Exhibit 1.1
EXECUTION COPY
$700,000,000
IMC HOME EQUITY LOAN OWNER TRUST 1998-6
Fixed Rate Home Equity Loan Asset Backed Notes,
Series 1998-6
UNDERWRITING AGREEMENT
September 23, 1998
Deutsche Bank Securities Inc.
As representative of the several underwriters
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized (i) the creation of IMC Home Equity Loan Owner Trust 1998-6, a
Delaware business trust (the "Issuer"), pursuant to the Trust Agreement, dated
as of September 1, 1998 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company ("Wilmington Trust"), as owner trustee (the "Owner
Trustee") and (ii) the issuance and sale of $700,000,000 aggregate original
principal amount of the Issuer's Fixed Rate Home Equity Loan Asset Backed Notes
Series 1998-6 (the "Notes"). The Notes will evidence non-recourse obligations
of, and will be issued by, the Issuer pursuant to the terms of the Indenture,
dated as of September 1, 1998 (the "Indenture"), between the Issuer and The
Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee"). Pursuant
to the Trust Agreement, the Issuer also will issue certificates evidencing the
residual interest in the Issuer (the "Residual Interest"). The Residual Interest
and the Notes are sometimes collectively referred to as the "Securities."
The Notes will be secured by a trust estate (the "Trust Estate")
consisting primarily of a pool of fixed-rate home equity loans secured by
mortgages or deeds of trust creating first or second liens on primarily one- to
four-family residential properties (the "Home Equity Loans") and such amounts as
may be held by the Indenture Trustee in any accounts for the Owners. The Notes
will be secured by Home Equity Loans in an amount of approximately $700,000,000
(the "Home Equity Loans") as of the close of business on September 1, 1998 (the
"Cut-Off Date"). The Home Equity Loans will be sold by IMC Mortgage Company
("IMC") to the Depositor, and by the Depositor to the Issuer pursuant to the
Sale and Servicing Agreement, dated as of September 1, 1998 (the "Sale and
Servicing Agreement"), among IMC, as seller (the "Seller") and as servicer (the
"Servicer"), the Depositor, the Indenture Trustee and the Issuer. Pursuant to
the Sale and Servicing Agreement, the Servicer will service the Home Equity
Loans on behalf
of the Issuer.
The Notes will have the benefit of a financial guaranty insurance
policy (the "Insurance Policy") issued by Financial Security Assurance Inc. (the
"Note Insurer"), issued pursuant to the Insurance Agreement, dated as of
September 1, 1998 (the "Insurance Agreement") among the Seller, the Servicer,
the Depositor, the Indenture Trustee and the Note Insurer. The Note Insurer, the
Seller, the Depositor, PaineWebber Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. as Underwriters,
also will enter into an Indemnification Agreement, dated as of September 30,
1998 (the "Indemnification Agreement"). This Agreement, the Trust Agreement, the
Sale and Servicing Agreement, the Indenture, the Indemnification Agreement and
the Insurance Agreement are sometimes referred to herein collectively as the
"Agreements". A form of each of the Trust Agreement, the Indenture and the Sale
and Servicing Agreement has been filed as an exhibit to the Registration
Statement (hereinafter defined).
The Notes are more fully described in a Registration Statement which
the Depositor has furnished to the Underwriters. Capitalized terms used but not
defined herein shall have the meanings given to them in the Agreements.
The Notes are being purchased by the Underwriters named in Schedule A
hereto (the "Underwriters"), and the Underwriters are purchasing, severally,
only the Notes set forth opposite their names in Schedule A, except that the
amounts purchased by the Underwriters may change in accordance with Section 10
of this Agreement. Deutsche Bank Securities Inc. (the "Representative") is
acting for itself and as representative of the other Underwriters.
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-48429) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act"), the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") under the
Securities Act and the Trust Indenture Act, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which
such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time,
including any documents incorporated by reference therein at such time;
and "Basic Prospectus" means such final prospectus dated May 29, 1998;
and "Prospectus Supplement" means the final prospectus supplement
relating to the Notes, to be filed with the Commission pursuant to
paragraph (2), (3) or (5) of Rule 424(b) of the Rules and Regulations.
"Prospectus" means the Basic Prospectus together with the Prospectus
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Supplement. Reference made herein to the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the
date of the Prospectus and any reference to any amendment or supplement
to the Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of the Prospectus, and incorporated by reference in the
Prospectus and any reference to any amendment to the Registration
Statement shall be deemed to include any report of the Depositor filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of the Prospectus. There are no
contracts or documents of the Depositor which are required to be filed
as exhibits to the Registration Statement pursuant to the Securities
Act, the Rules and Regulations or the Trust Indenture Act which have
not been so filed or incorporated by reference therein on or prior to
the Effective Date of the Registration Statement other than such
documents or materials, if any, as any Underwriter delivers to the
Depositor pursuant to Section 4(B) hereof for filing on Form 8-K. The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations. The Registration Statement, as of the Effective
Date thereof and of any amendment thereto, did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of its date, and as amended or
supplemented as of the Closing Date, does not and will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Depositor in writing by the Underwriters expressly for use therein. The
only information furnished by the Underwriters or on behalf of the
Underwriters for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(I)
hereof.
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,
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as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation is
made as to documents deemed to be incorporated by reference in the
Prospectus as the result of filing a Form 8-K at the request of the
Underwriters except to the extent such documents reflect information
furnished by the Depositor to the Underwriters for the purpose of
preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
each Agreement to which it is a party and to cause the Securities to be
issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the
subject (a) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the
Depositor, (b) asserting the invalidity of any of the Agreements or the
Securities, (c) seeking to prevent the issuance of the Securities or
the consummation by the Depositor of any of the transactions
contemplated by the Agreements, or (d) which might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, the Agreements or the
Securities.
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G. This Agreement has been, and each other Agreement to which the
Depositor is a party when executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and each such other
Agreement when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against
the Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency
moratorium or other similar laws affecting creditors' rights generally,
(y) general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and (z) with respect to
rights of indemnity under this Agreement and the Indemnification
Agreement, limitations of public policy under applicable securities
laws.
