IMPERIAL CREDIT COMMERCIAL MORTGAGE ACCEPTANCE CORP.
$ __________ (Approximate)
Collateralized Mortgage Bonds
Series 199_-__
UNDERWRITING AGREEMENT
New York, New York
_________ __, 199_
[Name and Address
of
Underwriters]
Dear Sirs:
Imperial Credit Commercial Mortgage Acceptance Corp., a California
corporation (the "Company"), proposes to cause ICCMAC Commercial Trust [______],
a limited purpose [Delaware] business trust (the "Trust"), to issue and sell to
____________________, as representative of the underwriters named in Schedule I
hereto (the "Underwriters"), approximately $_______________ aggregate principal
amount of Collateralized Mortgage Bonds, Series 199_-_ (the "Bonds").
The Bonds will be issued by the Trust to be formed pursuant to a trust
agreement (the "Trust Agreement") to be entered into between the Company and
____________________, as trustee (the "Owner Trustee"). The Bonds will be issued
and secured pursuant to an indenture to be dated as of the Cut-off Date (the
"Indenture") between the Trust and _________________________________, as
indenture trustee (the "Indenture Trustee"). The beneficial ownership interest
in the Trust will be represented by certificates (the "Trust Certificates")
[which will be transferred by the Company to ______________ ("_____________"), a
limited purpose wholly-owned subsidiary of ____________________________
("___________________")].
The Bonds will be secured by a pledge of collateral (the "Collateral")
which consists primarily of a segregated pool (the "Mortgage Pool") of
approximately ___ [describe general characteristics of Mortgage Loans] mortgage
loans (the "Mortgage Loans") and related property. The Mortgage Loans will be
serviced pursuant to a servicing agreement, dated as of __________, 199_ (the
"Servicing Agreement") by and among the Issuer, the Trustee, ______________, as
master servicer (the "Master Servicer") and ____________ as special servicer
(the "Special Servicer").
The Company will acquire all the Mortgage Loans from
_______________________ pursuant to a mortgage loan purchase agreement between
the Company and _______________ (the "Mortgage Loan Purchase Agreement").
Certain administrative functions with respect to the Trust will be
performed on behalf of the Trust by ________________, as administrator (the
"Administrator"), pursuant to an administration agreement (the "Administration
Agreement") between the Trust and the Administrator.
The Bonds are described more fully in Schedule I hereto and in the
Prospectus (as defined below). The Mortgage Loans will be of the type described
and will have the aggregate principal balance set forth in Schedule I. The Bonds
will consist of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class B, Class C, Class D, Class E and
Class F Bonds and will be issued in the denominations specified in Schedule I.
This Agreement, the Trust Agreement, the Indenture, the Servicing
Agreement, the Mortgage Loan Purchase Agreement and the Administration
Agreement, are collectively referred to herein as the "Basic Agreements."
Capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Indenture.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file numbers
of which are set forth in Schedule I hereto) for the registration of the
Offered Bonds, among other collateralized mortgage bonds, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement, as amended at the date
hereof, meets the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and complies in all other material respects with the 1933 Act and
the rules and regulations thereunder. The Company proposes to file with the
Commission pursuant to Rule 424 under the 1933 Act a supplement to the form
of prospectus included in such registration statement relating to the
Offered Bonds and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect
to the Offered Bonds and the Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the
date hereof, and all documents incorporated by reference from time to time
pursuant to Item 12 of Form S-3 under the 1933 that were filed under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), on or before
the effective date of such registration statement, each as amended at the
date hereof, but excluding Form T-1, is hereinafter called the
"Registration Statement"; the prospectus included in the Registration
Statement, after the Registration Statement, as amended, became effective,
or as subsequently filed with the Commission pursuant to Rule 424 under the
1933 Act, is hereinafter called the "Basic Prospectus"; such form of
prospectus supplemented by the supplement to the form of prospectus
relating to the Offered Bonds, in the form in which it shall be first filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as
so supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus that has heretofore been filed
pursuant to Rule 424 or, prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or Rule 424(a) is hereinafter called a
"Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first
filed pursuant to Rule 424 under the 1933 Act or, as amended or
supplemented, as of the date such amendment or supplement is filed pursuant
to Rule 424 under the 1933 Act, complied or will comply, as applicable, in
all material respects with the applicable requirements of the 1933 Act, the
1934 Act and the Trust Indenture Act of 1934, as amended (the "Trust
Indenture Act"), as applicable, and the rules and regulations thereunder,
(ii) the Registration Statement as of its effective date and as of the date
of this Agreement, and, as amended by any such post-effective amendment, as
of the effective date of such amendment, did not and will not contain any
untrue statement of a material fact and did not omit and will not omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented,
as of the issue date of such amendment or supplement and as of the Closing
Date, will not contain 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, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
________________ with full power and authority (corporate and other) to own
its properties and conduct its business, as now conducted by it, and to
enter into and perform its obligations under this Agreement, the Purchase
Agreement and the Indenture; and the Company has received no notice of
proceedings relating to the revocation or modification of any license,
certificate, authority or permit applicable to its owning such properties
or conducting such business which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business, operations, financial
condition or income of the Company.
