EXECUTION COPY
$310,000,000
IMC HOME EQUITY LOAN TRUST 1996-4
IMC Home Equity Loan Pass-Through Certificates,
Series 1996-4
UNDERWRITING AGREEMENT
October 18, 1996
BEAR, XXXXXXX & CO. INC.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized the issuance and sale of IMC Home Equity Loan Pass-Through
Certificates, Series 1996-4 consisting of (a) the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates and the Class A-6 Certificates (the "Offered
Certificates"), (b) the Class S Certificates (the "Class S Certificates") and
(c) the Class R Certificates (the "Class R Certificates," and collectively with
the Class S Certificates and the Offered Certificates, the "Certificates"),
evidencing interests in a pool of fixed rate home equity loans (the "Home Equity
Loans"). The Offered Certificates will represent undivided ownership interests
in the Home Equity Loans, which are secured by first and second lien mortgages
or deeds of trust primarily on one- to four-family residential properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto (the "Underwriters"), and the Underwriters are
purchasing, severally, only the Offered Certificates set forth opposite their
names in Schedule A, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. Bear, Xxxxxxx & Co. Inc.
is acting as representative of the several Underwriters and in such capacity, is
hereinafter referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of October 1, 1996 among the
Depositor, Industry Mortgage Company, L.P. ("IMC"), as seller and as servicer
(in such capacity, the "Servicer" or the "Seller," as the case may
be), and The Chase Manhattan Bank, as trustee (the "Trustee"). The general
partner of the Seller and Servicer is Industry Mortgage Corporation (the
"General Partner"). The Certificates will evidence fractional undivided
interests in the trust (the "Trust"). The assets of the Trust will initially
include, among other things, a pool of fixed rate Home Equity Loans (the
"Initial Home Equity Loans") and such amounts as may be held by the Trustee in
the Pre-Funding Account (the "Pre-Funding Account"), the Capitalized Interest
Account (the "Capitalized Interest Account") and any other accounts held by the
Trustee for the Trust. On the Closing Date, $89,516.02 will be deposited in the
name of the Trustee in the Pre-Funding Account to be used to acquire Subsequent
Home Equity Loans. It is intended that additional Home Equity Loans satisfying
the criteria specified in the Pooling and Servicing Agreement (the "Subsequent
Home Equity Loans") will be purchased by the Trust for inclusion in the Trust
from the Depositor from time to time on or before October 31, 1996 from funds on
deposit in the Pre-Funding Account at the time of execution and delivery of each
Subsequent Transfer Agreement ("Subsequent Transfer Agreement"). Funds in the
Capitalized Interest Account will be applied by the Trustee to cover shortfalls
in interest during the Funding Period. The Offered Certificates will initially
represent an undivided ownership interest in the sum of (i) the Initial Home
Equity Loans in an amount of $309,910,483.98 as of the close of business on
October 1, 1996 (the "Cut-Off Date") and (ii) $89,516.02 on deposit in the
Pre-Funding Account. The Offered Certificates will also have the benefit of an
insurance policy (the "Insurance Policy") issued by Financial Security Assurance
Inc., a monoline insurance company incorporated in New York (the "Certificate
Insurer"). The Insurance Policy will be issued pursuant to the insurance
agreement (the "Insurance Agreement") among the Certificate Insurer, the
Depositor and the Trustee. A form of the Pooling and Servicing Agreement has
been filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, IMC will transfer to the Depositor and
the Depositor will transfer to the Trust all of their right, title and interest
in and to the unpaid principal balances of the Initial Home Equity Loans as of
the Cut-Off Date and the collateral securing each Initial Home Equity Loan.