H. The execution, delivery and performance of each Agreement to which
the Depositor is a party and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the
Notes do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party, by which the
Depositor is bound or to which any of the properties or assets of the
Depositor or any of its subsidiaries is subject, which breach or
violation would have a material adverse effect on the business,
operations or financial condition of the Depositor, nor will such
actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor.
I. The Depositor has no reason to believe that either Coopers & ▇▇▇▇▇▇▇
L.L.P. or Deloitte & Touche LLP are not independent public accountants
with respect to the Depositor as required by the Securities Act and the
Rules and Regulations.
J. The direction by the Depositor to the Owner Trustee to execute,
issue and deliver and the direction by the Depositor to the Indenture
Trustee to authenticate the Notes has been duly authorized by the
Depositor, and assuming the Owner Trustee and the Indenture Trustee
have been duly authorized to do so, when executed, authenticated,
issued and delivered in accordance with the Indenture, the Notes will
be validly issued and outstanding and will be entitled to the benefits
provided by the Indenture.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Securities and
the sale of the Notes to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the Agreements
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky
laws in connection
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with the purchase and distribution of the Notes by the Underwriters or
as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the
Depositor has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which if decided adversely to the Depositor would, singly or
in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
M. At the time of execution and delivery of the Sale and Servicing
Agreement, the Depositor will: (i) have beneficial title to the Home
Equity Loans conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any person
any of its right or title in the Home Equity Loans or in the Sale and
Servicing Agreement or in the Notes being issued pursuant to the
Indenture and (iii) have the power and authority to sell its interest
in the Home Equity Loans to the Issuer and to sell the Notes to the
Underwriters. Upon execution and delivery of the Sale and Servicing
Agreement by the Issuer, the Issuer will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to
the Home Equity Loans. Upon execution and delivery of the Indenture by
the Issuer and the Indenture Trustee, the Indenture Trustee will have a
valid and perfected security interest in the Trust Estate free of any
other Liens. Upon delivery to the Underwriters of the Notes, the
Underwriters will have good title to the Notes, free of any Liens.
N. [Reserved]
O. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
P. [Reserved]
Q. Neither the Depositor nor the Issuer is an "investment company"
within the meaning of such term under the Investment Company Act of
1940 (the "1940 Act") and the rules and regulations of the Commission
thereunder.
R. At the Closing Date, the Notes and each Agreement will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
S. At the Closing Date, the Notes shall have been rated in the
respective rating categories by the nationally recognized rating
agencies, as described in the Prospectus Supplement under "Ratings".
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T. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of each Agreement and the
Securities have been paid or will be paid at or prior to the Closing
Date.
U. At the Closing Date, each of the representations and warranties of
the Depositor set forth in each Agreement to which it is a party will
be true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
an Underwriter or counsel for the Underwriters in connection with an offering of
the Notes shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Depositor agrees to
instruct the Issuer to issue the Notes and agrees to sell to each Underwriter,
and each Underwriter agrees (except as provided in Sections 10 and 11 hereof)
severally and not jointly to purchase from the Depositor the aggregate initial
principal amounts of the Notes set forth opposite their names on Schedule A, at
the purchase price or prices set forth in Schedule A. The Underwriters may offer
the Notes to certain dealers at such price less a concession not in excess of
the amount set forth in Schedule A. The Underwriters may allow and such dealers
may reallow a discount to certain dealers not in excess of the amount set forth
in Schedule A.
SECTION 3. Delivery and Payment. Delivery of and payment for the Notes
to be purchased by the Underwriters shall be made at the offices of Stroock &
Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representative and the Depositor at 10:00
A.M. New York City time on September 29, 1998, or at such other time or date as
shall be agreed upon in writing by the Representative and the Depositor (such
date being referred to as the "Closing Date"). Payment shall be made to the
Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Notes shall be made to the Representative for the
accounts of the applicable Underwriters against payment of the purchase price
thereof. The Notes shall be in such authorized denominations and registered in
such names as the Representative may request in writing at least two business
days prior to the Closing Date. The Notes will be made available for examination
by the Representative no later than 2:00 P.M. New York City time on the first
business day prior to the Closing Date.
SECTION 4. Offering by the Underwriters.
A. It is understood that, subject to the terms and conditions hereof,
the Underwriters propose to offer the Notes for sale to the public as
set forth in the Prospectus.
B. It is understood that each Underwriter may prepare and provide to
prospective
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investors certain Computational Materials and ABS Term Sheets in
connection with the offering of the Notes, subject to the following
conditions:
1. In connection with its use of Computational Materials, the
applicable Underwriter shall comply with all applicable requirements of
the No-Action Letter, dated May 20, 1994, issued by the Division of
Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured
Asset Corporation, as made applicable to other issuers and underwriters
by the Division of Corporation Finance of the Commission in response to
the request of the Public Securities Association ("PSA"), dated May 23,
1994 (collectively, the "▇▇▇▇▇▇/PSA Letters"), as well as the PSA
Letter referred to below. In connection with its use of ABS Term
Sheets, the applicable Underwriter shall comply with all applicable
requirements of the No-Action Letter dated February 17, 1995, issued by
the Division of Corporation Finance of the Commission to PSA (the "PSA
Letter" and, together with the ▇▇▇▇▇▇/PSA Letters, the "No-Action
Letters").
2. The term "Computational Materials" as used herein shall
have the meaning given to such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of the
applicable Underwriter. The terms "ABS Term Sheets," "Collateral Term
Sheets" and "Structural Term Sheets" as used herein shall have the
meanings given to such terms in the PSA Letter, but shall include only
those ABS Term Sheets, Collateral Term Sheets or Structural Term Sheets
that have been prepared or delivered to prospective investors by or at
the direction of the applicable Underwriter.
3. All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letter shall bear a legend in a form previously agreed upon
by the Depositor and the applicable Underwriter.
4. Any Computational Materials and ABS Term Sheets are subject
to review by and approval of the Depositor prior to their distribution
to any prospective investors and a copy of such Computational Materials
and ABS Term Sheets as are delivered to prospective investors shall, in
addition to the following delivery requirements, be delivered to the
Depositor simultaneously with delivery to prospective investors.
