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EXECUTION COPY
$307,785,257
IMC HOME EQUITY LOAN OWNER TRUST 1997-8
Adjustable Rate Home Equity Loan Asset Backed Notes,
Series 1997-8
UNDERWRITING AGREEMENT
December 23, 1997
PAINEWEBBER INCORPORATED
As representative of the several underwriters
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized (i) the creation of IMC Home Equity Loan Owner Trust 1997-8, a
Delaware business trust (the "Issuer"), pursuant to the Owner Trust Agreement,
dated as of December 1, 1997 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company ("Wilmington Trust"), as owner trustee (the "Owner
Trustee") and (ii) the issuance and sale of $307,785,257 aggregate original
principal amount of the Issuer's Adjustable Rate Home Equity Loan Asset Backed
Notes Series 1997-8 (the "Notes"). The Notes will evidence non-recourse
obligations of, and will be issued by, the Issuer pursuant to the terms of the
Indenture, dated as of December 1, 1997 (the "Indenture"), between the Issuer
and The Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee").
Pursuant to the Trust Agreement, the Issuer also will issue certificates
evidencing the residual interest in the Issuer (the "Residual Interest"). The
Residual Interest and the Notes are sometimes collectively referred to as the
"Securities."
The Notes will be secured by a trust estate (the "Trust Estate")
consisting primarily of a pool of adjustable-rate home equity loans secured by
mortgages or deeds of trust creating first and second liens on primarily one- to
four-family residential properties (the "Home Equity Loans") and such amounts as
may be held by the Indenture Trustee in any accounts for the Owners. The Notes
will be secured by the Home Equity Loans in an amount of $307,785,257 as of the
close of business on December 1, 1997 (the "Cut-Off Date"). The Home Equity
Loans will be sold by IMC Mortgage Company, ("IMC") to the Depositor pursuant to
the Loan Sale Agreement, dated as of December 1, 1997 (the "Loan Sale
Agreement") between IMC and the Depositor, and by the Depositor to the Issuer
pursuant to the Sale and Servicing Agreement, dated as of December 1, 1997 (the
"Sale and Servicing Agreement"), among IMC, as seller
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(the "Seller") and as servicer (the "Servicer"), the Depositor, the Indenture
Trustee and the Issuer. Pursuant to the Sale and Servicing Agreement, the
Servicer will service the Home Equity Loans on behalf of the Issuer.
The Notes will have the benefit of a financial guaranty insurance
policy (the "Insurance Policy") issued by MBIA Insurance Corporation (the "Note
Insurer"), issued pursuant to the Insurance Agreement, dated as of December 1,
1997 (the "Insurance Agreement") among the Seller, the Servicer, the Depositor,
the Indenture Trustee and the Note Insurer. The Note Insurer, the Seller, the
Depositor, PaineWebber Incorporated and Bear, Xxxxxxx & Co. Inc., as
Underwriters, also will enter into an Indemnification Agreement, dated as of
December 23, 1997 (the "Indemnification Agreement"). This Agreement, the Trust
Agreement, the Sale and Servicing Agreement, the Indenture, the Indemnification
Agreement, the Loan Sale Agreement and the Insurance Agreement are sometimes
referred to herein collectively as the "Agreements". A form of each of the Trust
Agreement, the Indenture and the Sale and Servicing Agreement has been filed as
an exhibit to the Registration Statement (hereinafter defined).
The Notes are more fully described in a Registration Statement which the
Depositor has furnished to the Underwriters. Capitalized terms used but not
defined herein shall have the meanings given to them in the Agreements.
The Notes are being purchased by the Underwriters named in Schedule A
hereto (the "Underwriters"), and the Underwriters are purchasing, severally,
only the Notes set forth opposite their names in Schedule A, except that the
amounts purchased by the Underwriters may change in accordance with Section 10
of this Agreement. PaineWebber Incorporated (the "Representative") is acting for
itself and as representative of the other Underwriters.
SECTION 1 Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-31197) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act"), the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") under the Securities Act and the Trust
Indenture Act, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of such
Registration Statement have been delivered by the Depositor to the
Underwriters. As used in this Agreement, "Effective Time" means the date
and the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
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"Registration Statement" means such registration statement, at the
Effective Time, including any documents incorporated by reference therein
at such time; and "Basic Prospectus" means such final prospectus dated
August 18, 1997; and "Prospectus Supplement" means the final prospectus
supplement relating to the Notes, to be filed with the Commission pursuant
to paragraph (2), (3) or (5) of Rule 424(b) of the Rules and Regulations.
"Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. Reference made herein to the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date
of the Prospectus and any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934 (the "Exchange Act") after the
date of the Prospectus, and incorporated by reference in the Prospectus
and any reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective
Time that is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of
the Prospectus. There are no contracts or documents of the Depositor which
are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act, the Rules and Regulations or the Trust
Indenture Act which have not been so filed or incorporated by reference
therein on or prior to the Effective Date of the Registration Statement
other than such documents or materials, if any, as any Underwriter
delivers to the Depositor pursuant to Section 8(D) hereof for filing on
Form 8-K. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus
will, when they become effective or are filed with the Commission, as the
case may be, conform in all respects to the requirements of the Securities
Act, the Trust Indenture Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus as
of its date, and as amended or supplemented as of the Closing Date, does
not and will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted 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.