(d) When the Final Prospectus is first filed pursuant to Rule 424
under the 1933 Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes effective,
when any supplement to the Final Prospectus is filed with the Commission,
and at the Closing Date, there has not and will not have been (i) any
request by the Commission for any further amendment of the Registration
Statement or the Final Prospectus or for any additional information, (ii)
any issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification
with respect to the suspension of the qualification of the Offered Bonds
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) This each of the Basic Agreements to which the Company is a party
have been, or will be, when executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered by the
Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (iii) public
policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
securities law liabilities.
(f) The Offered Bonds and the Basic Agreements will each conform in
all material respects to the descriptions thereof contained in the Final
Prospectus, and the Offered Bonds, when duly and validly authorized,
executed, authenticated and delivered in accordance with the Indenture and
paid for by the Underwriters as provided herein, will be duly and validly
issued and will constitute legal, valid and binding obligations of the
Trust enforceable against the Trust in accordance with their terms except
as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and will be entitled to the benefits of the Indenture.
The Indenture has been duly authorized and duly qualified under the Trust
Indenture Act.
(g) The Trust Certificates represent undivided ownership interests in
the Trust created by the Trust Agreement. The Trust Certificates have been
duly authorized, and each of the Trust Certificates, when validly
authenticated and delivered in accordance with the Trust Agreement will be
duly and validly issued, fully paid and non-assessable and will be entitled
to the benefits of the Trust Agreement.
(h) Neither the issuance of the Bonds, nor the execution and delivery
by the Company of each of the Basic Agreements to which it is a party, nor
the consummation by the Company of any of the transactions herein or
therein contemplated, nor compliance by the Company with the provisions
hereof or thereof, will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or
any statute, order or regulation applicable to the Company of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company, which, in any such case, would materially
and adversely affect the ability of the Company to perform its obligations
under the Basic Agreements. The Company is not a party to, bound by or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or is
reasonably likely in the future to materially and adversely affect, the
ability of the Company to perform its obligations under the Basic
Agreements.
(i) There are no actions or proceedings against, or investigations of,
the Company pending, or, to the knowledge of the Company, threatened,
before any court, administrative agency or other tribunal (i) asserting the
invalidity of the Basic Agreements or the Bonds, (ii) seeking to prevent
the issuance of the Bonds or the consummation of any of the transactions
contemplated by the Basic Agreements, (iii) that might materially and
adversely affect the performance by the Company of its obligations under,
or the validity or enforceability of, the Basic Agreements or the Offered
Bonds or (iv) seeking to affect adversely the federal income tax attributes
of the Bonds as described in the Final Prospectus.
(j) Neither the Company nor the Trust is, and after giving effect to
the issuance of the Trust Certificates or the offering and sale of the
Bonds, will be required to be registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) The Trust Agreement is not required to be qualified under the
Trust Indenture Act.
(l) As of the Closing Date, the Mortgage Loans will have been duly and
validly assigned and delivered to the Trustee, and the Indenture Trustee
will have acquired a valid and perfected, first priority security interest
therein and in the assets of the Trust, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(m) As of the Closing Date, the Company's representations and
warranties in the Basic Agreements to which it is a party will be true and
correct in all material respects.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Basic Agreements, the Trust
Certificates and the Bonds have been or will be paid at or prior to the
Closing Date.