5. Each applicable Underwriter shall provide to the Depositor,
for filing on Form 8-K as provided in Section 5(E), two printed copies
and one electronic copy on diskette (in such format as required by the
Depositor) of all Computational Materials and ABS Term Sheets
distributed by such Underwriter and that are required to be filed with
the Commission pursuant to the No-Action Letters. Each delivery of
Computational Materials or ABS Term Sheets to the Depositor pursuant to
this paragraph shall be effected by delivering one printed copy and one
electronic copy on diskette of such materials to counsel for the
Depositor on behalf of the Depositor and
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one printed copy of such materials to the Depositor. An Underwriter may
provide copies of the foregoing in a consolidated or aggregate form
that includes all information required to be filed by such Underwriter.
All Computational Materials and ABS Term Sheets described in this
Section must be provided to the Depositor no later than 10:00 a.m., New
York time, on the Business Day before the date on which filing thereof
is required pursuant to the terms of this Agreement. Each Underwriter
agrees that it will not provide to any investor or prospective investor
of the Notes any Computational Materials or ABS Terms Sheets on or
after the day on which Computational Materials and ABS Term Sheets are
required to be provided to the Depositor pursuant to this Section
(other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Depositor in accordance with this Section
for filing pursuant to Section 5(E), unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
6. All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same
methodolgy and assumptions that are used to generate the information in
the Prospectus Supplement as set forth therein; provided, however, that
the Computational Materials and ABS Term Sheets may include information
based on alternative methodologies or assumptions specified therein. If
any Computational Materials or ABS Term Sheets that are required to be
filed contain any material error, to the extent the Prospectus
Supplement does not specifically correct such error, the Underwriters
shall prepare revised corrected Computational Materials or ABS Term
Sheets, as the case maybe, circulate such revised Computational
Materials or ABS Term Sheets, as the case may be, to all recipients of
the preliminary versions thereof that indicated orally to the
Underwriter that they would purchase all or any portion of the Notes
and include such revised Computational Materials or ABS Term Sheets
(marked "as revised") in the materials delivered to the Depositor
pursuant to Section 4(B)(5) hereof.
7. The Depositor shall not be obligated to file any
Computational Materials or ABS Term sheets that (i) in the reasonable
determination of the Depositor and the Underwriters and their
respective counsel are not required to be filed pursuant to the
No-Action Letters or (ii) have been determined to contain any material
error; provided that, at the request of an Underwriter, the Depositor
will file Computational Materials or ABS Term Sheets that contain a
material error if clearly marked "superseded by materials dated
__________" and accompanied by corrected Computational Materials or ABS
Term sheets that are marked "material previously dated _________, as
corrected.".
C. Each Underwriter represents and warrants and agrees with the
Depositor that, as of the date hereof and the Closing Date, (i) the
Computational Materials and ABS Term Sheets furnished to the Depositor
pursuant to Section 4(B)(5) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to
the Depositor that are required to be filed with the Commission with
respect to the Notes in accordance with the No-Action Letters, and such
Computational Materials and ABS Term Sheets
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comply with the requirements of the No-Action Letters, (ii) the
Underwriter has not and will not represent to potential investors that
any Computational Materials or ABS Term Sheets were prepared or
disseminated on behalf of the Depositor, and (iii) all Computational
Materials and ABS Term Sheets (or underlying materials distributed to
prospective investors on which the Computational Materials and ABS Term
Sheets were based) contained and will contain the legend in the form
previously agreed upon by the Depositor and the Underwriters as
required by Section 4(B)(3) hereof.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from any error contained in the
Seller-Provided Information provided to the Underwriters by the Depositor.
D. If an Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Depositor pursuant to Section 4(B)(4), the
Underwriter shall be deemed to have represented, as of the Closing
Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Notes that is required to be filed with the Commission
in accordance with the No-Action Letters.
SECTION 5. Covenants of the Depositor and IMC. The Depositor and, to
the extent the provisions of Section 5(I) below relate to IMC, IMC each agrees
as follows:
A. To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the
Underwriters to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and,
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Notes; to promptly advise the
Underwriters of its receipt of notice of the issuance by the Commission
of any stop order or of: (i) any order preventing or suspending the use
of the Prospectus; (ii) the suspension of the qualification of the
Notes for offering or sale in any jurisdiction; (iii) the initiation of
or threat of any proceeding for any such purpose; (iv) any request by
the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the event
of the issuance of any stop order or of any order
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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 Notes, and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, the Depositor shall notify the Underwriters
and, upon the Underwriters' request, shall file such document and
prepare and furnish without charge to the Underwriters and to any
dealer in securities as many copies as the Underwriters may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which corrects such statement or omission or effects
such compliance, and in case the Underwriters are required to deliver a
Prospectus in connection with sales of any of the Notes at any time
nine months or more after the Effective Time, upon the request of the
Underwriters but at their expense, the Depositor shall prepare and
deliver to the Underwriters as many copies as the Underwriters may
reasonably request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act, the Trust Indenture
Act or requested by the Commission.
E. The Depositor will cause any Computational Materials and ABS Term
Sheets with respect to the Notes which are delivered by any Underwriter
to the Depositor as provided in Section 4(B)(5) to be filed with the
Commission on a Current Report on Form 8-K (the "Form 8-K --
Computational Materials") at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act; to cause
any ABS
-11-
Term Sheets with respect to the Notes that are delivered to the
Depositor as provided in Section 4(B)(5) to be filed with the
Commission on one or more Current Reports on Form 8-K (i) at or before
the time of filing of the Prospectus pursuant to Rule 424(b) of the
Rules and Regulations in the case of Structural Term Sheets, and (ii)
within two Business Days of first use in the case of Collateral Term
Sheets. Prior to any such filing of Computational Materials or ABS Term
Sheets (other than any Collateral Term Sheets that are not based on
Home Equity Loan information provided to the Underwriters by the
Depositor) by the Depositor, however, the applicable Underwriter must
comply with its obligations pursuant to Section 4(B) and the Depositor
must receive a letter from independent, certified public accountants,
satisfactory in form and substance to the Depositor, the Depositor's
counsel and the applicable Underwriter, to the effect that such
accountants have performed certain specified procedures, all of which
have been agreed to by the Depositor and the applicable Underwriter, as
a result of which they determined that all information that is included
in the Computational Materials and ABS Term Sheets (if any) provided by
such Underwriter to the Depositor for filing on Form 8-K, as provided
in Section 4(B) and this Section 5(E), is accurate except as to such
matters that are not deemed by the Depositor to be material. The
Depositor shall file any corrected Computational Materials or ABS Term
Sheets described in Section 4(B)(7) as soon as practicable following
receipt thereof.
