EXECUTION COPY
$400,000,000
IMC HOME EQUITY LOAN TRUST 1997-2
IMC Home Equity Loan Pass-Through Certificates,
Series 1997-2
UNDERWRITING AGREEMENT
March 13, 1997
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
On behalf of itself and
PaineWebber Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NOMURA SECURITIES INTERNATIONAL, INC.
Two World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized the issuance and sale of IMC Home Equity Loan Pass-Through
Certificates, Series 1997-2 consisting of (a) the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates, the Class A-6 Certificates and the Class A-7
Certificates (collectively, the "Fixed Rate Certificates"), (b) the Class A-8
Certificates (collectively, with the Fixed Rate Certificates the "Offered
Certificates") and (c) the Class R Certificates (the "Class R Certificates," and
collectively with the Offered Certificates, the "Certificates"), evidencing
interests in one of two pools of fixed rate and adjustable rate home equity
loans (the "Home Equity Loans"). The Fixed Rate Certificates will represent
undivided ownership interests in Home Equity Loans which are secured by first
and second lien mortgages or deeds of trust primarily on one-to-four-family
residential properties. The Class A-8 Certificates will represent undivided
ownership interests in Home Equity Loans which are secured solely by first lien
mortgages or deeds of trust primarily on one-to-four-family residential
properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto (the "Underwriters"), and the Underwriters are
purchasing, severally, only the Offered Certificates set forth opposite their
names in Schedule A, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. Bear, ▇▇▇▇▇▇▇ & Co. Inc.
("Bear ▇▇▇▇▇▇▇") is acting for itself and as representative of PaineWebber
Incorporated, and Nomura Securities International, Inc. ("Nomura") is acting on
behalf of itself. Each of Bear ▇▇▇▇▇▇▇ and Nomura, acting in their
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respective capacities as Underwriters and in such capacity, is hereinafter
referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of March 1, 1997 among the
Depositor, Industry Mortgage Company, L.P. ("IMC"), as seller and as servicer
(in such capacity, the "Servicer" or the "Seller," as the case may be), and The
Chase Manhattan Bank, as trustee (the "Trustee"). The general partner of the
Seller and Servicer is Industry Mortgage Corporation (the "General Partner").
The Certificates will evidence fractional undivided interests in the trust (the
"Trust"). The assets of the Trust will initially include, among other things, a
pool of fixed rate Home Equity Loans and a pool of adjustable rate Home Equity
Loans (collectively, the "Initial Home Equity Loans") and such amounts as may be
held by the Trustee in the Pre-Funding Account (the "Pre-Funding Account"), the
Capitalized Interest Account (the "Capitalized Interest Account") and any other
accounts held by the Trustee for the Trust. On the Closing Date, $147,650.27
will be deposited in the name of the Trustee in the Pre-Funding Account of which
$132,868.83 may be used to acquire fixed rate Subsequent Home Equity Loans (as
defined below) and $14,781.44 may be used to acquire adjustable rate Subsequent
Home Equity Loans. It is intended that additional Home Equity Loans satisfying
the criteria specified in the Pooling and Servicing Agreement (the "Subsequent
Home Equity Loans") will be purchased by the Trust for inclusion in the
applicable Home Equity Loan Group from the Depositor from time to time on or
before March 31, 1997 from funds allocated to such Home Equity Loan Group and on
deposit in the Pre-Funding Account at the time of execution and delivery of each
Subsequent Transfer Agreement ("Subsequent Transfer Agreement"). Funds in the
Capitalized Interest Account will be applied by the Trustee to cover shortfalls
in interest during the Funding Period. The Offered Certificates will initially
represent an undivided ownership interest in the sum of (i) the Initial Home
Equity Loans in an amount of $399,852,349.73 as of the close of business on
March 1, 1997 (the "Cut-Off Date") and (ii) $147,650.27 on deposit in the
Pre-Funding Account. Each Class of Offered Certificates will also have the
benefit of one of two insurance policies (each, an "Insurance Policy") issued by
MBIA Insurance Corporation, a monoline insurance company (the "Certificate
Insurer"). Each Insurance Policy will be issued pursuant to the insurance
agreement (the "Insurance Agreement") among the Certificate Insurer, the
Depositor and the Trustee. A form of the Pooling and Servicing Agreement has
been filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, IMC will transfer to the Depositor and
the Depositor will transfer to the Trust all of their right, title and interest
in and to the unpaid principal balances of the Initial Home Equity Loans as of
the Cut-Off Date and the collateral securing each Initial Home Equity Loan.