(o) The Company 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
operated by it and as described in the Prospectus, and the Company has
received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the Company.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the applicable purchase price set
forth in Schedule I hereto, the respective portions of the Offered Bonds set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Offered Bonds
shall be made in the manner, on the date and at the time specified in Schedule I
hereto (or such later date not later than seven business days after such
specified date as the Underwriters shall designate), which date and time may be
postponed by agreement between the Underwriters and the Company or as provided
in Section 8 hereof (such date and time of delivery and payment for the Offered
Bonds being herein called the "Closing Date"). Delivery of the Offered Bonds, as
set forth on Schedule I hereto, shall be made to the Underwriters for their
respective accounts against payment by wire transfer of immediately available
funds by the several Underwriters of the applicable purchase price. Unless
delivery is made through the facilities of The Depository Trust Company, the
Offered Bonds shall be registered in such names and in such authorized
denominations as the Underwriters may request not less than 3 full business days
in advance of the Closing Date.
The Company agrees to have the Offered Bonds available for inspection,
checking and packaging by the Underwriters in New York, New York, not later than
1:00 P.M. on the business day prior to the Closing Date.
4. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to offer the Offered Bonds for sale to the public as set
forth in the Final Prospectus.
[(b) Each Underwriter agrees that any Class __ or Class __ Bonds sold by it
in the State of New York will be sold solely to institutional "accredited
investors" within the meaning of Rule 501(a)(1), (2) and (3) of Regulation D
under the 1933 Act in order to ensure compliance with the exemption from Section
352-e of the Real Estate Syndicate Act of New York.]
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will not file, on or prior to the Closing Date, any
amendment to the Registration Statement or file any supplement to
(including the supplement relating to the Offered Bonds included in the
Final Prospectus) the Basic Prospectus unless the Company has furnished to
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus to be
transmitted to the Commission for filing pursuant to Rule 424 under the
1933 Act. The Company will promptly advise the Underwriters (i) when the
Final Prospectus shall have been filed or transmitted to the Commission for
filing pursuant to Rule 424, (ii) when any amendment to the Registration
Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered Bonds
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or suspension and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Bonds is
required to be delivered under the 1933 Act, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the 1933 Act or the
rules and regulations thereunder, the Company will promptly prepare and
file with the Commission, subject to paragraph (a) of this Section 5, an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or
supplement is required to be contained in a post-effective amendment of the
Registration Statement, will use its reasonable best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible.
(c) The Company will (i) furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto that
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer in connection with the
Offered Bonds may be required by the 1933 Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any amendments
thereof and supplements thereto as the Underwriters may reasonably request,
and (ii) file promptly all reports and any information statements required
to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act, subsequent to the date of the Final
Prospectus and for so long as the delivery of a prospectus by an
Underwriter or dealer in connection with the Offered Bonds may be required
under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Bonds a report on Form 8-K (the "8-K")
setting forth specific information concerning the Offered Bonds and the
Mortgage Pool to the extent that such information is not set forth in the
Final Prospectus.