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C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation is made as to documents deemed to be
incorporated by reference in the Prospectus as the result of filing a Form
8-K at the request of the Underwriters except to the extent such documents
reflect information furnished by the Depositor to the Underwriters for the
purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus
as supplemented or amended as of the Closing Date.
E. The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is in good standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business requires
such qualification, and has all power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under each Agreement to which it is
a party and to cause the Securities to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject
(a) which if determined adversely to the Depositor would have a material
adverse effect on the business or financial condition of the Depositor,
(b) asserting the invalidity of any of the Agreements or the Securities,
(c) seeking to prevent the issuance of the Securities or the consummation
by the Depositor of any of the transactions contemplated by the
Agreements, or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, the Agreements or the Securities.
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G. This Agreement has been, and each other Agreement to which the
Depositor is a party when executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered by the
Depositor, and this Agreement constitutes, and each such other Agreement
when executed and delivered as contemplated herein, will constitute,
legal, valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to
(x) applicable bankruptcy, reorganization, insolvency moratorium or other
similar laws affecting creditors' rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), and (z) with respect to rights of indemnity under this
Agreement and the Indemnification Agreement, limitations of public policy
under applicable securities laws.
H. The execution, delivery and performance of each Agreement to which the
Depositor is a party and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Notes do not and
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Depositor is a party, by which the Depositor is bound or to
which any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a material
adverse effect on the business, operations or financial condition of the
Depositor, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Depositor or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Depositor or any of its
properties or assets, which breach or violation would have a material
adverse effect on the business, operations or financial condition of the
Depositor.
I. The Depositor has no reason to believe that Coopers & Xxxxxxx L.L.P.
are not independent public accountants with respect to the Depositor as
required by the Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Owner Trustee to execute, issue
and deliver and the direction by the Depositor to the Indenture Trustee to
authenticate the Notes has been duly authorized by the Depositor, and
assuming the Owner Trustee and the Indenture Trustee have been duly
authorized to do so, when executed, authenticated, issued and delivered in
accordance with the Indenture, the Notes will be validly issued and
outstanding and will be entitled to the benefits provided by the
Indenture.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Securities and the sale
of the Notes to the Underwriters, or the consummation by the Depositor of
the other transactions contemplated by the
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Agreements except such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Notes by the
Underwriters or as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and the Depositor has
not received notice of any proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which
if decided adversely to the Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
M. At the time of execution and delivery of the Sale and Servicing
Agreement, the Depositor will: (i) have good title to the Home Equity
Loans conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person any of its
right or title in the Home Equity Loans, in the Sale and Servicing
Agreement or in the Notes being issued pursuant to the Indenture and (iii)
have the power and authority to sell its interest in the Home Equity Loans
to the Issuer and to sell the Notes to the Underwriters. Upon execution
and delivery of the Sale and Servicing Agreement by the Issuer, the Issuer
will have acquired beneficial ownership of all of the Depositor's right,
title and interest in and to the Home Equity Loans. Upon execution and
delivery of the Indenture by the Issuer and the Indenture Trustee, the
Indenture Trustee will have a valid and perfected security interest in the
Trust Estate free of any other Liens. Upon delivery to the Underwriters of
the Notes, the Underwriters will have good title to the Notes, free of any
Liens.
N. [RESERVED]
O. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
P. [RESERVED]
Q. Neither the Depositor nor the Issuer is an "investment company" within
the meaning of such term under the Investment Company Act of 1940 (the
"1940 Act") and the rules and regulations of the Commission thereunder.
R. At the Closing Date, the Notes and each Agreement will conform in all
material respects to the descriptions thereof contained in the Prospectus.
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S. At the Closing Date, the Notes shall have been rated in the respective
rating categories by the nationally recognized rating agencies, as
described in the Prospectus Supplement under "Ratings".
T. Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of each Agreement and the Securities have
been paid or will be paid at or prior to the Closing Date.
U. At the Closing Date, each of the representations and warranties of the
Depositor set forth in each Agreement to which it is a party will be true
and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to an
Underwriter or counsel for the Underwriters in connection with an offering of
the Notes shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Depositor agrees to
instruct the Issuer to issue the Notes and agrees to sell to each Underwriter,
and each Underwriter agrees (except as provided in Sections 10 and 11 hereof)
severally and not jointly to purchase from the Depositor the aggregate initial
principal amounts of the Notes set forth opposite their names on Schedule A, at
the purchase price or prices set forth in Schedule A. The Underwriters may offer
the Notes to certain dealers at such price less a concession not in excess of
the amount set forth in Schedule A. The Underwriters may allow and such dealers
may reallow a discount to certain dealers not in excess of the amount set forth
in Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the Notes to
be purchased by the Underwriters shall be made at the offices of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representative and the Depositor at 10:00
A.M. New York City time on December 30, 1997, or at such other time or date as
shall be agreed upon in writing by the Representative and the Depositor (such
date being referred to as the "Closing Date"). Payment shall be made to the
Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Notes shall be made to the Representative for the
accounts of the applicable Underwriters against payment of the purchase price
thereof. The Notes shall be in such authorized denominations and registered in
such names as the Representative may request in writing at least two business
days prior to the Closing Date. The Notes will be made available for examination
by the Representative no later than 2:00 P.M. New York City time on the first
business day prior to the Closing Date.
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SECTION 4 Offering by the Underwriters. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the Notes for
sale to the public as set forth in the Prospectus.