SECTION 1 Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriters that:
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A. A Registration Statement on Form S-3 (No. 333-4911) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act and (iii) become effective
under the Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such Registration
Statement, or the most recent post-effective amendment thereto, if any,
was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents incorporated by
reference therein at such time; and "Basic Prospectus" means such final
prospectus dated July 23, 1996; and "Prospectus Supplement" means the
final prospectus supplement relating to the Offered Certificates, to be
filed with the Commission pursuant to paragraph (2), (3) or (5) of Rule
424(b) of the Rules and Regulations. "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. Reference made herein
to the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the date of the Prospectus and any reference to
any amendment or supplement to the Prospectus shall be deemed to refer to
and include any document filed under the Securities Exchange Act of 1934
(the "Exchange Act") after the date of the Prospectus, and incorporated by
reference in the Prospectus and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the
Depositor filed with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. The Commission has not issued any
order preventing or suspending the use of the Prospectus. There are no
contracts or documents of the Depositor which are required to be filed as
exhibits to the Registration Statement pursuant to the Securities Act or
the Rules and Regulations which have not been so filed or incorporated by
reference therein on or prior to the Effective Date of the Registration
Statement other than such documents or materials, if any, as any
Underwriter delivers to the Depositor pursuant to Section 8(D) hereof for
filing on Form 8-K. The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the
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Registration Statement or the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform in all
respects to the requirements of the Securities Act and the Rules and
Regulations. The Registration Statement, as of the Effective Date thereof
and of any amendment thereto, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus as of its date, and as amended or supplemented as of the
Closing Date, does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Depositor in writing by the
Underwriters expressly for use therein. The only information furnished by
the Underwriters or on behalf of the Underwriters for use in connection
with the preparation of the Registration Statement or the Prospectus is
described in Section 8(I) hereof.
C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation is made as to 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
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adverse change in the general affairs, management, financial condition, or
results of operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is in good standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business requires
such qualification, and has all power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement, the Pooling
and Servicing Agreement and the Insurance Agreement or any Subsequent
Transfer Agreement and to cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject
(a) which if determined adversely to the Depositor would have a material
adverse effect on the business or financial condition of the Depositor,
(b) asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement, the Certificates, or any Subsequent
Transfer Agreement, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the
transactions contemplated by the Pooling and Servicing Agreement, the
Insurance Agreement, this Agreement or any Subsequent Transfer Agreement,
as the case may be, or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, this Agreement,
and the Insurance Agreement, the Certificates, or any Subsequent Transfer
Agreement.
G. This Agreement has been, and the Pooling and Servicing Agreement, each
Subsequent Transfer Agreement and the Insurance Agreement when executed
and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Depositor, and this Agreement
constitutes, and the Pooling and Servicing Agreement and the Insurance
Agreement when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency
moratorium or other similar laws
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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 Insurance Agreement, limitations of public policy under applicable
securities laws.
H. The execution, delivery and performance of this Agreement, the Pooling
and Servicing Agreement, any Subsequent Transfer Agreement and the
Insurance Agreement by the Depositor and the consummation of the
transactions contemplated hereby and thereby, and the issuance and
delivery of the Certificates do not and will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a
party, by which the Depositor is bound or to which any of the properties
or assets of the Depositor or any of its subsidiaries is subject, which
breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor, nor will such actions
result in any violation of the provisions of the articles of incorporation
or by-laws of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Depositor or any of its properties or assets, which breach or
violation would have a material adverse effect on the business, operations
or financial condition of the Depositor.
I. The Depositor has no reason to believe that Xxxxxxx & Xxxxxxx L.L.P.
are not independent public accountants with respect to the Depositor as
required by the Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute, authenticate,
issue and deliver the Certificates has been duly authorized by the
Depositor, and assuming the Trustee has been duly authorized to do so,
when executed, authenticated, issued and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Certificates will
be validly issued and outstanding and will be entitled to the benefits
provided by the Pooling and Servicing Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Certificates and the
sale of the Offered Certificates to the Underwriters, or the consummation
by the Depositor of the other transactions contemplated by this Agreement,
the Pooling and Servicing
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Agreement, any Subsequent Transfer Agreement and the Insurance Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Offered
Certificates by the Underwriters or as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and the Depositor has
not received notice of any proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which
if decided adversely to the Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Initial Home
Equity Loans conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person any of its
right or title in the Initial Home Equity Loans, in the Pooling and
Servicing Agreement or in the Certificates being issued pursuant thereto;
and (iii) have the power and authority to sell its interest in the Initial
Home Equity Loans to the Trustee and to sell the Offered Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to
the Home Equity Loans. Upon delivery to the Underwriters of the Offered
Certificates, the Underwriters will have good title to the Offered
Certificates, free of any Liens.