(d) The Company agrees that, so long as the Offered Bonds shall be
outstanding, it will make available to the Underwriters the annual
statement as to compliance delivered to the Trustee pursuant to Section
3.12 of the Indenture, as soon as such statements are furnished to the
Company. The Servicing Agreement will provide that the Master Servicer and
the Special Servicer furnish to the Underwriters all reports compiled by
either of them pursuant to the Servicing Agreement under the same terms and
conditions applicable to holders of the Offered Bonds.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Bonds for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect
so long as required for the distribution of the Offered Bonds; provided,
however, that the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
that would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) The Company will pay, to the extent not paid by the Mortgage Loan
Sellers pursuant to the Purchase Agreements, all costs and expenses in
connection with the transactions herein contemplated, including, but not
limited to: (i) the fees and disbursements of its counsel; (ii) the costs
and expenses of printing (or otherwise reproducing) and delivering the
Indenture and the Offered Bonds; (iii) accounting fees and disbursements
(except as set forth in Section 9(f)); (iv) the costs and expenses in
connection with the qualification or exemption of the Offered Bonds under
state securities or blue sky laws not to exceed $______, including filing
fees and reasonable fees and disbursements of counsel in connection with
the preparation of any blue sky survey and in connection with any
determination of the eligibility of the Offered Bonds for investment by
institutional investors and the preparation of any legal investment survey;
(v) the expenses of printing any such blue sky survey and legal investment
survey; (vi) the costs and expenses in connection with the preparation,
printing and filing of the Registration Statement (including exhibits
thereto), the Basic Prospectus, the Preliminary Final Prospectus and the
Final Prospectus, the preparation and printing of this Agreement and the
furnishing to the Underwriters of such copies of each Preliminary Final
Prospectus and Final Prospectus as the Underwriters may reasonably request
and (vii) the fees of each Rating Agency (as defined herein). The
Underwriters shall be responsible for paying all costs and expenses
incurred by them in connection with the offering of the Offered Bonds.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Offered Bonds shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed after the date hereof and prior to
the Closing Date and as of the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the ▇▇▇▇
▇▇▇.
(b) The Company shall have delivered to you a certificate of the
Company, signed by the Chairman, the President, a vice president or an
assistant vice president of the Company and dated the Closing Date, to the
effect that the signer of such certificate has carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct in all material respects at and as of the Closing Date
with the same effect as if made on the Closing Date; (ii) the Company has,
in all material respects, complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the Closing Date; (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened and (iv)
nothing has come to the attention of such officer that would lead such
officer to believe that the Final Prospectus contains any untrue statement
of a material fact or omits to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, special counsel for the Company, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation in good standing under the laws
of the State of Delaware with corporate power to enter into and
perform its obligations under each of the Basic Agreements;
(ii) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, and not withdrawn, no
proceedings for that purpose have been instituted or threatened, and
not terminated, and the Registration Statement, the Final Prospectus
and each amendment thereof or supplement thereto as of their
respective effective or issue dates complied as to form in all
material respects with the applicable requirements of the 1933 Act and
the rules and regulations thereunder; and such counsel does not
believe that the Registration Statement (which, for purposes of this
clause, shall not be deemed to include any exhibits thereto or any
documents or other information incorporated therein by reference), or
any amendment thereof, at the time it became effective and at the date
of this Agreement, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its issue date and as of the Closing Date, or
as amended or supplemented, as of the issue date of such amendment or
supplement and as of the Closing Date, contains any untrue statement
of a material fact or omits 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;
(iii) Each of the Basic Agreements to which the Company is a
party have been duly authorized, executed and delivered by the Company
and each such agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
(A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors, (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of such agreements that purport to provide
indemnification or contribution from securities law liabilities;
(iv) The Offered Bonds, when duly and validly executed,
authenticated and delivered in accordance with the Indenture and paid
for by the Underwriters as provided herein, will be entitled to the
benefits of the Indenture;
(v) The statements in the Basic Prospectus and the Final
Prospectus, as the case may be, under the headings "Certain Federal
Income Tax Consequences" and "ERISA Considerations," to the extent
that they constitute matters of federal law or legal conclusions with
respect thereto, are correct in all material respects;
(vi) No consent, approval, authorization or order of any New York
or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein,
except (i) such as have been or will have been obtained under the 1933
Act and the Trust Indenture Act prior to the Closing Date in
connection with the offer, sale, purchase and distribution of the
Bonds by the Underwriters, (ii) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Offered Bonds by the Underwriters, and (iii) any
recordation of the assignment of the Mortgage Loans to the Trustee
pursuant to the Indenture that have not yet been completed and such
other approvals as have been obtained;
(vii) Neither the Company, nor the Trust is, and, after giving
effect to the offering and sale of the Bonds, will be, an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act") that is registered or is required to be registered
under the 1940 Act;
(viii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act;
(ix) As of the Closing Date, the Mortgage Loans will have been
duly and validly pledged and delivered to the Trustee, and the Trustee
will have acquired a valid and perfected, first priority security
interest therein and in the assets of the Trust including the proceeds
thereof; and
(x) Neither the issuance and sale or transfer of the Bonds, nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of the Purchase Agreements
or the Indenture will conflict with or result in a breach or violation
of any term or provision of, or constitute a default (or an event
which with the passing of time or notification, or both, would
constitute a default) under, the certificate of incorporation or
by-laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a
party or by which it is bound, or any New York or federal statute or
regulation applicable to the Company or, to the knowledge of such
counsel, any order of any New York or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company.