SECTION 5 Covenants of the Depositor and IMC. The Depositor and, to the
extent the provisions of Section I. below relate to IMC, IMC each agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriters to make
no further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective prior to the Closing Date or any supplement to the
Prospectus or any amended Prospectus has been filed prior to the Closing
Date and to furnish the Underwriters with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to
be filed by the Depositor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Notes; to promptly advise the
Underwriters of its receipt of notice of the issuance by the Commission of
any stop order or of: (i) any order preventing or suspending the use of
the Prospectus; (ii) the suspension of the qualification of the Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat of
any proceeding for any such purpose; (iv) any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information. In the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Depositor promptly
shall use its best efforts to obtain the withdrawal of such order by the
Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment 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
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time prior to the expiration of nine months after the Effective Time in
connection with the offering or sale of the Notes, and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Depositor shall notify the
Underwriters and, upon the Underwriters' request, shall file such document
and prepare and furnish without charge to the Underwriters and to any
dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such
compliance, and in case the Underwriters are required to deliver a
Prospectus in connection with sales of any of the Notes at any time nine
months or more after the Effective Time, upon the request of the
Underwriters but at their expense, the Depositor shall prepare and deliver
to the Underwriters as many copies as the Underwriters may reasonably
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may,
in the judgment of the Depositor or the Underwriters, be required by the
Securities Act, the Trust Indenture Act or requested by the Commission.
E. The Depositor will cause any Computational Materials (as defined below)
with respect to the Offered Certificates which are delivered by any
Underwriter to the Depositor to be filed with the Commission on a Current
Report on Form 8-K (the "Form 8-K -- Computational Materials") at or
before the time of filing of the Prospectus pursuant to Rule 424(b) under
the 1933 Act; provided, however, that the Depositor shall have no
obligation to file any materials which, in the reasonable determination of
the Depositor after consultation with such Underwriter, (i) are not
required to be filed pursuant to the Xxxxxx Letters (as defined below) or
(ii) contain any erroneous information or untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Depositor shall have no obligation to review
or pass upon the accuracy or adequacy of, or to correct, any Computational
Materials provided by any Underwriter to the Depositor as aforesaid. For
purposes hereof, as to each Underwriter, the term "Computational
Materials" shall mean those materials delivered by an Underwriter to the
Depositor within the meaning of the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to Xxxxxx,
Peabody Acceptance Corporation I and certain affiliates and the no-action
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letters dated May 27, 1994 and February 17, 1995, each issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (all three of such letters, the "Xxxxxx Letters") for which
the filing of such material is a condition of the relief granted in such
letters.
F. To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters
for the filing of the following documents relating to the Notes: (i)
amendment to the Registration Statement or supplement to the Prospectus,
or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations.
G. To make generally available to holders of the Notes as soon as
practicable, but in any event not later than 90 days after the close of
the period covered thereby, a statement of earnings of the Issuer (which
need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Depositor,
Rule 158) and covering a period of at least twelve consecutive months
beginning not later than the first day of the first fiscal quarter
following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required
for the distribution of the Notes. The Depositor will file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been so qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates or debt instruments backed by home
equity loans or other similar securities representing interest in or
secured by other mortgage-related assets originated or owned by the
Depositor or IMC shall be publicly offered, sold nor shall the Depositor
or IMC enter into any contractual arrangements that contemplate the public
offering or sale of such securities for a period of seven (7) business
days following the commencement of the offering of the Notes to the
public.
J. So long as the Notes shall be outstanding the Depositor shall cause the
Indenture Trustee, pursuant to the Sale and Servicing Agreement, to
deliver to the Underwriters as soon as such statements are furnished to
the Owners: (i) the annual statement as to compliance delivered to the
Indenture Trustee pursuant to Section 4.16 of the Sale and Servicing
Agreement; (ii) the annual statement of a firm of independent public
accountants furnished to the Indenture Trustee pursuant to Section 4.17 of
the Sale and Servicing Agreement; (iii) the monthly servicing report
furnished to the Trustee
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pursuant to Section [3.08] of the Sale and Servicing Agreement; and (iv)
the monthly reports furnished to the Noteholders pursuant to Section 3.09
of the Indenture.
K. To apply the net proceeds from the sale of the Notes in the manner set
forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Notes pursuant to this Agreement are subject
to: (i) the accuracy on and as of the Closing Date of the representations and
warranties on the part of the Depositor and IMC herein contained; (ii) the
performance by the Depositor of all of its obligations hereunder; and (iii) the
following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of Stroock & Stroock & Xxxxx LLP, counsel for the Underwriters, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements, the Issuer, the Notes,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be satisfactory in all respects to the Underwriters and their counsel, and
the Depositor shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
X. Xxxxx & Xxxxxx shall have furnished to the Underwriters their written
opinion, as counsel to the Depositor, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus.
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2. The Registration Statement and any amendments thereto have become
effective under the Securities Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical
information contained therein, as to which such counsel need express
no opinion), complied as to form in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to
be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Securities", "Servicing of Mortgage
Loan" and "The Indenture" and in the Prospectus Supplement under the
captions "Description of the Notes" and "Administration," to the
extent such statements purport to summarize certain provisions of
the Notes or of the Agreements, are fair and accurate in all
material respects.
5. The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations" and "Federal
Income Tax Consequences" to the extent that they constitute matters
of federal law, provide a fair and accurate summary of such law or
conclusions.
6. The Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus. The Indenture has
been duly qualified under the Trust Indenture Act of 1939, as
amended and complies with the requirements of the Trust Indenture
Act and the applicable Rules and Regulations.