N. At the time of execution and delivery of any Subsequent Transfer
Agreement, the Depositor will: (i) have good title in the Subsequent Home
Equity Loans conveyed by the Seller, free and clear of any Liens; (ii) not
have assigned to any person any of its right or title in the Subsequent
Home Equity Loans, in the Pooling and Servicing Agreement or in the
Certificates being issued pursuant thereto; and (iii) have the power and
authority to sell the Subsequent Home Equity Loans to the Trustee. Upon
execution and delivery of the Subsequent Transfer Agreement by the
Trustee, the Trustee will have acquired beneficial ownership of all of the
Depositor's right, title and interest in and to the Subsequent Home Equity
Loans.
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O. As of the Cut-Off Date, each of the Initial Home Equity Loans will meet
the eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
P. As of any Subsequent Transfer Date, each of the Subsequent Home Equity
Loans will meet the eligibility criteria described in the prospectus and
will conform to the descriptions thereof contained in the Prospectus.
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such
term under the Investment Company Act of 1940 (the "1940 Act") and the
rules and regulations of the Commission thereunder.
R. At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
S. At the Closing Date, the Offered Certificates shall have been rated in
the highest rating category by at least two nationally recognized rating
agencies.
T. Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement and the Certificates have
been paid or will be paid at or prior to the Closing Date.
U. At the Closing Date, each of the representations and warranties of the
Depositor set forth in the Pooling and Servicing Agreement and the
Insurance Agreement will be true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to the
Representative or counsel for the Representative in connection with an offering
of the Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections 10 and 11 hereof) to purchase from the Depositor the
aggregate initial
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principal amounts or percentage interests of the Offered Certificates set forth
opposite their names on Schedule A, at the purchase price or prices set forth in
Schedule A. The Underwriters may offer the Offered Certificates to certain
dealers at such prices less a concession not in excess of the respective amounts
set forth in Schedule A. The Underwriters may allow and such dealers may reallow
a discount to certain dealers not in excess of the respective amounts set forth
in Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
Stroock & Stroock & Xxxxx, Seven Hanover Square, New York, New York 10004, or at
such other place as shall be agreed upon by the Representative and the Depositor
at 10:00 A.M. New York City time on October 25, 1996 or at such other time or
date as shall be agreed upon in writing by the Representative and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Offered Certificates shall be made to the
Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Representative may request in
writing at least two business days prior to the Closing Date. The Offered
Certificates will be made available for examination by the Representative no
later than 2:00 P.M. New York City time on the first business day prior to the
Closing Date.
SECTION 4 Offering by the Underwriters. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the Offered
Certificates for sale to the public as set forth in the Prospectus.
SECTION 5 Covenants of the Depositor and IMC. The Depositor and, to the
extent the provisions of Section I. below relate to IMC, IMC each agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriters to make
no further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective prior to the Closing Date or any supplement to the
Prospectus or any amended Prospectus has been filed prior to the Closing
Date and to furnish the Underwriters with copies thereof; to file
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promptly all reports and any definitive proxy or information statements
required to be filed by the Depositor with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Offered
Certificates; to promptly advise the Underwriters of its receipt of notice
of the issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of the Prospectus; (ii) the suspension of
the qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any
such purpose; (iv) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any stop order or
of any order preventing or suspending the use of the Prospectus or
suspending any such qualification, the Depositor promptly shall use its
best efforts to obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits);
(ii) the Prospectus and any amended or supplemented Prospectus; and (iii)
any document incorporated by reference in the Prospectus (including
exhibits thereto). If the delivery of a prospectus is required at any time
prior to the expiration of nine months after the Effective Time in
connection with the offering or sale of the Offered Certificates, and if
at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, the Depositor
shall notify the Underwriters and, upon the Underwriters' request, shall
file such document and
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prepare and furnish without charge to the Underwriters and to any dealer
in securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such
compliance, and in case the Underwriters are required to deliver a
Prospectus in connection with sales of any of the Offered Certificates at
any time nine months or more after the Effective Time, upon the request of
the Underwriters but at their expense, the Depositor shall prepare and
deliver to the Underwriters as many copies as the Underwriters may
reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may,
in the judgment of the Depositor or the Underwriters, be required by the
Securities Act or requested by the Commission.
E. The Depositor will cause any Computational Materials (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
letter dated May 27, 1994 issued by the Division of Corporation Finance of
the Commission to the Public Securities Association (together, the "Xxxxxx
Letters") for which the filing of such material is a condition of the
relief granted in such letters.
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F. To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters
for the filing of the following documents relating to the Certificates:
(i) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or
(ii) Prospectus pursuant to Rule 424 of the Rules and Regulations.