SECTION 1 Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
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A. A Registration Statement on Form S-3 (No. 333-4911) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such Registration
Statement have been delivered by the Depositor to the Underwriters. As
used in this Agreement, "Effective Time" means the date and the time as
of which such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time,
including any documents incorporated by reference therein at such time;
and "Basic Prospectus" means such final prospectus dated July 23, 1996;
and "Prospectus Supplement" means the final prospectus supplement
relating to the Offered Certificates, to be filed with the Commission
pursuant to paragraph (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of
the date of the Prospectus and any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of the Prospectus, and incorporated by
reference in the Prospectus and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the
Depositor filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. The Commission has not issued
any order preventing or suspending the use of the Prospectus. There are
no contracts or documents of the Depositor which are required to be
filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so
filed or incorporated by reference therein on or prior to the Effective
Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 8(D) hereof for filing on Form 8-K. The conditions
for use of Form S-3, as set forth in the General Instructions thereto,
have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus
as of its date, and as amended or supplemented as of the Closing Date,
does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to
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make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in
writing by the Underwriters expressly for use therein. The only
information furnished by the Underwriters or on behalf of the
Underwriters for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(I)
hereof.
C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation is made as to documents
deemed to be incorporated by reference in the Prospectus as the result
of filing a Form 8-K at the request of the Underwriters except to the
extent such documents reflect information furnished by the Depositor to
the Underwriters for the purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
this Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement or any Subsequent
Transfer Agreement and to cause the Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the
subject (a) which if determined adversely to the Depositor
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would have a material adverse effect on the business or financial
condition of the Depositor, (b) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, the Indemnification
Agreement, the Insurance Agreement, the Certificates, or any Subsequent
Transfer Agreement, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the
transactions contemplated by the Pooling and Servicing Agreement, the
Insurance Agreement, the Indemnification Agreement, this Agreement or
any Subsequent Transfer Agreement, as the case may be, or (d) which
might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, this Agreement, the Insurance
Agreement, the Indemnification Agreement, the Certificates, or any
Subsequent Transfer Agreement.
G. This Agreement has been, and the Pooling and Servicing Agreement,
the Indemnification Agreement, each Subsequent Transfer Agreement and
the Insurance Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized, executed and
delivered by the Depositor, and this Agreement constitutes, and the
Pooling and Servicing Agreement, the Indemnification Agreement and the
Insurance Agreement when executed and delivered as contemplated herein,
will constitute, legal, valid and binding instruments enforceable
against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency moratorium or other similar laws affecting
creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law), and (z) with respect to rights of indemnity under this
Agreement, the Indemnification Agreement and the Insurance Agreement,
limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement, any Subsequent Transfer Agreement, the
Indemnification Agreement and the Insurance Agreement by the Depositor
and the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Certificates do not and
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the Depositor is
bound or to which any of the properties or assets of the Depositor or
any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Depositor, nor will such actions result in any
violation of the provisions of the articles of incorporation or by-laws
of the Depositor or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Depositor or any of its properties or assets, which breach or violation
would have a material adverse effect on the business, operations or
financial condition of the Depositor.