Such opinion may (x) express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the
Purchase Agreements and the Indenture, (y) assume the due authorization,
execution and delivery of the instruments and documents referred to therein
by the parties thereto other than the Company and (z) be qualified as an
opinion only on the federal laws of the United States of America and the
laws of the State of New York. Additionally, if so rendered, Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ may rely on the opinion of in-house counsel for the
Company as to matters relating to the Company.
(d) The Underwriters shall have received from ____________________ and
____________________ (the "Accountants"), certified public accountants, one
or more letters, dated the date hereof and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(e) The Bonds have been given the rating, if any, set forth in
Schedule I hereto by ____________________ and ____________________ ("_____"
and, together with _____, the "Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the Trustee,
a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form
and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(i) The Underwriters shall have received from counsel for each of the
Master Servicer and Special Servicer, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
counsel for the Underwriters.
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company, each Mortgage Loan Seller or the Master Servicer
supplied to the Rating Agencies or the Trustee relating to certain matters
with respect to the Offered Bonds, the Mortgage Loan Sellers and the
Mortgage Loans. Any such opinions shall be dated the Closing Date and
addressed to the Underwriters or accompanied by the reliance letters to the
Underwriters or shall state that the Underwriters may rely upon them.
(k) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory
in form and substance to the Underwriters and counsel for the Underwriters,
and the Underwriters and counsel for the Underwriters shall have received
such information, certificates and documents as they may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter, and
each person who controls any Underwriter within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law 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 or alleged untrue
statement of a material fact contained in the Registration Statement or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein (a) in reliance upon and in conformity with
written information furnished to the Company as herein stated by or on
behalf of any Underwriter specifically for use in connection with the
preparation thereof or (b) arising out of or based upon the failure of any
Underwriter to comply with any provision of Section 9 hereof; provided,
further, however, that with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, the indemnity
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased the Offered Bonds (or to the benefit of any person
controlling such Underwriter), to the extent that any such loss, claim,
damage or liability of such Underwriter or controlling person results from
the fact that a copy of the Basic Prospectus or the Final Prospectus
correcting such misstatement or omission and previously delivered to such
Underwriter was not sent or given to such person at or prior to the written
confirmation of the sale of such Offered Bonds to such person or from the
fact that any amendment of or supplement to the registration statement for
the registration of the Offered Bonds, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus correcting such
misstatement or omission and delivered to the Underwriters at least 24
hours prior to the Closing Date was not sent or given to such person prior
to the settlement of the sale of the Offered Bonds to such person (unless
the Company shall have agreed that such amendment or supplement need not be
so sent or given). This indemnity agreement will be in addition to any
liability which the Company may otherwise have; provided, however, that the
Company shall not be liable to any Underwriter for losses of anticipated
profits from the transactions covered by this Agreement.
(b) Each Underwriter severally will indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company
within the meaning of either the 1933 Act or the 1934 Act, against any and
all losses, claims, damages or liabilities, joint or several, to which the
Company or any of them may become subject under the 1933 Act, the 1934 Act,
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or 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 or (ii) the failure of such
Underwriter to comply with any provision of Section 9 hereof, and each
Underwriter agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action, but, in the case of clause (i) above, only with reference to
written information furnished to the Company by or on behalf of such
Underwriter specifically for use in the Registration Statement, or in any
revision or amendment thereof, or supplement thereto, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, and,
in the case of clause (ii) above, only the Underwriter who failed to comply
with Section 9 hereof shall have the foregoing obligations for such
failure. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have.