7. Neither the Depositor nor the Issuer is an "investment company"
or under the "control" of an "investment company" as such terms are
defined in the 1940 Act.
8. For federal income tax purposes, the Notes will be treated as
debt obligations of the Issuer, and the Issuer will not be
characterized as an association (or publicly traded partnership)
taxable as a corporation.
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9. The Notes will, when issued, conform to the descriptions thereof
contained in the Prospectus.
10. The Notes, when duly and validly executed, authenticated and
delivered in accordance with the Indenture and delivered to the
Underwriters and paid for in accordance with the Underwriting
Agreement, will be entitled to the benefits of the Indenture
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the closing Date, in
form and substance satisfactory to the Underwriters to the effect that no
facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (except
as to financial or statistical data contained in the Registration
Statement); (b) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor prior
to the Closing Date contained, as of the time it became effective or was
filed with the Commission, as the case may be, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated the
Closing Date, of Xxxxx & Xxxxxx, special counsel to the Depositor,
addressed to the Depositor and satisfactory to Standard & Poor's, a
division of the XxXxxx-Xxxx Companies, Xxxxx'x Investors Service, Inc. and
the Underwriters, with respect to certain matters relating to the transfer
of the Home Equity Loans to the Depositor and from the Depositor to the
Issuer, and such counsel shall have consented to the reliance on such
opinion by Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Xxxxx'x Investors Service, Inc. and the Underwriters as though such
opinion had been addressed to each such party.
X. Xxxxxxxx X. Xxxxxx, P.A., special counsel for IMC, in IMC's capacity as
both Seller and Servicer under the Sale and Servicing Agreement, shall
have furnished to the Underwriters their written opinion, addressed to the
Underwriters and the Depositor and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
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1. IMC has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Florida
and has duly authorized all actions contemplated hereby.
2. IMC has full power and authority to serve in the capacity of
seller and servicer of the Home Equity Loans as contemplated in the
Sale and Servicing Agreement and to transfer the Home Equity Loans
to the Depositor as contemplated in the Loan Sale Agreement and has
the requisite power and authority and legal right to own the
Residual Interest.
3. This Agreement, the Loan Sale Agreement and the Sale and
Servicing Agreement have been duly authorized, executed and
delivered by IMC and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto, constitute
the legal, valid and binding agreements of IMC, enforceable against
IMC in accordance with their terms, subject as to enforceability to
(x) bankruptcy, insolvency, reorganization, moratorium, receivership
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (y) the qualification that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion, with respect to such remedies, of the court before which
any proceedings with respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
having jurisdiction over IMC is required for the consummation by the
Servicer of the transactions contemplated by the Sale and Servicing
Agreement, except such consents, approvals, authorizations,
registrations and qualifications as have been obtained.
5. Neither the transfer of the Home Equity Loans by IMC to the
Depositor, nor the execution, delivery or performance by IMC of the
Loan Sale Agreement and the Sale and Servicing Agreement and the
transactions contemplated thereby (A) conflict with or result in a
breach of, or constitute a default under, (i) any term or provision
of the formation documents of IMC, as applicable; (ii) any term or
provision of any material agreement, deed of trust, mortgage loan
agreement, contract, instrument or indenture, or other agreement to
which IMC is a party or is bound or to which any of the property or
assets of IMC or any of its subsidiaries is subject; (iii) to the
best of such firm's knowledge without independent investigation any
order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over IMC; or (iv) any
law, rule or regulations applicable to IMC; or (B) to the best of
such firm's knowledge without independent investigation, results in
the creation or imposition of any lien, charge or encumbrance upon
the Trust Estate or upon the
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Notes.
6. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or investigations
pending with respect to which IMC has received service of process or
threatened against IMC before any court, administrative agency or
other tribunal (a) asserting the invalidity of any of the Agreements
or the Notes, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Agreements or (c) which would
materially and adversely affect the performance by IMC of its
obligations under, or the validity or enforceability of, the Sale
and Servicing Agreement or this Agreement.
X. Xxxxx & Xxxxxx, special counsel for the Depositor, shall have furnished
to the Underwriters their written opinion, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Delaware and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business so requires. The Depositor has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations under the Agreements and to cause the Securities to be
issued.
2. The Depositor has the requisite power and authority and legal
right to own the Certificates.
3. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, of the Depositor.
4. The Agreements to which the Depositor is a party have been duly
authorized, and when duly executed and delivered by the Depositor
and, assuming the due authorization, execution and delivery of such
agreements by the other parties thereto, such agreements constitute
valid and binding obligations, enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability
to (x) bankruptcy, insolvency,
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reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (y) general
principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law) and (z) with respect to rights of
indemnity under this Agreement and the Indemnification Agreement,
limitations of public policy under applicable securities laws.
5. The execution, delivery and performance of the Agreements to
which the Depositor is a party by the Depositor, the consummation of
the transactions contemplated hereby and thereby, and the issuance
and delivery of the Notes do not and will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a
material adverse effect on the business, operations or financial
condition of the Depositor, nor will such actions result in a
violation of the provisions of the certificate of incorporation or
by-laws of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on
the business, operations or financial condition of the Depositor.
6. The directions by the Depositor to the Trustees to execute,
issue, authenticate and deliver the Notes have been duly authorized
by the Depositor and, assuming that the Trustees have been duly
authorized to do so, when executed, authenticated and delivered by
the Indenture Trustee in accordance with the Indenture, the Notes
will be validly issued and outstanding and will be entitled to the
benefits of the Indenture.
7. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Securities,
and the sale of the Notes to the Underwriters, or the consummation
by the Depositor of the other transactions contemplated by the
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as may be required State securities
or Blue Sky laws in connection with the purchase and distribution of
the Notes by the Underwriters or as have been previously obtained.
8. There are not, to the best of such counsel's knowledge, after
reasonable independent investigation, any actions, proceedings or
investigations pending with respect to which the Depositor has
received service of process before or,
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threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is
the subject: (a) which if determined adversely to the Depositor
would have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of the Agreements or the Notes; (c) seeking to
prevent the issuance of the Notes or the consummation by the
Depositor of any of the transactions contemplated by the Agreements;
or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or
enforceability of, the Agreements or the Notes.
9. The execution of the Loan Sale Agreement is sufficient to convey
all of IMC's right, title and interest in the Home Equity Loans to
the Depositor and following the consummation of the transaction
contemplated by Section 2 of the Loan Sale Agreement, the transfer
of the Home Equity Loans by IMC to the Depositor is a sale thereof.
H. The documents listed in Schedule B hereto shall have been executed and
delivered and the Underwriters shall be entitled to rely on any such
opinions as though the same were addressed to the Underwriters.
I. The Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger, counsel to the Owner Trustee, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that:
1. The Owner Trustee is a Delaware banking corporation duly
incorporated and validly existing under the laws of the State of
Delaware.
2. The Owner Trustee has the full power and authority to accept the
office of owner trustee under the Trust Agreement and to enter into
and perform its obligations under the Trust Agreement and the
transactions contemplated thereby.
3. The execution and delivery of the Trust Agreement by the Owner
Trustee and the performance by the Owner Trustee of its obligations
under the Trust Agreement have been duly authorized by all necessary
action of the Owner Trustee and the Trust Agreement has been duly
executed and delivered by the Owner Trustee.
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4. The Trust Agreement constitutes valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in
accordance with its terms, except as the enforceability thereof may
be (a) limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the rights
of creditors generally, and (b) subject to general principals of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5. The execution and delivery by the Owner Trustee of the Trust
Agreement and the consummation of the transactions contemplated
thereby do not require any consent, approval or authorization of, or
any registration or filing with, any applicable governmental
authority of the State of Delaware which has not been obtained or
done.
6. Neither the consummation by the Owner Trustee of the transactions
contemplated in the Trust Agreement, nor the fulfillment of the
terms thereof by the Owner Trustee will conflict with, result in a
breach or violation of, or constitute a default under the Articles
of Association, By-Laws or other organizational documents of the
Owner Trustee
J. The Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Issuer dated the Closing Date, in
form and substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that:
1. The Trust Agreement is the legal, valid and binding agreement of
the Owner Trustee, and the Depositor, enforceable against the Owner
Trustee, and the Depositor in accordance with its terms subject to
(i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
2. The Certificate of Trust has been duly filed with the Secretary
of State of the State of Delaware. The Issuer as been duly formed
and is validly existing as a business trust under the Delaware
Business Trust Act.
3. The Issuer has the power and authority under the Trust
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Agreement and the Delaware Business Trust Act to execute, deliver
and perform its obligations under the Trust Agreement, the
Indenture, the Sale and Servicing Agreement, the Notes and the
Residual Interests and to issue the Securities.
4. The Issuer has duly authorized and executed the Trust Agreement,
the Indenture, the Sale and Servicing Agreement, the Notes and the
Residual Interests.
5. The Trust has the power under the Trust Agreement and the
Delaware Business Trust Act to pledge the Trust Estate to the
Indenture Trustee as security for the Notes.
6. The Notes have been executed, authorized and delivered by the
Owner Trustee upon the order of the Depositor in accordance with the
Trust Agreement and the Indenture.
7. To the extent that Article 9 of the Uniform Commercial Code as in
effect in the State of Delaware (the "Delaware UCC") is applicable
(without regard to conflicts of laws principles), and assuming that
the security interest created by the Indenture in the Collateral has
been duly created and has attached, upon the filing of a UCC-1
financing statement with the Secretary of State of the State of
Delaware, the Indenture Trustee will have a perfected security
interest in such Collateral and the proceeds thereof; and such
security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding purchase
money security interests under Section 9-312 of the Delaware UCC and
temporarily perfected security interests in proceeds under
Section 9-306 of the Delaware UCC.
8. No re-filing or other action is necessary under the Delaware UCC
in the State of Delaware in order to maintain the perfection of the
security interest referenced above except for the filing of
continuation statements at five-year intervals.
9. Under Section 3805(b) of the Delaware Business Trust Act, no
creditor of any holder of the Residual Interest shall have any right
to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and
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similar laws relating to and affecting the rights and remedies of
creditors generally, (ii) principles of equity (regardless of
whether considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
10. Under Section 3805(c) of the Delaware Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good title to
the Home Equity Loans to the Issuer as a true sale and not as a
security arrangement, the Issuer, rather than the holders of the
Residual Interest, is the owner of the Home Equity Loans subject to
(i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
11. The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Issuer, of the Indenture and the
Sale and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any
governmental authority of the State of Delaware, except for the
filing of the Certificate of Trust with the Secretary of State.
12. Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf of
the Trust, the transactions contemplated by the Trust Agreement,
Indenture and the Sale and Servicing Agreement nor the fulfillment
of the terms thereof by the Owner Trustee will conflict with or
result in a breach or violation of any law of the State of Delaware.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
Federal law of the United States of America and the laws of the State of
Delaware.
K. The Underwriters shall have received the favorable opinion dated the
Closing Date, from in-house counsel to the Note Insurer, in form and scope
satisfactory to counsel for the Underwriters, substantially to the effect
that:
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1. The Note Insurer is a monoline insurance company duly
incorporated, validly existing, and in good standing under the laws
of the State of New York. The Note Insurer is validly licensed and
authorized to issue the Insurance Policy and perform its obligations
under the Insurance Agreement in accordance with the terms thereof,
under the laws of the State of New York.
2. The Note Insurer has the corporate power to execute and deliver,
and to take all action required of it under the Insurance Agreement
and the Insurance Policy.
3. The execution, delivery and performance by the Note Insurer of
the Insurance Policy, the Indemnification Agreement and Insurance
Agreement does not require the consent or approval of, the giving of
notice to, the prior registration with, or the taking of any other
action in respect of any state or other governmental agency or
authority which has not previously been obtained or
effected.
4. The Insurance Policy, the Indemnification Agreement and Insurance
Agreement have been duly authorized, executed and delivered by the
Note Insurer and constitute the legal, valid and binding agreement
of the Note Insurer, enforceable against the Note Insurer in
accordance with its terms subject, as to enforcement, to (x)
bankruptcy, reorganization, insolvency, moratorium and other similar
laws relating to or affecting the enforcement of creditors' rights
generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and
equitable subordination, presently or from time to time in effect
and general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to the
Note Insurer and (y) the qualification that the remedy of specific
performance and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceedings with respect thereto may be brought.
5. To the extent the Insurance Policy constitutes a security within
the meaning of Section 2(1) of the Securities Act, it is a security
that is exempt from the registration requirements of the Act.
6. The information set forth under the caption, "The Note Insurer"
in the Prospectus Supplement, insofar as such information
constitutes a description of the Insurance Policy, accurately
summarizes such Insurance Policy.
L. The Underwriters shall have received the favorable opinion of
counsel to the
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Indenture Trustee, dated the Closing Date, addressed to the Underwriters
and in form and scope satisfactory to counsel to the Underwriters, to the
effect that:
1. The Indenture Trustee is a banking corporation duly incorporated
and validly existing under the laws of the State of New York.
2. The Indenture Trustee has the full corporate trust power to
execute, deliver and perform its obligations under the Indenture
3. The execution and delivery by the Indenture Trustee of the
Indenture and the performance by the Indenture Trustee of its
obligations under the Indenture have been duly authorized by all
necessary corporate action of the Indenture Trustee.
4. The Indenture is a valid and legally binding obligation of the
Indenture Trustee enforceable against the Trustee.
5. The execution and delivery by the Indenture Trustee of the
Indenture does not (a) violate the Organization Certificate of the
Trustee or the Bylaws of the Indenture Trustee, (b) to such
counsel's knowledge, violate any judgment, decree or order of any
New York or United States federal court or other New York or United
States federal governmental authority by which the Indenture Trustee
is bound or (c) assuming the non-existence of any judgment, decree
or order of any court or other governmental authority that would be
violated by such execution and delivery, violate any New York or
United States federal statute, rule or regulation or require any
consent, approval or authorization of any New York or United States
federal court or other New York or United States federal
governmental authority.
6. The Notes have been duly authenticated and delivered by the
Indenture Trustee.
7. If the Indenture Trustee were acting as Servicer under Sale and
Servicing Agreement as of the date of such opinion, the Indenture
Trustee would have the full corporate trust power to perform the
obligations of the Servicer under the Sale and Servicing Agreement;
and
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or
affecting the Indenture Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
decided adversely to the Indenture Trustee, would materially and
adversely affect the ability of the Indenture
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Trustee to carry out the transactions contemplated in the Indenture.
M. The Underwriters shall have received the favorable opinion or opinions,
dated the date of the Closing Date, of counsel for the Underwriters, with
respect to the issue and sale of the Notes, the Registration Statement,
this Agreement, the Prospectus and such other related matters as the
Underwriters may reasonably require.
N. The Depositor and IMC shall each have furnished to the Underwriters a
certificate, dated the Closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in the
Agreements to which it is a party are true and correct as of the
Closing Date; and such entity has complied with all agreements
contained herein which are to have been complied with on or prior to
the Closing Date.
2. The information contained in the Prospectus relating to such
entity and the Home Equity Loans is true and accurate in all
material respects and nothing has come to his or her attention that
would lead such officer to believe that the Registration statement
or the Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein not misleading.
3. There has been no amendment or other document filed affecting the
Certificate of Incorporation or bylaws of the Depositor since
November 10, 1994 or the formation documents of IMC since October
19, 1990 and no such amendment has been authorized. No event has
occurred since December 1, 1997 which has affected the good standing
of such entities under the laws of the State of Delaware.
4. There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of such entity from September 30, 1997.
In addition to the foregoing, the IMC certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H, L,
M, P and Q of this Agreement are made by IMC instead of the Depositor and
are true as to IMC as though such representations and warranties were
fully set forth in such certificate.