I. The Depositor has no reason to believe that ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
are not independent public accountants with respect to the Depositor as
required by the
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Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly
authorized by the Depositor, and assuming the Trustee has been duly
authorized to do so, when executed, authenticated, issued and delivered
by the Trustee in accordance with the Pooling and Servicing Agreement,
the Certificates will be validly issued and outstanding and will be
entitled to the benefits provided by the Pooling and Servicing
Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates and
the sale of the Offered Certificates to the Underwriters, or the
consummation by the Depositor of the other transactions contemplated by
this Agreement, the Pooling and Servicing Agreement, any Subsequent
Transfer Agreement, the Indemnification Agreement and the Insurance
Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters or as have
been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the
Depositor has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which if decided adversely to the Depositor would, singly or
in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Initial Home
Equity Loans conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any person
any of its right or title in the Initial Home Equity Loans, in the
Pooling and Servicing Agreement or in the Certificates being issued
pursuant thereto; and (iii) have the power and authority to sell its
interest in the Initial Home Equity Loans to the Trustee and to sell
the Offered Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the
Trustee will have acquired beneficial ownership of all of the
Depositor's right, title and interest in and to the Home Equity Loans.
Upon delivery to the Underwriters of the Offered Certificates, the
Underwriters will have good title to the Offered Certificates, free of
any Liens.
N. At the time of execution and delivery of any Subsequent Transfer
Agreement, the Depositor will: (i) have good title in the Subsequent
Home Equity Loans conveyed by the Seller, free and clear of any Liens;
(ii) not have assigned to any person any of its right or title in the
Subsequent Home Equity Loans, in the Pooling
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and Servicing Agreement or in the Certificates being issued pursuant
thereto; and (iii) have the power and authority to sell the Subsequent
Home Equity Loans to the Trustee. Upon execution and delivery of the
Subsequent Transfer Agreement by the Trustee, the Trustee will have
acquired beneficial ownership of all of the Depositor's right, title
and interest in and to the Subsequent Home Equity Loans.
O. As of the Cut-Off Date, each of the Initial Home Equity Loans will
meet the eligibility criteria described in the Prospectus and will
conform to the descriptions thereof contained in the Prospectus.
P. As of any Subsequent Transfer Date, each of the Subsequent Home
Equity Loans will meet the eligibility criteria described in the
prospectus and will conform to the descriptions thereof contained in
the Prospectus.
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of
such term under the Investment Company Act of 1940 (the "1940 Act") and
the rules and regulations of the Commission thereunder.
R. At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
S. At the Closing Date, the Offered Certificates shall have been rated
in the highest rating category by at least two nationally recognized
rating agencies.
T. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement and the Certificates have
been paid or will be paid at or prior to the Closing Date.
U. At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Pooling and Servicing Agreement and the
Insurance Agreement will be true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
an Underwriter or counsel for the Underwriters in connection with an offering of
the Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to each Underwriter, and each Underwriter agrees (except as
provided in Sections 10 and 11 hereof)severally and not jointly to purchase from
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the Depositor the aggregate initial principal amounts or percentage interests of
the respective Class or Classes of Offered Certificates set forth opposite their
names on Schedule A, at the purchase price or prices set forth in Schedule A.
The Underwriters may offer the Offered Certificates to certain dealers at such
prices less a concession not in excess of the respective amounts set forth in
Schedule A. The Underwriters may allow and such dealers may reallow a discount
to certain dealers not in excess of the respective amounts set forth in Schedule
A.
SECTION 3 Delivery and Payment. Delivery of and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
Stroock & Stroock & ▇▇▇▇▇ 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 March 20, 1997, or at such other time or
date as shall be agreed upon in writing by the Representative and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Offered Certificates shall be made to the applicable
Representative for the accounts of the applicable Underwriters against payment
of the purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the applicable Representative may
request in writing at least two business days prior to the Closing Date. The
Offered Certificates will be made available for examination by the
Representatives no later than 2:00 P.M. New York City time on the first business
day prior to the Closing Date.
SECTION 4 Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Offered Certificates for sale to the public as set forth in the Prospectus.