F. To furnish the Underwriters and counsel for the Underwriters, prior
to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Notes: (i) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or
(ii) Prospectus pursuant to Rule 424 of the Rules and Regulations.
G. To make generally available to holders of the Notes as soon as
practicable, but in any event not later than 90 days after the close of
the period covered thereby, a statement of earnings of the Issuer
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Depositor, Rule 158) and covering a period of at least twelve
consecutive months beginning not later than the first day of the first
fiscal quarter following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to
be maintained such qualifications in effect for as long as may be
required for the distribution of the Notes. The Depositor will file or
cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been so
qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates or debt instruments backed by
home equity loans or other similar securities representing interest in
or secured by other mortgage-related assets
-12-
originated or owned by the Depositor or IMC shall be publicly offered,
sold nor shall the Depositor or IMC enter into any contractual
arrangements that contemplate the public offering or sale of such
securities for a period of seven (7) business days following the
commencement of the offering of the Notes to the public.
J. So long as the Notes shall be outstanding the Depositor shall cause
the Indenture Trustee, pursuant to the Sale and Servicing Agreement, to
deliver to the Underwriters as soon as such statements are furnished to
the Owners: (i) the annual statement as to compliance delivered to the
Indenture Trustee pursuant to Section 4.16 of the Sale and Servicing
Agreement; (ii) the annual statement of a firm of independent public
accountants furnished to the Indenture Trustee pursuant to Section 4.17
of the Sale and Servicing Agreement; (iii) the monthly servicing report
furnished to the Trustee pursuant to Section 3.08 of the Sale and
Servicing Agreement; and (iv) the monthly reports furnished to the
Noteholders pursuant to Section 3.09 of the Indenture.
K. To apply the net proceeds from the sale of the Notes in the manner
set forth in the Prospectus.
SECTION 6. Conditions to the Underwriters' Obligations. The obligations
of the Underwriters to purchase the Notes pursuant to this Agreement are subject
to: (i) the accuracy on and as of the Closing Date of the representations and
warranties on the part of the Depositor and IMC herein contained; (ii) the
performance by the Depositor of all of its obligations hereunder; and (iii) the
following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the
Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements, the Issuer, the
Notes, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to the
Underwriters and their counsel, and the Depositor shall have furnished
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
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▇. ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act,
as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement and
the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates (other than the financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with
the applicable requirements of the Securities Act and the
rules and regulations thereunder.
3. To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a
character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Securities", "Servicing of
Mortgage Loans" and "The Indenture" and in the Prospectus
Supplement under the captions "Description of the Notes" and
"Administration," to the extent such statements purport to
summarize certain provisions of the Notes or of the
Agreements, are fair and accurate in all material respects.
5. The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the captions "ERISA
Considerations" and "Federal Income Tax Consequences" to the
extent that they constitute matters of federal law, provide a
fair and accurate summary of such law or conclusions.
6. The Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus. The
Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended and complies with the requirements of
the Trust Indenture Act and the applicable Rules and
Regulations.
-14-
7. Neither the Depositor nor the Issuer is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
8. For federal income tax purposes, the Notes will be treated
as debt obligations of the Issuer, and the Issuer will not be
characterized as an association (or publicly traded
partnership) taxable as a corporation.
9. The Notes will, when issued, conform to the descriptions
thereof contained in the Prospectus.
10. The Notes, when duly and validly executed, authenticated
and delivered in accordance with the Indenture and delivered
to the Underwriters and paid for in accordance with the
Underwriting Agreement, will be entitled to the benefits of
the Indenture.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Underwriters to the effect that
no facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of
the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; or (c) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Depositor prior to the Closing Date
contained, as of the time it became effective or was filed with the
Commission, as the case may be, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to the
Depositor, addressed to the Depositor and satisfactory to Standard &
Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ 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 Issuer, and such counsel shall
have consented to the reliance on such opinion by Standard & Poor's, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, ▇▇▇▇▇'▇ Investors Service, Inc.
and the Underwriters as though such opinion had been addressed to each
such party.
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▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.A., special counsel for IMC, in IMC's capacity
as both Seller and Servicer under the Sale and Servicing Agreement,
and/or ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to the Underwriters
their written opinion or opinions, addressed to the Underwriters and
the Depositor and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. IMC has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Florida and has duly authorized all actions contemplated
hereby.
2. IMC has full power and authority to serve in the capacity
of seller and servicer of the Home Equity Loans as
contemplated in the Sale and Servicing Agreement and to
transfer the Home Equity Loans to the Depositor as
contemplated in the Sale and Servicing Agreement and has the
requisite power and authority and legal right to own the
Residual Interest.
3. This Agreement and the Sale and Servicing Agreement have
been duly authorized, executed and delivered by IMC and,
assuming the due authorization, execution and delivery of such
agreements by the other parties thereto, constitute the legal,
valid and binding agreements of IMC, enforceable against IMC
in accordance with their terms, subject as to enforceability
to (x) bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect
relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion, with respect to
such remedies, of the court before which any proceedings with
respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body having jurisdiction over IMC is required for the
consummation the Servicer of the transactions contemplated by
the Sale and Servicing Agreement, except such consents,
approvals, authorizations, registrations and qualifications as
have been obtained.