The Company and each Underwriter acknowledges and agrees that for all
purposes of this Agreement the statements set forth in the first, third and
fourth sentences of the second to last paragraph of the cover page of the
Final Prospectus, the second sentence of the third paragraph after the
footnotes on page S-__ of the Final Prospectus and the first paragraph, the
first sentence of the third paragraph and the second sentence of the
seventh paragraph commencing on page S-__ under the heading "Method of
Distribution" in the Final Prospectus, together with the Underwriter
Information (as defined in Section 9) constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnities, and
each Underwriter confirms that such statements are or will be, at the time
made, correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may
have to any indemnified party (x) hereunder unless such failure to notify
prejudices the position of the indemnifying party or results in the loss of
one or more defenses to the related cause of action or (y) otherwise than
under this Section 7. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel (and one local counsel, if it deems so necessary) to assert such
legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by any indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party for expenses incurred by the indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing
the indemnified parties under subsection (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). The indemnifying party shall not be liable for any
settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such
consent, the indemnifying party shall indemnify the indemnified party from
and against any indemnifiable losses, claims, damages and liabilities by
reason of such settlement. No indemnifying party who has elected to assume
the defense of such action shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable in accordance with its terms to an indemnified
party under this Section 7, then the Company and each Underwriter, to the
extent of underwriting discounts and commissions received by it, shall
individually contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to
in subsection (a) or (b) above, in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on the one hand
and each Underwriter on the other from the offering of the Offered Bonds
(taking into account the portion of the proceeds of the offering realized
by each party) and (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above, but
also to reflect the relative fault of the Company on the one hand and each
Underwriter on the other in connection with the statement or omission or
failure to comply that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations (taking
into account the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission or failure to
comply, and any other equitable consideration appropriate under the
circumstances). The relative benefits received by the Company on the one
hand and each Underwriter on the other shall be in such proportion as the
total net proceeds from the offering of the Offered Bonds (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by each Underwriter with respect to such offering.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the respective Underwriter and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission or failure to
comply. Notwithstanding anything to the contrary in this Section 7(d), if
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in this Section 7(d) arise out of an untrue statement or
alleged untrue statement of a material fact contained in any Underwriter
8-K (as such term is defined in Section 9 hereof) or the failure of any
Underwriter to comply with any provision of Section 9 hereof, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and the respective Underwriter on the other (determined in accordance with
the preceding sentence) in connection with the statements or omissions in
such Underwriter 8-K, or such failure to comply, which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other equitable considerations. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d)
subject to the limitations therein provided under subsection (c).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Offered Bonds underwritten and distributed by it
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise paid or become liable to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) or willful failure to comply with Section 9
hereof shall be entitled to contribution from any person who was not also
guilty of such fraudulent misrepresentation or willful failure to comply.
The Underwriters' obligation in this subsection (d) to contribute shall be
several in proportion to their respective underwriting obligations and not
joint.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within
the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses,
claims, damages or liabilities, joint or several, to which any
Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934
Act or other federal or state statutory law or regulation, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement of material fact contained in any computational or other written
materials developed by, mailed or otherwise transmitted by such
indemnifying Underwriter in connection with the Offered Bonds or in any
revision or amendment thereof or supplement thereto or (ii) the failure of
such indemnifying Underwriter to comply with any provision of Section 9
hereof, and agrees to reimburse each such Non-Indemnifying Underwriter, as
incurred for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
8. Default by an Underwriter. (a) If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
non-defaulting Underwriters may make arrangements for the purchase of the
Offered Bonds which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Section 5(f) and except
that the provisions of Sections 7 and 9 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriters" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule 1 hereto that, pursuant to this Section 8 purchases Offered
Bonds which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Offered Bonds of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of the counsel for the Company or counsel for the Underwriters may be necessary
in the Registration Statement and/or the Final Prospectus or in any other
document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and/or the Final
Prospectus that effects any such changes.
9. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which the
Registration Statement became effective and up to and including the date on
which the Final Prospectus with respect to the Offered Bonds is first made
available to the Underwriters, the Underwriters may furnish to various
potential investors in Offered Bonds, in writing: (i) "Computational
Materials," as defined in a no-action letter (the "▇▇▇▇▇▇ No-Action
Letter") issued by the staff of the Commission on May 20, 1994 to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, et al., as modified by a no-action letter
(the "First PSA No-Action Letter") issued by the staff of the Commission on
May 27, 1994 to the Public Securities Association (the "PSA") and as
further modified by a no-action letter (the "Second PSA No-Action Letter,"
and together with the ▇▇▇▇▇▇ No-Action Letter and the First PSA No-Action
Letter, the "No-Action Letters") issued by the staff of the Commission on
February 17, 1995 to the PSA; (ii) "Structural Term Sheets," as defined in
the Second PSA No-Action Letter and/or (iii) "Collateral Term Sheets," as
defined in the Second PSA No-Action Letter.