SECTION 5 Covenants of the Depositor and IMC. The Depositor and, to the
extent the provisions of Section I. below relate to IMC, IMC each agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the
Underwriters to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and,
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Offered Certificates; to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (i) any order preventing or
suspending the use of the Prospectus; (ii) the suspension of the
qualification of the
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Offered Certificates for offering or sale in any jurisdiction; (iii)
the initiation of or threat of any proceeding for any such purpose;
(iv) any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information. In the event of the issuance of any stop order or of any
order preventing or suspending the use of the Prospectus or suspending
any such qualification, the Depositor promptly shall use its best
efforts to obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or sale
of the Offered Certificates, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, the Depositor shall notify
the Underwriters and, upon the Underwriters' request, shall file such
document and prepare and furnish without charge to the Underwriters and
to any dealer in securities as many copies as the Underwriters may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which corrects such statement or omission
or effects such compliance, and in case the Underwriters are required
to deliver a Prospectus in connection with sales of any of the Offered
Certificates at any time nine months or more after the Effective Time,
upon the request of the Underwriters but at their expense, the
Depositor shall prepare and deliver to the Underwriters as many copies
as the Underwriters may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission.
E. The Depositor will cause any Computational Materials (as defined
below) with
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respect to the Offered Certificates which are delivered by any
Underwriter to the Depositor to be filed with the Commission on a
Current Report on Form 8-K (the "Form 8-K -- Computational Materials")
at or before the time of filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act; provided, however, that the Depositor shall
have no obligation to file any materials which, in the reasonable
determination of the Depositor after consultation with such
Underwriter, (i) are not required to be filed pursuant to the ▇▇▇▇▇▇
Letters (as defined below) or (ii) contain any erroneous information or
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the
Depositor shall have no obligation to review or pass upon the accuracy
or adequacy of, or to correct, any Computational Materials provided by
any Underwriter to the Depositor as aforesaid. For purposes hereof, as
to each Underwriter, the term "Computational Materials" shall mean
those materials delivered by an Underwriter to the Depositor within the
meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I and certain affiliates and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance
of the Commission to the Public Securities Association (together, the
"▇▇▇▇▇▇ Letters") for which the filing of such material is a condition
of the relief granted in such letters.
F. To furnish the Underwriters and counsel for the Underwriters, prior
to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Certificates: (i) amendment to the Registration Statement or supplement
to the Prospectus, or document incorporated by reference in the
Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
G. To make generally available to holders of the Offered Certificates
as soon as practicable, but in any event not later than 90 days after
the close of the period covered thereby, a statement of earnings of the
Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Depositor, Rule 158) and covering a period of at least twelve
consecutive months beginning not later than the first day of the first
fiscal quarter following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States or elsewhere as the Underwriters may designate, and
maintain or cause to be maintained such qualifications in effect for as
long as may be required for the distribution of the Offered
Certificates. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Offered Certificates have been so qualified.
I. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates backed by home equity loans or
other similar securities
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representing interest in or secured by other mortgage-related assets
originated or owned by the Depositor or IMC shall be publicly offered,
sold nor shall the Depositor or IMC enter into any contractual
arrangements that contemplate the public offering or sale of such
securities for a period of seven (7) business days following the
commencement of the offering of the Offered Certificates to the public.
J. So long as the Offered Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and
Servicing Agreement, to deliver to the Underwriters as soon as such
statements are furnished to the Owners: (i) the annual statement as to
compliance delivered to the Trustee pursuant to Section 8.16 of the
Pooling and Servicing Agreement; (ii) the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to
Section 8.17 of the Pooling and Servicing Agreement; (iii) the monthly
servicing report furnished to the Trustee pursuant to Section 7.08 of
the Pooling and Servicing Agreement; and (iv) the monthly reports
furnished to the Certificateholders pursuant to Section 7.09 of the
Pooling and Servicing Agreement.
K. To apply the net proceeds from the sale of the Offered Certificates
in the manner set forth in the Prospectus.
SECTION 6 Conditions to the Underwriters' Obligations. The obligations
of the Underwriters to purchase the Offered Certificates pursuant to this
Agreement are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor and IMC herein
contained; (ii) the performance by the Depositor of all of its obligations
hereunder; and (iii) the following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
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 this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all
respects to the Underwriters and their counsel, and the Depositor shall
have furnished to such counsel all documents and information that they
may reasonably request to
11
enable them to pass upon such matters.