5. Neither the transfer of the Home Equity Loans by IMC to the
Depositor, nor the execution, delivery or performance by IMC
of the Sale and Servicing Agreement and the transactions
contemplated thereby (A) conflict with or result in a breach
of, or constitute a default under, (i) any term or provision
of the formation documents of IMC, as applicable; (ii) any
term or provision of any material agreement, deed of trust,
mortgage loan agreement, contract, instrument or indenture, or
other agreement to which IMC is a party or is bound or to
which any of the property or assets of IMC or any of its
subsidiaries is subject; (iii) to the best of such counsel'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
-16-
applicable to IMC; or (B) to the best of such firm's knowledge
without independent investigation, results in the creation or
imposition of any lien, charge or encumbrance upon the Trust
Estate or upon the Notes.
6. The execution of the Sale and Servicing Agreement is
sufficient to convey all of IMC's right, title and interest in
the Home Equity Loans to the Depositor and following the
consummation of the transaction contemplated by Section 2.05
of the Pooling and Servicing Agreement, the transfer of the
Home Equity Loans by IMC to the Depositor is a sale thereof.
7. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or
investigations pending with respect to which IMC has received
service of process or threatened against IMC before any court,
administrative agency or other tribunal (a) asserting the
invalidity of any of the Agreements or the Notes, (b) seeking
to prevent the consummation of any of the transactions
contemplated by the Agreements or (c) which would materially
and adversely affect the performance by IMC of its obligations
under, or the validity or enforceability of, the Sale and
Servicing Agreement or this Agreement.
▇. ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Depositor, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business so requires.
The Depositor has all power and authority necessary to own or
hold its properties and to conduct the business in which it is
engaged and to enter into and perform its obligations under
the Agreements and to cause the Securities to be issued.
2. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and
adversely affect the properties or assets, taken as a whole,
of the Depositor.
3. The Agreements to which the Depositor is a party have been
duly authorized, and when duly executed and delivered by the
Depositor and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto, such
agreements constitute valid and binding
-17-
obligations, enforceable against the Depositor in accordance
with their respective terms, subject as to enforceability to
(x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and (z) with respect to rights of
indemnity under this Agreement and the Indemnification
Agreement, limitations of public policy under applicable
securities laws.
4. The execution, delivery and performance of the Agreements
to which the Depositor is a party by the Depositor, the
consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Notes do not and
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Depositor is a
party or by which the Depositor is bound or to which any of
the property or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have
a material adverse effect on the business, operations or
financial condition of the Depositor, nor will such actions
result in a violation of the provisions of the certificate of
incorporation or by-laws of the Depositor or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Depositor or any
of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Depositor.
5. The directions by the Depositor to the Trustees to execute,
issue, authenticate and deliver the Notes have been duly
authorized by the Depositor and, assuming that the Trustees
have been duly authorized to do so, when executed,
authenticated and delivered by the Indenture Trustee in
accordance with the Indenture, the Notes will be validly
issued and outstanding and will be entitled to the benefits of
the Indenture.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body of the United States is required for the issuance of the
Securities, and the sale of the Notes to the Underwriters, or
the consummation by the Depositor of the other transactions
contemplated by the Agreements, except such consents,
approvals, authorizations, registrations or qualifications as
may be required State securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by
the Underwriters or as have been previously obtained.
7. There are not, to the best of such counsel's knowledge,
after reasonable independent investigation, any actions,
proceedings or investigations pending with respect to which
the Depositor has received service of process before or,
threatened by any court, administrative agency or other
tribunal to which the
-18-
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor
would have a material adverse effect on the business, results
of operations or financial condition of the Depositor; (b)
asserting the invalidity of the Agreements or the Notes; (c)
seeking to prevent the issuance of the Notes or the
consummation by the Depositor of any of the transactions
contemplated by the Agreements; or (d) which might materially
and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, the
Agreements or the Notes.
8. The execution of the Sale and Servicing Agreement is
sufficient to convey all of the Depositor's right, title and
interest in the Home Equity Loans to the Issuer and following
the consummation of the transaction contemplated by Section 2
of the Sale and Servicing Agreement, the transfer of the Home
Equity Loans by the Depositor to the Issuer is a sale thereof.
H. The documents listed in Schedule B hereto shall have been executed
and delivered and the Underwriters shall be entitled to rely on any
such opinions as though the same were addressed to the Underwriters.
I. The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& Finger, counsel to the Owner Trustee, dated the Closing Date, in form
and substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that:
1. The Owner Trustee is a Delaware banking corporation duly
incorporated and validly existing under the laws of the State
of Delaware.
2. The Owner Trustee has the full power and authority to
accept the office of owner trustee under the Trust Agreement
and to enter into and perform its obligations under the Trust
Agreement and the transactions contemplated thereby.
3. The execution and delivery of the Trust Agreement by the
Owner Trustee and the performance by the Owner Trustee of its
obligations under the Trust Agreement have been duly
authorized by all necessary action of the Owner Trustee and
the Trust Agreement has been duly executed and delivered by
the Owner Trustee.
-19-
4. The Trust Agreement constitutes valid and binding
obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the rights of creditors generally, and
(b) subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
5. The execution and delivery by the Owner Trustee of the
Trust Agreement and the consummation of the transactions
contemplated thereby do not require any consent, approval or
authorization of, or any registration or filing with, any
applicable governmental authority of the State of Delaware
which has not been obtained or done.
6. Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement, nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a breach or violation of, or
constitute a default under the Articles of Association,
By-Laws or other organizational documents of the Owner Trustee
J. The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& Finger, special Delaware counsel for the Issuer dated the Closing
Date, in form and substance satisfactory to the Underwriters and
counsel for the Underwriters, to the effect that:
1. The Trust Agreement is the legal, valid and binding
agreement of the Owner Trustee, and the Depositor, enforceable
against the Owner Trustee, and the Depositor in accordance
with its terms subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
2. The Certificate of Trust has been duly filed with the
Secretary of State of the State of Delaware. The Issuer as
been duly formed and is validly existing as a business trust
under the Delaware Business Trust Act.