G. To make generally available to holders of the Offered Certificates as
soon as practicable, but in any event not later than 90 days after the
close of the period covered thereby, a statement of earnings of the Trust
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the
Depositor, Rule 158) and covering a period of at least twelve consecutive
months beginning not later than the first day of the first fiscal quarter
following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States or elsewhere as the Underwriters may designate, and maintain
or cause to be maintained such qualifications in effect for as long as may
be required for the distribution of the Offered Certificates. The
Depositor will file or cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Offered
Certificates have been so qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates backed by home equity loans or other
similar securities representing interest in or secured by other
mortgage-related assets originated or owned by the Depositor or IMC shall
be publicly offered, sold nor shall the Depositor or IMC enter into any
contractual arrangements that contemplate the public offering or sale of
such securities for a period of seven (7) business days following the
commencement of the offering of the Offered Certificates to the public.
J. So long as the Offered Certificates shall be outstanding the Depositor
shall cause the Trustee, pursuant to the Pooling and Servicing Agreement,
to deliver to the Underwriters as soon as such statements are furnished to
the Owners: (i) the annual statement as to compliance delivered to the
Trustee pursuant to Section 8.16 of the Pooling and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 8.17 of the Pooling and
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Servicing Agreement; (iii) the monthly servicing report furnished to the
Trustee pursuant to Section 7.08 of the Pooling and Servicing Agreement;
and (iv) the monthly reports furnished to the Certificateholders pursuant
to Section 7.09 of the Pooling and Servicing Agreement.
K. To apply the net proceeds from the sale of the Offered Certificates in
the manner set forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Offered Certificates pursuant to this Agreement
are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor and IMC herein
contained; (ii) the performance by the Depositor of all of its obligations
hereunder; and (iii) the following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of Stroock & Stroock & Xxxxx, counsel for the Underwriters, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the Certificates, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be satisfactory in all respects to the Underwriters and their counsel, and
the Depositor shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
X. Xxxxx & Xxxxxx shall have furnished to the Underwriters their written
opinion, as counsel to the Depositor, addressed to the Underwriters and
dated the
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Closing Date, in form and substance satisfactory to the Underwriters, to
the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have become
effective under the 1933 Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical
information contained therein, as to which such counsel need express
no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and
regulations thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to
be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Certificates" and "Administration" and
in the Prospectus Supplement under the captions "Description of the
Class A Certificates" and "The Pooling and Servicing Agreement," to
the extent such statements purport to summarize certain provisions
of the Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations" and "Federal
Income Tax Consequences" to the extent that they constitute matters
of federal law, provide a fair and accurate summary of such law or
conclusions.
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6. The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus and
is not required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be registered
under the Investment Company Act of 1940, as amended.
7. Neither the Depositor nor the Trust is an "investment company" or
under the "control" of an "investment company" as such terms are
defined in the 1940 Act.
8. Assuming that (a) the Trustee causes each of the Base REMIC and
the Upper-Tier REMIC), as the Trustee has covenanted to do in the
Pooling and Servicing Agreement, to be treated as a "real estate
mortgage investment conduit" (the "REMIC"), as such term is defined
in the Internal Revenue Code of 1986, as amended (the "Code") and
(b) the parties to the Pooling and Servicing Agreement comply with
the terms thereof, the Offered Certificates will be treated as
"regular interests" in the Upper-Tier REMIC, the Base REMIC Regular
Interests will be treated as "regular interests" in the Base REMIC,
the Class R Certificate will constitute the sole class of "residual
interest" in the Upper-Tier REMIC and the Base REMIC Residual Class
will constitute the sole class of "residual interest" in the Base
REMIC. The Trust is not subject to tax upon its income or assets by
any taxing authority of the State of New York.
9. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect
the status of the Upper-Tier REMIC or the Base REMIC (exclusive of
the Pre-Funding Account and the Capitalized Interest
Account) as a REMIC.