(b) In connection with the Offered Bonds, each Underwriter shall
furnish to the Company, at least 1 business day prior to the time of filing
of the Final Prospectus pursuant to Rule 424 under the 1933 Act, all
Computational Materials used by such Underwriter and required to be filed
with the Commission in order for such Underwriter to avail itself of the
relief granted in the No-Action Letters (such Computational Materials, the
"Furnished Computational Materials").
(c) In connection with the Offered Bonds, each Underwriter shall
furnish to the Company, at least 1 business day prior to the time of filing
of the Final Prospectus pursuant to Rule 424 under the Act, all Structural
Term Sheets used by such Underwriter and required to be filed with the
Commission in order for such Underwriter to avail itself of the relief
granted in the No-Action Letters (such Structural Term Sheets, the
"Furnished Structural Term Sheets").
(d) In connection with the Offered Bonds, each Underwriter shall
furnish to the Company, within 1 business day after the first use thereof,
all Collateral Term Sheets used by such Underwriter and required to be
filed with the Commission in order for such Underwriter to avail itself of
the relief granted in the No-Action Letters (such Collateral Term Sheets,
the "Furnished Collateral Term Sheets") and shall advise the Company of the
date on which each such Collateral Term Sheet was first used.
(e) Each Underwriter shall prepare for signature by the Company and
filing and (following signature by the Company) cause to be filed with the
Commission one or more current reports on Form 8-K (collectively, together
with any amendments and supplements thereto, the "Underwriter 8-Ks," and
each an "Underwriter 8-K") with respect to all Furnished Computational
Materials, Structural Term Sheets and Collateral Term Sheets used by it
(pro rating the costs and expenses thereof on the basis of the number of
pages of each such Underwriter 8-K to the extent that more than one
Underwriter contributes such sheets to such Underwriter 8-Ks) such that
such Underwriter may avail itself of the relief granted in the No-Action
Letters. In particular, each Underwriter shall cause to be filed with the
Commission (i) all of its Furnished Computational Materials and all of its
Furnished Structural Term Sheets on an Underwriter 8-K prior to or
concurrently with the filing of the Final Prospectus with respect to the
Offered Bonds pursuant to Rule 424 under the 1933 Act; and (ii) all of its
Furnished Collateral Term Sheets on an Underwriter 8-K not later than 2
business days after the first use thereof.
(f) Each Underwriter shall, if required by the Company, reasonably
cooperate with the Company and with the Accountants in obtaining a letter
or letters, in form and substance satisfactory to the Company and such
Underwriter, of the Accountants regarding the information in any
Underwriter 8-K consisting of Furnished Computational Materials and/or
Furnished Structural Term Sheets. Any such letter shall be obtained prior
to the filing of any such Underwriter 8-K with the Commission.
(g) Each Underwriter represents and warrants to, and covenants with,
the Company that as presented in any Underwriter 8-K, the Underwriter
Information (defined below) is not misleading and not inaccurate in any
material respect and that any Pool Information (defined below) contained in
any Underwriter 8-K prepared by it which is not otherwise inaccurate in any
material respect is not presented in such Underwriter 8-K prepared by it in
a way that is either misleading or inaccurate in any material respect. Each
Underwriter further covenants with the Company that if any Computational
Materials or ABS Term Sheets (as such term is defined in the Second PSA
No-Action Letter) contained in any Underwriter 8-K are found to include any
information that is misleading or inaccurate in any material respect, such
Underwriter promptly shall inform the Company of such finding, provide the
Company with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, and promptly prepare for signature by the
Company and filing and (following signature by the Company) cause to be
delivered for filing to the Commission in accordance herewith, an
Underwriter 8-K containing such revised and/or corrected Computational
Materials or ABS Term Sheets, as the case may be.
