
statistical rating organizations described in the Prospectus
Supplement under "Ratings."
O. 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.
P. Prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and
related proceedings or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Depositor in connection with the issuance and
sale of the Certificates as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
Q. 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
-22-
23
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
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 Certificates on the terms and in the
manner contemplated in the Prospectus.
R. The Underwriters shall have received from Coopers & Xxxxxxx
L.L.P., certified public accountants, a letter dated the date of the
Prospectus Supplement and a letter dated the date hereof and
satisfactory in form and substance to the Underwriters and their
counsel, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriters, as a
result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement on the cover page thereof and under the captions
"Summary of Terms - The Home Equity Loans", "Risk Factors - Nature of
the Collateral; Junior Liens", "Risk Factors - Risk of Higher Default
Rates for Home Equity Loans with Balloon Payments", "The Seller and
Servicer - General", "The Seller and Servicer - Delinquency, Loan Loss
and Foreclosure Information" and "The Home Equity Loan Pool -
General," agrees with the records of the Depositor excluding any
questions of legal interpretation.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Depositor at any time at or
prior to the closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to the Underwriters and their counsel.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement and any amendments and exhibits thereto; (c) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided
in this Agreement; (d) the costs of reproducing and distributing this
Agreement; (e) the fees and expenses of qualifying the Certificates under the
securities laws of the several jurisdictions designated by the Underwriters as
provided in Section 5(H) hereof and of preparing, printing and distributing a
Blue Sky Memorandum and a Legal Investment Survey (including related fees and
expenses of counsel to the Underwriters); (f) any fees charged by securities
rating services for rating
-23-
24
the Offered Certificates; (g) the costs of the accountant's letters referred to
in Section 6(P) hereof; and (h) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses
of your counsel); provided that, except as provided in this Section 7, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Certificates which
they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriters, and the Underwriters shall pay the cost
of any accountant's letters relating to any Computational Materials (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
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, or any amendment thereof or supplement thereto,
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and shall reimburse such Underwriter and each such controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Depositor shall not be liable in any such case to the extent that any such
loss, claim, damage, 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
-24-
25
in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all
loss, claim, damage or liability, or any action in respect thereof, to which
the Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii)
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment thereof or supplement thereto, or
(iv) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein, and shall reimburse the
Depositor and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Depositor or any such
director, officer or controlling person. The only information furnished by the
Underwriters or on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement or the Prospectus is described in
Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this
Section 8 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not 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
-25-
26
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except to
the extent provided in the next following paragraph, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section 8 consist of one or
more Underwriters or any of its or their controlling persons, or the Depositor,
if the indemnified parties under this Section 8 consist of the Depositor or any
of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have 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
-26-
27
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 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 Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section 8(C),
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations.
The relative benefits of the Depositor and an Underwriter shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions as set forth on the cover page of the
Prospectus Supplement received by such Underwriter.
-27-
28
The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by such Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the amount of the underwriting
discounts and commissions received by such Underwriter in connection with its
purchase of the Offered Certificates. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the
term "Computational Materials" 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.
X. The Seller and Xxxxxxxx agrees to indemnify each indemnified
party referred to in Section 8(A) hereof with respect to Seller Provided
Information to the same extent as the indemnity granted under such section.
The procedures set forth in Section 8(C) shall be equally applicable to this
Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter
-28-
29
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 Offered Certificates to the Underwriters.
SECTION 10 Default by One or More of the Underwriters. If one or
more of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered
Certificates which it is (or they are) obligated to purchase hereunder (the
"Defaulted Certificates"), then the non-defaulting Underwriters shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Certificates in such amounts as may be
agreed upon and upon the terms herein set forth. If, however, the Underwriters
have not completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates
does not exceed 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, this
Agreement shall terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be
-29-
30
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(P) 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 Offered Certificates from the Depositor, to indemnify
and hold harmless each Underwriter against any failure by the Depositor to
perform its obligations to the Underwriters hereunder, including, without
limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to PaineWebber Incorporated,
______________ New York, New York Attention: __________________ (Fax:
000-000-0000) ;and
B. if to the Depositor, shall be delivered or sent by mail, telex
or facsimile transmission to care of IMC Securities, Inc., 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000 Attention: Xxxxxx Xxxxxxxxx
(Fax: (000) 000-0000).
SECTION 14 Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and the Depositor, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of directors
of the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
SECTION 15 Survival. The respective indemnities, representations,
warranties and
-30-
31
agreements of the Depositor and the Underwriters contained in this Agreement,
or made by or on behalf of them, respectively, pursuant to the shall survive
the delivery of and payment for the Certificates and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of
this Agreement, "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
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.
-31-
32
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
PAINEWEBBER INCORPORATED
Acting on its own behalf and as
Representative of the several Underwriters
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
-32-
33
SCHEDULE A
Class A-7 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $ 76,542,000
Bear, Xxxxxxx & Co., Inc. $ 76,542,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated $ 51,028,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 51,028,000
----------
Total $255,140,000
Class A-2 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $33,846,000
Bear, Xxxxxxx & Co., Inc. 33,846,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 22,564,000
----------
Total $112,820,000
-33-
34
Class A-3 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated. $36,252,000
Bear, Xxxxxxx & Co., Inc. 36,252,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 24,168,000
Xxxxxx Xxxxxxx & Co. Incorporated 24,168,000
Total $120,840,000
Class A-4 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $13,293,000
Bear, Xxxxxxx & Co. Inc. 13,293,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 8,862,000
Xxxxxx Xxxxxxx & Co. Incorporated 8,862,000
---------
Total $44,310,000
Class A-5 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $21,330,000
Bear ,Xxxxxxx & Co. Inc. 21,330,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 14,220,000
Xxxxxx Xxxxxxx & Co. Incorporated 14,220,000
----------
Total $71,100,000
Class A-6 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $18,531,000
Bear, Xxxxxxx & Co. Inc. $18,531,000
-34-
35
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 12,354,000
Xxxxxx Xxxxxxx & Co. Incorporated 12,354,000
----------
Total $61,770,000
Class A-7 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $16,432,500
Bear, Xxxxxxx & Co. Inc. 16,432,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 10,955,000
Xxxxxx Xxxxxxx & Co. Incorporated 10,955,000
----------
Total $54,775,000
Class A-8 Certificates
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated $16,273,500
Bear, Xxxxxxx & Co. Inc. 16,273,500
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated 10,849,000
Xxxxxx Xxxxxxx & Co. Incorporated 10,849,000
----------
Total $54,245,000
Class A-9IO Certificates
Underwriters Percentage Interest
------------ -------------------
PaineWebber Incorporated 30%
Bear, Xxxxxxx & Co. Inc. 30%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 20%
Xxxxxx Xxxxxxx & Co. Incorporated 20%
---
Total 100%
-35-
36
Selling Reallowance
Class Concession Discount
----- ---------- --------
A-1 0.09375% .075%
A-2 0.11250% .075%
A-3 0.13125% .0750%
A-4 0.15000% .100%
A-5 0.18750% .125%
A-6 0.22500% .125%
A-7 0.33750% .250%
A-8 0.18750% .125%
A-9IO 0.02294% .020%
-36-