10. As a consequence of the qualification of each of the Upper-Tier
REMIC and the Base REMIC as a REMIC, the Offered Certificates will
be treated as "qualifying real property loans" under Section 593(d)
of the Code, "regular. . . interest(s) in a REMIC" under Section
7701(a)(19)(C) of the Code and "real estate assets" under Section
856(c) of the Code in the same proportion that the assets in the
Trust consist of qualifying assets under such Sections. In addition,
as a consequence of the qualification of each of the Upper-Tier
REMIC and the Base REMIC as a REMIC, interest on the Offered
Certificates will be treated as "interest on obligations secured by
mortgages on real property" under Section 856(c) of
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the Code to the extent that such Offered Certificates are treated as
"real estate assets" under Section 856(c) of the Code.
11. The Certificates will, when issued, conform to the description
thereof contained in the Prospectus.
12. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and delivered to the Underwriters and paid for
in accordance with the Underwriting Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the closing Date, in
form and substance satisfactory to the Underwriters to the effect that no
facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (except
as to financial or statistical data contained in the Registration
Statement); (b) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to statements set
forth in the Prospectus Supplement under the Captions "Credit Enhancement"
and "The Certificate Insurer"); 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 the Certificate Insurer,
Standard & Poor's Ratings Group, Xxxxx'x Investors Service, Inc. and the
Underwriters, with respect to certain matters relating to the transfer of
the Initial Home Equity Loans to the Depositor and from the Depositor to
the Trust, and such counsel shall have consented to the reliance on such
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opinion by the Certificate Insurer, Standard & Poor's Ratings Group,
Xxxxx'x Investors Service, Inc. and the Underwriters as though such
opinion had been addressed to each such party.
X. Xxxxx & Xxxxxx, special counsel for the General Partner and IMC, in the
latter's capacity as both Seller and Servicer under the Pooling and
Servicing Agreement, shall have furnished to the Underwriters their
written opinion, addressed to the Underwriters and the Depositor and dated
the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. IMC has been duly formed as a limited partnership and is validly
existing in good standing under the laws of the State of Delaware.
2. The General Partner has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has duly authorized all actions contemplated
hereby to be taken by it as the general partner of IMC.
3. IMC has full power and authority to serve in the capacity of
seller and servicer of the Home Equity Loans as contemplated in the
Pooling and Servicing Agreement and to transfer the Home Equity
Loans to the Depositor as contemplated in the Pooling and Servicing
Agreement.
4. This Agreement, the Pooling and Servicing Agreement and the
Insurance 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.
5. 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
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of the transactions contemplated by the Pooling and Servicing
Agreement and the Insurance Agreement, except such consents,
approvals, authorizations, registrations and qualifications as have
been obtained.
6. Neither the transfer of the Initial Home Equity Loans by IMC to
the Depositor, nor the execution, delivery or performance by IMC of
the Pooling and Servicing Agreement or the Insurance 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 Certificates.
7. The execution of the Pooling and Servicing Agreement is
sufficient to convey all of IMC's right, title and interest in the
Initial Home Equity Loans to the Depositor and following the
consummation of the transaction contemplated by section 3.05 of the
Pooling and Servicing Agreement, the transfer of the Initial Home
Equity Loans by IMC to the Depositor is a sale thereof.
8. Each Subsequent Transfer Agreement at the time of its execution
and delivery will be sufficient to convey all of IMC's right, title
and interest in the Subsequent Home Equity Loans to the Depositor
and following the consummation of the transaction contemplated by
each Subsequent Transfer Agreement, the transfer of the Subsequent
Home Equity Loans by IMC to the Depositor will be a sale thereof.
9. 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
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the validity of the Pooling and Servicing Agreement, the
Underwriting Agreement, the Insurance Agreement or the Certificates,
(b) seeking to prevent the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or (c) which
would materially and adversely affect the performance by IMC of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement, the Underwriting Agreement, or the
Insurance Agreement.
X. Xxxxx & Xxxxxx, special counsel for the Depositor, shall have furnished
to the Underwriters his 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 this Agreement, the Pooling and Servicing
Agreement, the Indemnification Agreement and the Insurance
Agreement, and to cause the Certificates to be issued.
2. The Depositor has the requisite power and authority and legal
right to own the Class S Certificates and the Class R Certificates.
3. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, of the Depositor.
4. This Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement and the
Purchase Agreement relating to the purchase of the Class R
Certificates (the "Purchase Agreement") have been duly authorized,
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and when duly executed and delivered by the Depositor and, assuming
the due authorization, execution and delivery of such agreements by
the other parties thereto, such agreements constitute valid and
binding obligations, enforceable against the Depositor in accordance
with their respective terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, (y) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (z)
with respect to rights of indemnity under this Agreement and the
Insurance Agreement, limitations of public policy under applicable
securities laws.
5. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement and each Subsequent Transfer Agreement by
the Depositor, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the
Certificates do not and will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is
a party or by which the Depositor is bound or to which any of the
property or assets of the Depositor or any of its subsidiaries is
subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the
Depositor, nor will such actions result in a violation of the
provisions of the certificate of incorporation or by-laws of the
Depositor or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Depositor or any of its properties or assets, which breach or
violation would have a material adverse effect on the business,
operations or financial condition of the Depositor.
6. The direction by the Depositor to the Trustee to execute, issue,
authenticate and deliver the Certificates has been duly authorized
by the Depositor and, assuming that the Trustee has been duly
authorized to do so, when executed, authenticated and delivered by
the Trustee in accordance with the Pooling and Servicing Agreement,
the Certificates will be validly issued and outstanding and will be
entitled to the benefits of the Pooling and Servicing Agreement.
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7. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates,
and the sale of the Offered Certificates to the Underwriters, or the
consummation by the Depositor of the other transactions contemplated
by this Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement, except such
consents, approvals, authorizations, registrations or qualifications
as may be required under the 1933 Act or State securities or Blue
Sky laws in connection with the purchase and distribution of the
Offered Certificates by the Underwriters or as have been previously
obtained.
8. There are not, to the best of our knowledge, after reasonable
independent investigation, any actions, proceedings or
investigations pending with respect to which the Depositor has
received service of process before or, threatened by any court,
administrative agency or other tribunal to which the Depositor is a
party or of which any of its properties is the subject: (a) which if
determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition
of the Depositor; (b) asserting the invalidity of the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement, this Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement or this Agreement, as the case may be; or (d) which might
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement, the Guaranty, this Agreement or the
Certificates.
H. The Underwriters shall have received the favorable opinion of counsel
to the Trustee, dated the Closing Date, addressed to the Underwriters and
in form and scope satisfactory to counsel to the Underwriters, to the
effect that:
1. The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
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2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and Servicing
Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement have been duly
authorized by all necessary corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the Trustee.
5. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement does not (a) violate the Organization
Certificate of the Trustee or the Bylaws of the Trustee, (b) to such
counsel's knowledge, violate any judgment, decree or order of any
New York or United States federal court or other New York or United
States federal governmental authority by which the Trustee is bound
or (c) assuming the non-existence of any judgment, decree or order
of any court or other governmental authority that would be violated
by such execution and delivery, violate any New York or United
States federal statute, rule or regulation or require any consent,
approval or authorization of any New York or United States federal
court or other New York or United States federal governmental
authority.
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the obligations
of the Servicer under the Pooling and Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or
affecting the Trustee before or by any court, arbitrator,
administrative agency or other governmental authority which, if
decided adversely to the Trustee, would materially and adversely
affect the ability of the Trustee to carry out the transactions
contemplated in the Pooling and Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or opinions,
dated the date of the Closing Date, of
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counsel for the Underwriters, with respect to the issue and sale of the
Offered Certificates, the Registration Statement, this Agreement, the
Prospectus and such other related matters as the Underwriters may
reasonably require.
J. The Underwriters shall have received the favorable opinion dated the
Closing Date, from internal counsel to the Certificate Insurer in form and
scope satisfactory to counsel for the Underwriters, substantially to the
effect that:
1. The Certificate Insurer is a monoline insurance company duly
incorporated, validly existing, and in good standing under the laws
of the State of New York. The Certificate Insurer is validly
licensed and authorized to issue the Insurance Policy and perform
its obligations under the Insurance Agreement in accordance with the
terms thereof, under the laws of the State of New York.
2. The Certificate Insurer has the corporate power to execute and
deliver, and to take all action required of it under the Insurance
Agreement and the Insurance Policy.
3. The execution, delivery and performance by the Certificate
Insurer of the Insurance Policy 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 and Insurance Agreement have been duly
authorized, executed and delivered by the Certificate Insurer and
constitute the legal, valid and binding agreement of the Certificate
Insurer, enforceable against the Certificate Insurer in accordance
with its terms subject, as to enforcement, to (x) bankruptcy,
reorganization, insolvency, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and
equitable subordination, presently or from time to time in effect
and general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to the
Certificate Insurer and (y) the qualification that the remedy of
specific
-23-
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 Certificate
Insurer" in the Prospectus Supplement, insofar as such information
constitutes a description of the Insurance Policy, accurately
summarizes the Insurance Policy.