(h) Each Underwriter covenants that all Computational Materials and
ABS Term Sheets used by it shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [THE UNDERWRITER]
AND NOT BY IMPERIAL CREDIT COMMERCIAL MORTGAGE ACCEPTANCE CORP.
("IMPERIAL CREDIT") OR ANY OF ITS AFFILIATES (OTHER THAN
____________________)."
(i) Each Underwriter covenants that all Collateral Term Sheets used by
it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
(j) Each Underwriter covenants that all Collateral Term Sheets (other
than the initial Collateral Term Sheet) shall contain the following
additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN
ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) Each Underwriter covenants that it shall cause the following
legend to be placed in capital letters at the top of the cover page of each
group of Computational Materials:
"IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS [SPECIFY
DOCUMENT] IS BEING FILED IN PAPER PURSUANT TO A CONTINUING
HARDSHIP EXEMPTION."
(1) Each Underwriter shall deliver to the Company a copy of each
Underwriter 8-K prepared by it (including written evidence of filing)
promptly upon filing the same with the Commission (but in any event not
later than the earlier to occur of (i) the second business day after filing
and (ii) the Closing Date).
(m) For purposes of this Agreement, the term "Underwriter Information"
means such portion, if any, of the information contained in any Underwriter
8-K that is not Pool Information or Prospectus Information; provided,
however, that information contained in an Underwriter 8-K that is not Pool
Information or Prospectus Information shall not constitute Underwriter
Information to the extent such information is inaccurate or misleading in
any material respect directly as a result of it being based on Pool
Information or Prospectus Information that is inaccurate or misleading in
any material respect. "Pool Information" means the information furnished to
the Underwriters by the Company regarding the Mortgage Loans and
"Prospectus Information" means the information contained in (but not
incorporated by reference in) any Preliminary Final Prospectus, provided,
however, that if any information that would otherwise constitute Pool
Information or Prospectus Information is presented in any Underwriter 8-K
in a way that is either inaccurate or misleading in any material respect,
such information shall not be Pool Information or Prospectus Information.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for all Bonds if prior to such time (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Offered Bonds on the terms specified herein.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Offered Bonds. The provisions of Section
7 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, hand
delivered or sent by facsimile transmission and confirmed to them at, in the
case of ____________________, to it at ____________________, Attention:
____________________, fax number ____________________, and in the case of
____________________, to it at ____________________, Attention:
____________________, fax number; or, if sent to the Company, will be mailed,
hand delivered or sent by facsimile transmission and confirmed to it at Imperial
Credit Commercial Mortgage Acceptance Corp., __________________________________,
Attention: ____________________, fax number ____________________.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
IMPERIAL CREDIT COMMERCIAL
MORTGAGE ACCEPTANCE CORP.
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
[Insert name of Underwriter]
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
[Insert name of Underwriter]
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
SCHEDULE I
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Underwriting Agreement, dated _________ __, 199_
As used in this Agreement, the term "Registration Statement" refers to the
Company's registration statement on Form S-3 (File No. __________, __________).
Title and Description of Bonds: Collateralized Mortgage Bonds, Series 199_-__.
Initial aggregate Certificate Balance of the Offered Bonds: $____________
(Approximate)
Initial Bond
Balance or Initial Bond [ ] [ ]
Bonds Notional Amount(1) Interest Rate Rating Rating
----- ------------------ ------------- ------ ------
The aggregate purchase price for the Offered Bonds purchased from the Company by
____________________ will be equal to ____% of the aggregate initial Certificate
Balance of the Offered Bonds purchased by it, and the aggregate purchase price
for the Offered Bonds purchased from the Company by ____________________ will be
equal to ____% of the aggregate initial Certificate Balance of the Offered Bonds
purchased by it, plus, in each case, accrued interest thereon at their
respective Pass-Through Rates, if any, from the Cut-off Date.
Closing Time, Date and Location: 10:00 A.M. on _________ __, 199_ at the offices
of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Issuance and Delivery of Bonds: The Offered Bonds will be delivered in
book-entry form through the Same-Day Funds Settlement System of The Depository
Trust Company.
SCHEDULE II
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Class [Insert name of Underwriter] [Insert name of Underwriter]