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O. The Indenture Trustee shall have furnished to the Underwriters a
certificate of the Indenture Trustee, signed by one or more duly
authorized officers of the Indenture Trustee, dated the Closing Date, as
to the due authorization, execution and delivery of the Indenture by the
Indenture Trustee and the acceptance by the Indenture Trustee of the
trusts created thereby and the due authentication and delivery of the
Notes by the Indenture Trustee thereunder and such other matters as the
Representative shall reasonably request.
P. The Notes shall have been rated in the respective rating categories and
by the nationally recognized statistical rating organizations described in
the Prospectus Supplement under "Ratings."
Q. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
have requested not less than three full business days prior to the Closing
Date.
R. Prior to the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Notes as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Depositor in connection with the issuance
and sale of the Notes as herein contemplated shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters.
S. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States; or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States
shall be such) as to make it in each of the instances set forth in clauses
(i), (ii), (iii) and (iv) herein, in the reasonable judgment of the
Underwriters, impractical or inadvisable to proceed with the public
offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
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T. The Underwriters shall have received from Coopers & Xxxxxxx LLP and
Deloitte & Touche LLP, certified public accountants, a letter dated the
date of the Prospectus Supplement and a letter dated the date hereof and
satisfactory in form and substance to the Underwriters and their counsel,
to the effect that they have performed certain specified procedures, all
of which have been agreed to by the Underwriters, as a result of which
they determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement on the cover
page thereof and under the captions "Summary of Terms - The Home Equity
Loans", "Risk Factors Risk of Home Equity Loan Coupon Rates Reducing the
Note Rate," "The Seller and Servicer - General", "The Seller and Servicer
- Delinquency, Loan Loss and Foreclosure Information" and "The Home Equity
Loan Pool - General," agrees with the records of the Depositor excluding
any questions of legal interpretation.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor at any time at or prior to the closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Notes and any
taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the fees and expenses
of qualifying the Notes under the securities laws of the several jurisdictions
designated by the Underwriters as provided in Section 5(H) hereof and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by securities rating services for rating the
Notes; (g) the costs of the accountant's letters referred to in Section 6(R)
hereof; and (h) all other costs and expenses incident to the performance of the
obligations of the Depositor (including costs and expenses of your counsel);
provided that, except as provided in this Section 7, the Underwriters shall pay
their own costs and expenses, including the costs and expenses of their counsel,
any transfer taxes on the Notes which they may sell and the expenses of
advertising any offering of the Notes made by the Underwriters, and the
Underwriters shall pay the cost of any accountant's letters relating to any
Computational Materials (as defined in Section 5(E) hereof).
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If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & Xxxxx LLP, counsel for
the Underwriters.
SECTION 8 Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Notes), to which such Underwriter or any such controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any controlling person of any of such Underwriter. The
only information furnished by the Underwriters or on behalf of the Underwriters
for use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a
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material fact contained in the Registration Statement, or any amendment thereof
or supplement thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Depositor by or
on behalf of such Underwriter specifically for inclusion therein, and shall
reimburse the Depositor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Depositor or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Depositor or any such director, officer or controlling person. The only
information furnished by the Underwriters or on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been
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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 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
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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 Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(C), in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Depositor on the one hand
and the related Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
The relative benefits of the Depositor and an Underwriter shall be deemed
to be in such proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions as set forth on the cover page of the Prospectus
Supplement received by such Underwriter.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by
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such indemnified party in connection with investigating or defending any such
action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the amount of the underwriting discounts
and commissions received by such Underwriter in connection with its purchase of
the Notes. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Computational Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section 8(D) for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K --
Computational Materials; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by or on behalf of the Seller and Servicer
concerning the assets comprising the Trust Estate.
H. The Seller and Servicer agrees to indemnify each indemnified party
referred to in Section 8(A) hereof with respect to Seller Provided Information
to the same extent as the indemnity granted under such section. The procedures
set forth in Section 8(C) shall be equally applicable to this Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement, the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement and the Computational
Materials (other than to the extent such information is based on Seller Provided
Information) furnished by such Underwriter is correct, and the parties hereto
acknowledge that such information constitutes the only information furnished in
writing by or on behalf of any Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus.
SECTION 9 Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling persons
thereof, or by or on behalf of the Depositor and shall survive delivery of any
Notes to the Underwriters.
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SECTION 10 Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Notes shall fail at
the Closing Date to purchase the Notes which it is (or they are) obligated to
purchase hereunder (the "Defaulted Notes"), then the non-defaulting Underwriters
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth. If, however, the
Underwriters have not completed such arrangements within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not exceed
10% of the aggregate principal amount of the Notes to be purchased
pursuant to this Agreement, the non-defaulting Underwriters named in this
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all such non-defaulting Underwriters,
or
(ii) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Notes to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this Section
10, each of the Underwriters and the Depositor shall have the right to postpone
the Closing Date for a period not exceeding five Business Days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11 Termination of Agreement. The Underwriters may terminate this
Agreement immediately upon notice to the Depositor, at any time at or prior to
the Closing Date if any of the events or conditions described in Section 6(S) of
this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12 Obligations of IMC. IMC agrees with the Underwriters, for the
sole and exclusive benefit of each such Underwriter and each person controlling
such Underwriter within the meaning of the Securities Act and not for the
benefit of any assignee thereof or any other person or persons dealing with such
Underwriter, in consideration of and as an inducement to their agreement to
purchase the Notes from the Depositor, to indemnify and hold harmless each
Underwriter against any failure by the Depositor to perform its obligations to
the
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Underwriters hereunder, including, without limitation, any failure by the
Depositor to honor any obligation to any Underwriter pursuant to Section 8
hereof.