K. The Depositor and IMC shall each have furnished to the Underwriters a
certificate, dated the closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in this
Agreement and in the Pooling and Servicing Agreement are true and
correct as of the Closing Date; and such entity has complied with
all agreements contained herein which are to have been complied with
on or prior to the Closing Date.
2. The information contained in the Prospectus relating to such
entity and the Home Equity Loans is true and accurate in all
material respects and nothing has come to his or her attention that
would lead such officer to believe that the Registration statement
or the Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein not misleading.
3. There has been no amendment or other document filed affecting the
Certificate of Incorporation or bylaws of the Depositor since
November 10, 1994 or the formation documents of IMC since October
19, 1990 and no such amendment has been authorized. No event has
occurred since October 1, 1996 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, 1996.
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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 are made by IMC instead of the Depositor and are true as to IMC
as though such representations and warranties were fully set forth in such
certificate.
L. The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the
Trustee, dated the closing Date, as to the due authorization, execution
and delivery of the Pooling and Servicing Agreement by the Trustee and the
acceptance by the Trustee of the trusts created thereby and the due
execution, authentication and delivery of the Certificates by the Trustee
thereunder and such other matters as the Representative shall reasonably
request.
M. The Insurance Policy and the Insurance Agreement shall have been issued
by the Certificate Insurer and shall have been duly authenticated by an
authorized agent of the Certificate Insurer, if so required under
applicable state law or regulations.
N. The Offered Certificates shall have been rated "AAA" by Standard &
Poor's Ratings Group and "Aaa" by Xxxxx'x Investors Service, Inc.
O. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
have requested not less than three full business days prior to the Closing
Date.
P. Prior to the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Depositor in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
Q. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having
-25-
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
Certificates on the terms and in the manner contemplated in the
Prospectus.
R. The Underwriters shall have received from Coopers & Xxxxxxx 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 -- Nature of
the Collateral; Junior Liens", "Risk Factors -- Risk of Higher Default
Rates for Home Equity Loans with Balloon Payments", "The Seller and
Servicer -- General" and "The Home Equity Loan Pool -- General," agrees
with the records of the Depositor excluding any questions of legal
interpretation.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor at any time at or prior to the closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Certificates
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs
-26-
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (d) the costs of reproducing and distributing this Agreement;
(e) the fees and expenses of qualifying the Certificates under the securities
laws of the several jurisdictions designated by the Underwriters as provided in
Section 5(H) hereof and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses of
counsel to the Representative); (f) any fees charged by securities rating
services for rating the Offered Certificates; (g) the costs of the accountant's
letters referred to in Section 6(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 Offered Certificates
which they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriters, and the Underwriters shall pay the cost
of any accountant's letters relating to any Computational Materials (as defined
in Section 5(E) hereof).
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & Xxxxx, counsel for the
Underwriters.
SECTION 8 Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
-27-
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 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
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Depositor or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Depositor or any such director, officer or controlling
person. The only information furnished by the Underwriters or on behalf of the
Underwriters for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it 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
-29-
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to one local counsel per jurisdiction)
at any time for all such indemnified parties, which firm shall be designated in
writing by the related Underwriter, if the indemnified parties under this
Section 8 consist of one or more Underwriters or any of its or their controlling
persons, or the Depositor, if the indemnified parties under this Section 8
consist of the Depositor or any of the Depositor's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is required to
be filed pursuant to Rule 424 with a copy of any Computational Materials (as
defined in Section 5(E) hereof) produced by such Underwriter for filing with the
Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor, each of
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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 Underwriters on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section 8(C), in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of an Underwriter and the Depositor 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 received by the related Underwriter from time to time
in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or
-31-
alleged omission to state a material fact relates to information supplied by the
Depositor or by such Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission and other equitable considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Offered Certificates exceeds
(y) the amount paid by such Underwriter to the Depositor for the Offered
Certificates by such underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Computational Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section 8(D) for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K --
Computational Materials; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by or on behalf of the Seller and Servicer
concerning the assets comprising the Trust.