▇. ▇▇▇▇▇ & ▇▇▇▇▇▇ shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act,
as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement and
the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates (other than the financial and statistical information
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with
the applicable requirements of the 1933 Act and the rules and
regulations thereunder.
3. To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a
character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Certificates" and
"Administration" and in the Prospectus Supplement under the
captions "Description of the Class A Certificates" and "The
Pooling and Servicing Agreement," to the extent such
statements purport to summarize certain provisions of the
Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Prospectus and the
Prospectus Supplement under the captions "ERISA
Considerations" and "Federal Income Tax Consequences" to the
extent that they constitute matters of federal law, provide a
fair and accurate summary of such law or conclusions.
6. The Pooling and Servicing Agreement conforms in all
material respects to the description thereof contained in the
Prospectus and is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended.
12
7. Neither the Depositor nor the Trust is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
8. Assuming that (a) the Trustee causes the Trust (other than
the Non-REMIC Accounts), as the Trustee has covenanted to do
in the Pooling and Servicing Agreement, to be treated as a
"real estate mortgage investment conduit" (the "REMIC"), as
such term is defined in the Internal Revenue Code of 1986, as
amended (the "Code") and (b) the parties to the Pooling and
Servicing Agreement comply with the terms thereof, the Offered
Certificates will be treated as "regular interests" in the
REMIC and the Class R Certificates will constitute the sole
class of "residual interest" in the REMIC. The Trust is not
subject to tax upon its income or assets by any taxing
authority of the State of New York.
9. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending that would
adversely affect the status of the Trust (other than the
Non-REMIC Accounts) as a REMIC.
10. As a consequence of the qualification of the Trust (other
than the Non- REMIC Accounts) as a REMIC, the Offered
Certificates will be treated as "qualifying real property
loans" under Section 593(d) of the Code, "regular. . .
interest(s) in a REMIC" under Section 7701(a)(19)(C) of the
Code and "real estate assets" under Section 856(c) of the Code
in the same proportion that the assets in the Trust consist of
qualifying assets under such Sections. In addition, as a
consequence of the qualification of the Trust (other than the
Non-REMIC Accounts) as a REMIC, interest on the Offered
Certificates will be treated as "interest on obligations
secured by mortgages on real property" under Section 856(c) of
the Code to the extent that such Offered Certificates are
treated as "real estate assets" under Section 856(c) of the
Code.
11. The Certificates will, when issued, conform to the
description thereof contained in the Prospectus.
12. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and delivered to the Underwriters and paid
for in accordance with the Underwriting Agreement, will be
entitled to the benefits of the Pooling and Servicing
Agreement.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the closing Date, in
form and substance satisfactory to the Underwriters to the effect that
no facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except as to financial or
13
statistical data contained in the Registration Statement); (b) the
Prospectus, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to statements set
forth in the Prospectus Supplement under the caption "The Certificate
Insurer"); or (c) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such
incorporated document made by the Depositor prior to the Closing Date
contained, as of the time it became effective or was filed with the
Commission, as the case may be, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Depositor,
addressed to the Depositor and satisfactory to the Certificate Insurer,
Standard & Poor's Ratings Services, ▇▇▇▇▇'▇ Investors Service, Inc. and
the Underwriters, with respect to certain matters relating to the
transfer of the Initial Home Equity Loans to the Depositor and from the
Depositor to the Trust, and such counsel shall have consented to the
reliance on such opinion by the Certificate Insurer, Standard & Poor's
Ratings Services, ▇▇▇▇▇'▇ Investors Service, Inc. and the Underwriters
as though such opinion had been addressed to each such party.
▇. ▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the General Partner and IMC, in
the latter's capacity as both Seller and Servicer under the Pooling and
Servicing Agreement, shall have furnished to the Underwriters their
written opinion, addressed to the Underwriters and the Depositor and
dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
1. IMC has been duly formed as a limited partnership and is
validly existing in good standing under the laws of the State
of Delaware.