3. The Issuer has the power and authority under the Trust
Agreement and the Delaware Business Trust Act to execute,
deliver and perform its obligations under the Trust Agreement,
the Indenture, the Sale and Servicing Agreement, the Notes and
the Residual Interests and
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to issue the Securities.
4. The Issuer has duly authorized and executed the Trust
Agreement, the Indenture, the Sale and Servicing Agreement,
the Notes and the Residual Interests.
5. The Trust has the power under the Trust Agreement and the
Delaware Business Trust Act to pledge the Trust Estate to the
Indenture Trustee as security for the Notes.
6. The Notes have been executed, authorized and delivered by
the Owner Trustee upon the order of the Depositor in
accordance with the Trust Agreement and the Indenture.
7. To the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles),
and assuming that the security interest created by the
Indenture in the Collateral has been duly created and has
attached, upon the filing of a UCC-1 financing statement with
the Secretary of State of the State of Delaware, the Indenture
Trustee will have a perfected security interest in such
Collateral and the proceeds thereof; and such security
interest will be prior to any other security interest granted
by the Trust that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding
purchase money security interests under ss.9-312 of the
Delaware UCC and temporarily perfected security interests in
proceeds under ss.9-306 of the Delaware UCC.
8. No re-filing or other action is necessary under the
Delaware UCC in the State of Delaware in order to maintain the
perfection of the security interest referenced above except
for the filing of continuation statements at five-year
intervals.
9. Under ss.3805(b) of the Delaware Business Trust Act, no
creditor of any holder of the Residual Interest shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and
similar laws relating to and affecting the rights and remedies
of creditors generally, (ii) principles of equity (regardless
of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification
or contribution.
-21-
10. Under ss.3805(c) of the Delaware Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good
title to the Home Equity Loans to the Issuer as a true sale
and not as a security arrangement, the Issuer, rather than the
holders of the Residual Interest, is the owner of the Home
Equity Loans subject to (i) applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent
conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
11. The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Issuer, of the Indenture
and the Sale and Servicing Agreement do not require any
consent, approval or authorization of, or any registration or
filing with, any governmental authority of the State of
Delaware, except for the filing of the Certificate of Trust
with the Secretary of State.
12. Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf
of the Trust, the transactions contemplated by the Trust
Agreement, Indenture and the Sale and Servicing Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will
conflict with or result in a breach or violation of any law of
the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and the
laws of the State of Delaware.
K. The Underwriters shall have received the favorable opinion dated the
Closing Date, from internal counsel to the Note Insurer, in form and
scope satisfactory to counsel for the Underwriters, substantially to
the effect that:
1. The Note Insurer is a monoline insurance company duly
incorporated, validly existing, and in good standing under the
laws of the State of New York. The Note Insurer is validly
licensed and authorized to issue the Insurance Policy and
perform its obligations under the Insurance Agreement in
accordance with the terms thereof, under the laws of the State
of New York.
2. The Note Insurer has the corporate power to execute and
deliver, and to take all action required of it under the
Insurance Agreement and the Insurance Policy.
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3. The execution, delivery and performance by the Note Insurer
of the Insurance Policy, the Indemnification Agreement and
Insurance Agreement does not require the consent or approval
of, the giving of notice to, the prior registration with, or
the taking of any other action in respect of any state or
other governmental agency or authority which has not
previously been obtained or effected.
4. The Insurance Policy, the Indemnification Agreement and
Insurance Agreement have been duly authorized, executed and
delivered by the Note Insurer and constitute the legal, valid
and binding agreement of the Note Insurer, enforceable against
the Note Insurer in accordance with its terms subject, as to
enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without
limitation, laws relating to fraudulent transfers or
conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law), as such laws may be applied in any such proceeding with
respect to the Note Insurer and (y) the qualification that the
remedy of specific performance and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings with
respect thereto may be brought.
5. To the extent the Insurance Policy constitutes a security
within the meaning of Section 2(1) of the Securities Act, it
is a security that is exempt from the registration
requirements of the Act.
6. The information set forth under the caption, "The Note
Insurer" in the Prospectus Supplement, insofar as such
information constitutes a description of the Insurance Policy,
accurately summarizes such Insurance Policy.
L. The Underwriters shall have received the favorable opinion of
counsel to the Indenture Trustee, dated the Closing Date, addressed to
the Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
1. The Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York.
2. The Indenture Trustee has the full corporate trust power to
execute, deliver and perform its obligations under the
Indenture
3. The execution and delivery by the Indenture Trustee of the
Indenture and the performance by the Indenture Trustee of its
obligations under the Indenture have been duly authorized by
all necessary corporate action of the Indenture
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Trustee.
4. The Indenture is a valid and legally binding obligation of
the Indenture Trustee enforceable against the Trustee.
5. The execution and delivery by the Indenture Trustee of the
Indenture does not (a) violate the Organization Certificate of
the Trustee or the Bylaws of the Indenture Trustee, (b) to
such counsel's knowledge, violate any judgment, decree or
order of any New York or United States federal court or other
New York or United States federal governmental authority by
which the Indenture Trustee is bound or (c) assuming the
non-existence of any judgment, decree or order of any court or
other governmental authority that would be violated by such
execution and delivery, violate any New York or United States
federal statute, rule or regulation or require any consent,
approval or authorization of any New York or United States
federal court or other New York or United States federal
governmental authority.
6. The Notes have been duly authenticated and delivered by the
Indenture Trustee.
7. If the Indenture Trustee were acting as Servicer under Sale
and Servicing Agreement as of the date of such opinion, the
Indenture Trustee would have the full corporate trust power to
perform the obligations of the Servicer under the Sale and
Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Indenture Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Indenture
Trustee, would materially and adversely affect the ability of
the Indenture Trustee to carry out the transactions
contemplated in the Indenture.
M. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the
Underwriters, with respect to the issue and sale of the Notes, the
Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriters may reasonably require.
N. The Depositor and IMC shall each have furnished to the Underwriters
a certificate, dated the Closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in
the Agreements to which it is a party are true and correct as
of the Closing Date; and such entity has complied with all
agreements contained herein which are to have
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been complied with on or prior to the Closing Date.