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxx, 11th Floor
(Fax: 000-000-0000) with a copy to Xxxx Xxxxxx, 12th Floor, at the same
address ;and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of IMC Securities, Inc., 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000-0000 Attention: Xxxxxx Xxxxxxxxx (Fax: (813)
000-0000).
SECTION 14 Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15 Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17 Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York without giving effect to the conflict of law rules thereof.
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The parties hereto hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York and any court in the State
of New York located in the city and County of New York, and appellate court from
any thereof, in any action, suit or proceeding brought against it or in
connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 18 Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION 19 Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Depositor,
IMC and the Underwriters, please indicate your acceptance in the space provided
for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Office
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/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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SCHEDULE A
----------
Underwriters Principal Amount
------------ ----------------
PaineWebber Incorporated. $153,892,629
Bear, Xxxxxxx & Co. Inc. $153,892,628
Total $307,785,257
Purchase Price Percentage
-------------------------
99.75%
Selling Concession Reallowance Discount
------------------ --------------------
0.18% 0.04%
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SCHEDULE B
(a) An Issuer Order authorizing the authentication and delivery of the
Notes by the Indenture Trustee.
(b) All of the items of Collateral which shall be delivered to the
Indenture Trustee or its designee.
(c) An executed counterpart of the Trust Agreement.
(d) Opinions of Counsel addressed to the Indenture Trustee and the Note
Insurer to the effect that:
(i) all instruments furnished to the Indenture Trustee as
conditions precedent to the authentication of the Notes by the
Indenture Trustee pursuant to the Indenture conform to the
requirements of the Indenture and constitute all the documents
required to be delivered thereunder for the Indenture Trustee
to authenticate the Notes;
(ii) all conditions precedent provided for in the Indenture
relating to the authentication of the Notes have been complied
with;
(iii) the Owner Trustee has power and authority to execute, deliver
and perform its obligations under the Trust Agreement;
(iv) the Issuer has been duly formed, is validly existing as a
business trust under the laws of the State of Delaware, 12
Del. C. Section 3801, et seq., and has power, authority and
legal right to execute and deliver the Indenture, the
Insurance Agreement and the Sale and Servicing Agreement;
(v) assuming due authorization, execution and delivery thereof by
the Indenture Trustee, the Indenture is the valid, legal and
binding obligation of the Issuer, enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent or
preferential conveyance and other similar laws of general
application affecting the rights of creditors generally and to
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(vi) the Notes, when executed and authenticated as provided herein
and delivered against payment therefor, will be the valid,
legal and binding
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obligations of the Issuer pursuant to the terms of the
Indenture, entitled to the benefits of the Indenture, and will
be enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent or preferential conveyance and other
similar laws of general application affecting the rights of
creditors generally and to general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(vii) the Trust Agreement authorizes the Issuer to Grant the
Collateral to the Indenture Trustee as security for the Notes
and the Owner Trustee has taken all necessary action under the
Trust Agreement to Grant the Collateral to the Indenture
Trustee;
(viii)the Indenture has been duly qualified under the Trust
Indenture Act and the Notes have been registered under the
Securities Act;
(ix) the Indenture, together with the Grant of the Collateral to
the Indenture Trustee, creates a valid security interest in
the Collateral in favor of the Indenture Trustee for the
benefit of the Owners;
(x) such action has been taken with respect to delivery of
possession of the Collateral, and with respect to the
execution and filing of the Indenture and any financing
statements as are necessary to make effective and to perfect a
first priority security interest created by the Indenture in
the Collateral in favor of the Indenture Trustee, except that
with respect to the Mortgage Notes, possession of such
Mortgage Notes must be maintained by the Indenture Trustee or
an agent of the Indenture Trustee (other than the Issuer, an
Affiliate of the Issuer, or a "securities intermediary," as
defined in Section 8.102 of the UCC); and
(xi) no authorization, approval or consent of any governmental body
having jurisdiction in the premises which has not been
obtained by the Issuer is required to be obtained by the
Issuer for the valid issuance and delivery of the Notes,
except that no opinion need be expressed with respect to any
such authorizations, approvals or consents as may be required
under any state securities "blue sky" laws.
(e) An Officer's Certificate complying with the requirements of Section
11.1 of the Indenture and stating that:
(i) the Issuer is not in Default under this Indenture and the
issuance of the Notes applied for will not result in any
breach of any of the terms,
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conditions or provisions of, or constitute a default under,
the Trust Agreement, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Issuer is a party
or by which it is bound, or any order of any court or
administrative agency entered in any proceeding to which the
Issuer is a party or by which it may be bound or to which it
may be subject, and that all conditions precedent provided in
the Indenture relating to the authentication and delivery of
the Notes applied for have been complied with;
(ii) the Issuer is the owner of all of the Home Equity Loans, has
not assigned any interest or participation in the Home Equity
Loans (or, if any such interest or participation has been
assigned, it has been released) and has the right to Grant all
of the Home Equity Loans to the Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all of its
right, title, and interest in the Collateral, and has
delivered or caused the same to be delivered to the Indenture
Trustee;
(iv) attached thereto are true and correct copies of letters signed
by Xxxxx'x and Standard & Poor's confirming that the Notes
have been rated "Aaa" and "AAA" by Xxxxx'x and Standard &
Poor's, respectively; and
(v) all conditions precedent provided for in the Indenture
relating to the authentication of the Notes have been complied
with.
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