2. The General Partner has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware and has duly authorized all actions
contemplated hereby to be taken by it as the general partner
of IMC.
3. IMC has full power and authority to serve in the capacity
of seller and servicer of the Home Equity Loans as
contemplated in the Pooling and Servicing Agreement and to
transfer the Home Equity Loans to the Depositor as
contemplated in the Pooling and Servicing Agreement.
4. This Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement have
been duly authorized, executed and delivered by IMC and,
assuming the due authorization, execution and delivery of such
agreements by the other parties
14
thereto, constitute the legal, valid and binding agreements of
IMC, enforceable against IMC in accordance with their terms,
subject as to enforceability to (x) bankruptcy, insolvency,
reorganization, moratorium, receivership or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (y) the qualification that the remedy of
specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to
the discretion, with respect to such remedies, of the court
before which any proceedings with respect thereto may be
brought.
5. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body having jurisdiction over IMC is required for the
consummation by the Servicer of the transactions contemplated
by the Pooling and Servicing Agreement, the Indemnification
Agreement and the Insurance Agreement, except such consents,
approvals, authorizations, registrations and qualifications as
have been obtained.
6. Neither the transfer of the Initial Home Equity Loans by
IMC to the Depositor, nor the execution, delivery or
performance by IMC of the Pooling and Servicing Agreement, the
Indemnification Agreement or the Insurance Agreement and the
transactions contemplated thereby (A) conflict with or result
in a breach of, or constitute a default under, (i) any term or
provision of the formation documents of IMC, as applicable;
(ii) any term or provision of any material agreement, deed of
trust, mortgage loan agreement, contract, instrument or
indenture, or other agreement to which IMC is a party or is
bound or to which any of the property or assets of IMC or any
of its subsidiaries is subject; (iii) to the best of such
firm's knowledge without independent investigation any order,
judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over IMC; or (iv)
any law, rule or regulations applicable to IMC; or (B) to the
best of such firm's knowledge without independent
investigation, results in the creation or imposition of any
lien, charge or encumbrance upon the Trust Estate or upon the
Certificates.
7. The execution of the Pooling and Servicing Agreement is
sufficient to convey all of IMC's right, title and interest in
the Initial Home Equity Loans to the Depositor and following
the consummation of the transaction contemplated by section
3.05 of the Pooling and Servicing Agreement, the transfer of
the Initial Home Equity Loans by IMC to the Depositor is a
sale thereof.
8. Each Subsequent Transfer Agreement at the time of its
execution and delivery will be sufficient to convey all of
IMC's right, title and interest in the Subsequent Home Equity
Loans to the Depositor and following the consummation of the
transaction contemplated by each Subsequent Transfer
Agreement, the transfer of the Subsequent Home Equity Loans by
IMC to the Depositor will be a sale thereof.
15
9. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or
investigations pending with respect to which IMC has received
service of process or threatened against IMC before any court,
administrative agency or other tribunal (a) asserting the
validity of the Pooling and Servicing Agreement, the
Underwriting Agreement, the Indemnification Agreement, the
Insurance Agreement or the Certificates, (b) seeking to
prevent the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or (c)
which would materially and adversely affect the performance by
IMC of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, the
Indemnification Agreement, the Underwriting Agreement, or the
Insurance Agreement.
▇. ▇▇▇▇▇ & ▇▇▇▇▇▇, 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
this Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement, and to
cause the Certificates to be issued.
2. The Depositor has the requisite power and authority and
legal right to own the Class R Certificates.
3. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and
adversely affect the properties or assets, taken as a whole,
of the Depositor.
4. This Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement and the
Purchase Agreement relating to the purchase of the Class R
Certificates (the "Purchase Agreement") have been duly
authorized, and when duly executed and delivered by the
Depositor and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto, such
agreements constitute valid and binding obligations,
enforceable against the Depositor in
16
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, the
Indemnification Agreement and the Insurance Agreement,
limitations of public policy under applicable securities laws.