X. The Seller and Xxxxxxxx agrees to indemnify each indemnified party
referred to in Section 8(A) hereof with respect to Seller Provided Information
to the same extent as the indemnity granted under such section. The procedures
set forth in Section 8(C) shall be equally applicable to this Section 8(H).
-32-
I. The Underwriters confirm that the information set forth in the last
paragraph on the cover page of the Prospectus Supplement and the Computational
Materials (other than to the extent such information is based on Seller Provided
Information) is correct, and the parties hereto acknowledge that such
information constitutes the only information furnished in writing by or on
behalf of any Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus.
SECTION 9 Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling persons
thereof, or by or on behalf of the Depositor and shall survive delivery of any
Offered Certificates to the Underwriters.
SECTION 10 Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the Underwriters have not
completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates does not
exceed 10% of the aggregate principal amount of the Offered Certificates
to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
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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(P) of
this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12 Obligations of IMC. IMC agrees with the Underwriters, for the
sole and exclusive benefit of each such Underwriter and each person controlling
such Underwriter within the meaning of the Securities Act and not for the
benefit of any assignee thereof or any other person or persons dealing with such
Underwriter, in consideration of and as an inducement to their agreement to
purchase the Offered Certificates from the Depositor, to indemnify and hold
harmless each Underwriter against any failure by the Depositor to perform its
obligations to the Underwriters hereunder, including, without limitation, any
failure by the Depositor to honor any obligation to any Underwriter pursuant to
Section 8 hereof.
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Asset Backed Securities Group (Fax:
000-000-0000); and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of IMC Securities, Inc., 0000 Xxxxxxxxx
Xxxx Xxxxx, Xxxxx, Xxxxxxx 00000 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
-34-
of Section 15 of the Securities Act, and for the benefit of directors of the
Depositor, officers of the Depositor who have signed the Registration Statement
and any person controlling the Depositor within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 14, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 15 Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17 Governing Law; Submission to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York and any court in the State
of New York located in the city and County of New York, and appellate court from
any thereof, in any action, suit or proceeding brought against it or in
connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 18 Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION 19 Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Depositor
and the Underwriters, please indicate your acceptance in the space provided for
the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By:_______________________________
Name: Xxxxxx Xxxxxxxx
Title: Chairman, Chief Executive
Officer and Assistant
Secretary
INDUSTRY MORTGAGE COMPANY, L.P.
Industry Mortgage Company,
its General Partner
By:_______________________________
Name: Xxxxxx Xxxxxxxx
Title: Chairman, Chief Executive
Officer and Assistant
Secretary
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
Acting on its own behalf and as
Representative of the Several
Underwriters referred to in the
foregoing Agreement
By:__________________________________
Name:
Title:
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SCHEDULE A
Class A-1 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $39,268,000 99.82635%
Nomura Securities International, Inc. $39,267,000 99.82635%
Greenwich Capital Markets, Inc. $39,267,000 99.82635%
Total $117,802,000
Class A-2 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $13,377,000 99.73975%
Nomura Securities International, Inc. $13,377,000 99.73975%
Greenwich Capital Markets, Inc. $13,377,000 99.73975%
Total $40,131,000
Class A-3 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $19,492,000 99.69868%
Nomura Securities International, Inc. $19,490,000 99.69868%
Greenwich Capital Markets, Inc. $19,490,000 99.69868%
Total $58,472,000
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SCHEDULE A (cont'd)
Class A-4 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $17,147,000 99.53103%
Nomura Securities International, Inc. $17,146,000 99.53103%
Greenwich Capital Markets, Inc. $17,146,000 99.53103%
Total $51,439,000
Class A-5 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $5,483,000 99.48827%
Nomura Securities International, Inc. $5,481,000 99.48827%
Greenwich Capital Markets, Inc. $5,481,000 99.48827%
Total $16,445,000
Class A-6 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, Xxxxxxx & Co. Inc. $ 8,571,000 99.42729%
Nomura Securities International, Inc. $ 8,570,000 99.42729%
Greenwich Capital Markets, Inc. $ 8,570,000 99.42729%
Total $25,711,000
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SCHEDULE A [cont'd)
Selling Reallowance
Class Concession Discount
----- ---------- --------
A-1 0.102% 0.075%
A-2 0.150% 0.100%
A-3 0.180% 0.150
A-4 0.270% 0.200%
A-5 0.300% 0.225%
A-6 0.330% 0.275%
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