2. The information contained in the Prospectus relating to
such entity and the Home Equity Loans is true and accurate in
all material respects and nothing has come to his or her
attention that would lead such officer to believe that the
Registration Statement or the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein not misleading.
3. There has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the
Depositor since November 10, 1994 or the formation documents
of IMC since June 19, 1996 and no such amendment has been
authorized. No event has occurred since June 30, 1998 which
has affected the good standing of the Depositor under the laws
of the State of Delaware or since June 30, 1998 which has
affected the good standing of IMC under the laws of the State
of Florida.
4. There has not occurred any material adverse change, or any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
business or operations of such entity from June 30, 1998.
In addition to the foregoing, the IMC certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H,
K, L, M, N, O, P and R of this Agreement are made by IMC instead of the
Depositor and are true as to IMC as though such representations and
warranties were fully set forth in such certificate.
O. The Indenture Trustee shall have furnished to the Underwriters a
certificate of the Indenture Trustee, signed by one or more duly
authorized officers of the Indenture Trustee, dated the Closing Date,
as to the due authorization, execution and delivery of the Indenture by
the Indenture Trustee and the acceptance by the Indenture Trustee of
the trusts created thereby and the due authentication and delivery of
the Notes by the Indenture Trustee thereunder and such other matters as
the Representative shall reasonably request.
P. The Notes shall have been rated in the respective rating categories
and by the nationally recognized statistical rating organizations
described in the Prospectus Supplement under "Ratings."
Q. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may
reasonably have requested not less than three full business days prior
to the Closing Date.
R. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of
-25-
enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Depositor in connection with the issuance and
sale of the Notes as herein contemplated shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters.
S. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; (iv) any of the ratings assigned to the claims
paying ability of the Note Insurer shall have been placed on credit
watch, withdrawn or downgraded; or (v) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets of the United States shall be such) as to make it in each of
the instances set forth in clauses (i), (ii), (iii), (iv) and (v)
herein, in the reasonable judgment of the Underwriters, impractical or
inadvisable to proceed with the public offering or delivery of the
Notes on the terms and in the manner contemplated in the Prospectus.
T. The Underwriters shall have received from each of Coopers & ▇▇▇▇▇▇▇
L.L.P. and Deloitte & Touche LLP, certified public accountants, a
letter dated the date of the Prospectus Supplement and a letter dated
the date hereof and satisfactory in form and substance to the
Underwriters and their counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by the
Underwriters, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth
in the Prospectus Supplement on the cover page thereof and under the
captions "Summary of Terms - The Home Equity Loans", "Risk Factors -
Risk of Home Equity Loan Coupon Rates Reducing the Note Rate," "The
Seller and Servicer - General", "The Seller and Servicer - Delinquency,
Loan Loss and Foreclosure Information" and "The Home Equity Loan Pool -
General," agrees with the records of the Depositor excluding any
questions of legal interpretation.
U. The Insurance Policy and the Insurance Agreement shall have been
issued by the Note Insurer and shall have been duly authenticated by an
authorized agent of the Note Insurer, if so required under applicable
state law or regulations.
'
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
-26-
liability of any party to any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7. Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the Notes
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the fees and expenses
of qualifying the Notes under the securities laws of the several jurisdictions
designated by the Underwriters as provided in Section 5(H) hereof and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by securities rating services for rating the
Notes; (g) the costs of the accountant's letters referred to in Section 6(T)
hereof; and (h) all other costs and expenses incident to the performance of the
obligations of the Depositor (including costs and expenses of your counsel);
provided that, except as provided in this Section 7, the Underwriters shall pay
their own costs and expenses, including the costs and expenses of their counsel,
any transfer taxes on the Notes which they may sell and the expenses of
advertising any offering of the Notes made by the Underwriters, and the
Underwriters shall pay the cost of any accountant's letters relating to any
Computational Materials and ABS Term Sheets.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for
the Underwriters.
SECTION 8. Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls or such Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the
Notes), to which such Underwriter or any such controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact
-27-
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
shall reimburse such Underwriter and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Prospectus,
or any amendment thereof or supplement thereto, or the Registration Statement,
or any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of such Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any controlling person of any of such Underwriter. The
only information furnished by the Underwriters or on behalf of the Underwriters
for use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Depositor and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Depositor or any director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person. The only information furnished by the
Underwriters or on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement or the Prospectus is described in
Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in
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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 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 8(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
-29-
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. [Reserved]
E. Each Underwriter severally agrees, assuming all Seller-Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor, each of the Depositor's officers and directors and
each person who controls the Depositor within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Computational Materials and ABS Term Sheets
provided by such Underwriter and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of an Underwriter under this Section 8(E) shall be in addition to
any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(A), 8(B) or 8(E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the related Underwriter on the
other, from the offering of the related Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8C., 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.
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The relative benefits of the Depositor and an Underwriter shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions as set forth on the cover page of the
Prospectus Supplement received by such Underwriter.
The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by such Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the amount of the underwriting discounts
and commissions received by such Underwriter in connection with its purchase of
the Notes. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Computational Materials" and "ABS Term Sheets" means such portion, if any, of
the information delivered to the Depositor by such Underwriter pursuant to
Section 4(B) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other
information) furnished to any Underwriter by or on behalf of the Seller and
Servicer concerning the assets comprising the Trust Estate.
H. The Seller and Servicer agrees to indemnify each indemnified party
referred to in Section 8(A) hereof with respect to Seller-Provided Information
to the same extent as the indemnity granted under such section. The procedures
set forth in Section 8(C) shall be equally applicable to this Section 8(H).
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I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement and the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement is correct, and the parties
hereto acknowledge that such information constitutes the only information
furnished in writing by or on behalf of any Underwriter for use in connection
with the preparation of the Registration Statement or the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Notes to the Underwriters.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Notes shall fail
at the Closing Date to purchase the Notes which it is (or they are) obligated to
purchase hereunder (the "Defaulted Notes"), then the non-defaulting Underwriters
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth. If, however, the
Underwriters have not completed such arrangements within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Notes to be
purchased pursuant to this Agreement, the 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 Notes exceeds 10%
of the aggregate principal amount of the Notes to be purchased pursuant
to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Termination of Agreement. The Underwriters may terminate
this
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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(T)
of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12. Obligations of IMC. IMC agrees with the Underwriters, for
the sole and exclusive benefit of each such Underwriter and each person
controlling such Underwriter within the meaning of the Securities Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with such Underwriter, in consideration of and as an inducement to their
agreement to purchase the Notes from the Depositor, to indemnify and hold
harmless each Underwriter against any failure by the Depositor to perform its
obligations to the Underwriters hereunder, including, without limitation, any
failure by the Depositor to honor any obligation to any Underwriter pursuant to
Section 8 hereof.
SECTION 13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Legal Department (Fax:
▇▇▇-▇▇▇-▇▇▇▇); and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of IMC Securities, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(Fax: (▇▇▇) ▇▇▇-▇▇▇▇).
SECTION 14. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Notes and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
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SECTION 16. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the city and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 18. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 19. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the
Depositor, IMC and the Underwriters, please indicate your acceptance in the
space provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
IMC MORTGAGE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
DEUTSCHE BANK SECURITIES INC.
Acting on its own behalf and as
Representative of the several Underwriters
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
Underwriters Principal Amount
------------ ----------------
Deutsche Bank Securities Inc. $175,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc.. $175,000,000
▇.▇. ▇▇▇▇▇▇ Securities, Inc.. $175,000,000
PaineWebber Incorporated $175,000,000
------------
Total $700,000,000
============
Purchase Price Percentage
99.727382%
Selling Concession Reallowance Discount
------------------ --------------------
0.15% 0.105%
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SCHEDULE B
(a) An Issuer Order authorizing the authentication and delivery of
the Notes by the Indenture Trustee.
(b) All of the items of Collateral which shall be delivered to the
Indenture Trustee or its designee.
(c) An executed counterpart of the Trust Agreement.
(d) Opinions of Counsel addressed to the Indenture Trustee and the
Note Insurer to the effect that:
(i) all instruments furnished to the Indenture Trustee as
conditions precedent to the authentication of the
Notes by the Indenture Trustee pursuant to the
Indenture conform to the requirements of the
Indenture and constitute all the documents required
to be delivered thereunder for the Indenture Trustee
to authenticate the Notes;
(ii) all conditions precedent provided for in the
Indenture relating to the authentication of the Notes
have been complied with;
(iii) the Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Trust
Agreement;
(iv) the Issuer has been duly formed, is validly existing
as a business trust under the laws of the State of
Delaware, 12 Del. C. Section 3801, et seq., and has
power, authority and legal right to execute and
deliver the Indenture, the Insurance Agreement and
the Sale and Servicing Agreement;
(v) assuming due authorization, execution and delivery
thereof by the Indenture Trustee, the Indenture is
the valid, legal and binding obligation of the
Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent or preferential
conveyance and other similar laws of general
application affecting the rights of creditors
generally and to general principles of equity
(regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(vi) the Notes, when executed and authenticated as
provided herein and delivered against payment
therefor, will be the valid, legal and binding
obligations of the Issuer pursuant to the terms of
the Indenture, entitled to the benefits of the
Indenture, and will be enforceable in accordance with
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their terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent
or preferential conveyance and other similar laws of
general application affecting the rights of creditors
generally and to general principles of equity
(regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(vii) the Trust Agreement authorizes the Issuer to Grant
the Collateral to the Indenture Trustee as security
for the Notes and the Owner Trustee has taken all
necessary action under the Trust Agreement to Grant
the Collateral to the Indenture Trustee;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act and the Notes have been registered
under the Securities Act;
(ix) the Indenture, together with the Grant of the
Collateral to the Indenture Trustee, creates a valid
security interest in the Collateral in favor of the
Indenture Trustee for the benefit of the Owners;
(x) such action has been taken with respect to delivery
of possession of the Collateral, and with respect to
the execution and filing of the Indenture and any
financing statements as are necessary to make
effective and to perfect a first priority security
interest created by the Indenture in the Collateral
in favor of the Indenture Trustee, except that with
respect to the Mortgage Notes, possession of such
Mortgage Notes must be maintained by the Indenture
Trustee or an agent of the Indenture Trustee (other
than the Issuer, an Affiliate of the Issuer, or a
"securities intermediary," as defined in Section
8.102 of the UCC); and
(xi) no authorization, approval or consent of any
governmental body having jurisdiction in the premises
which has not been obtained by the Issuer is required
to be obtained by the Issuer for the valid issuance
and delivery of the Notes, except that no opinion
need be expressed with respect to any such
authorizations, approvals or consents as may be
required under any state securities "blue sky" laws.
(e) An Officer's Certificate complying with the requirements of
Section 11.1 of the Indenture and stating that:
(i) the Issuer is not in Default under this Indenture and
the issuance of the Notes applied for will not result
in any breach of any of the terms, conditions or
provisions of, or constitute a default under, the
Trust Agreement, any indenture, mortgage, deed of
trust or other agreement or instrument to which the
Issuer is a party or by which it is bound, or any
order of any court or administrative agency entered
in any proceeding to which the Issuer is a party or
by which it may be bound or to which it
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may be subject, and that all conditions precedent
provided in the Indenture relating to the
authentication and delivery of the Notes applied for
have been complied with;
(ii) the Issuer is the owner of all of the Initial Home
Equity Loans, has not assigned any interest or
participation in the Initial Home Equity Loans (or,
if any such interest or participation has been
assigned, it has been released) and has the right to
Grant all of the Home Equity Loans to the Indenture
Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all
of its right, title, and interest in the Collateral,
and has delivered or caused the same to be delivered
to the Indenture Trustee;
(iv) attached thereto are true and correct copies of
letters signed by ▇▇▇▇▇'▇ and Standard & Poor's
confirming that the Notes have been rated "Aaa" and
"AAA" by ▇▇▇▇▇'▇ and Standard & Poor's, respectively;
and
(v) all conditions precedent provided for in the
Indenture relating to the authentication of the Notes
have been complied with.