5. The execution, delivery and performance of this Agreement,
the Pooling and Servicing Agreement, the Insurance Agreement,
the Indemnification Agreement and each Subsequent Transfer
Agreement by the Depositor, the consummation of the
transactions contemplated hereby and thereby, and the issuance
and delivery of the Certificates do not and will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets
of the Depositor or any of its subsidiaries is subject, which
breach or violation would have a material adverse effect on
the business, operations or financial condition of the
Depositor, nor will such actions result in a violation of the
provisions of the certificate of incorporation or by-laws of
the Depositor or any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material
adverse effect on the business, operations or financial
condition of the Depositor.
6. The direction by the Depositor to the Trustee to execute,
issue, authenticate and deliver the Certificates has been duly
authorized by the Depositor and, assuming that the Trustee has
been duly authorized to do so, when executed, authenticated
and delivered by the Trustee in accordance with the Pooling
and Servicing Agreement, the Certificates will be validly
issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
7. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body of the United States is required for the issuance of the
Certificates, and the sale of the Offered Certificates to the
Underwriters, or the consummation by the Depositor of the
other transactions contemplated by this Agreement, the Pooling
and Servicing Agreement, the Indemnification Agreement and the
Insurance Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be
required State securities or Blue Sky laws in connection with
the purchase and distribution of the Offered Certificates by
the Underwriters or as have been previously obtained.
8. There are not, to the best of such counsel's knowledge,
after
17
reasonable independent investigation, any actions, proceedings
or investigations pending with respect to which the Depositor
has received service of process before or, threatened by any
court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor
would have a material adverse effect on the business, results
of operations or financial condition of the Depositor; (b)
asserting the invalidity of the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification
Agreement, this Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation
by the Depositor of any of the transactions contemplated by
the Pooling and Servicing Agreement, the Insurance Agreement,
the Indemnification Agreement or this Agreement, as the case
may be; or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the
validity or enforceability of, the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification
Agreement, this Agreement or the Certificates.
H. The Underwriters shall have received the favorable opinion of
counsel to the Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
1. The Trustee is a banking corporation duly incorporated and
validly existing under the laws of the State of New York.
2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and
Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling
and Servicing Agreement and the performance by the Trustee of
its obligations under the Pooling and Servicing Agreement have
been duly authorized by all necessary corporate action of the
Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the
Trustee.
5. The execution and delivery by the Trustee of the Pooling
and Servicing Agreement does not (a) violate the Organization
Certificate of the Trustee or the Bylaws of the Trustee, (b)
to such counsel's knowledge, violate any judgment, decree or
order of any New York or United States federal court or other
New York or United States federal governmental authority by
which the Trustee is bound or (c) assuming the non-existence
of any judgment, decree or order of any court or other
governmental authority that would be violated by such
execution and delivery, violate any New York or United States
federal statute, rule or regulation or require any consent,
approval or authorization of any New York or United States
federal court or other New York or United States federal
governmental authority.
18
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting as Servicer under the Pooling
and Servicing Agreement as of the date of such opinion, the
Trustee would have the full corporate trust power to perform
the obligations of the Servicer under the Pooling and
Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Trustee before or by any court,
arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to
carry out the transactions contemplated in the Pooling and
Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the
Underwriters, with respect to the issue and sale of the Offered
Certificates, the Registration Statement, this Agreement, the
Prospectus and such other related matters as the Underwriters may
reasonably require.
J. The Underwriters shall have received the favorable opinion dated the
Closing Date, from ▇▇▇▇▇ ▇▇▇▇, counsel to the Certificate Insurer, in
form and scope satisfactory to counsel for the Underwriters,
substantially to the effect that:
1. The Certificate Insurer is a monoline insurance company
duly incorporated, validly existing, and in good standing
under the laws of the State of New York. The Certificate
Insurer is validly licensed and authorized to issue the
Insurance Policy and perform its obligations under the
Insurance Agreement in accordance with the terms thereof,
under the laws of the State of New York.
2. The Certificate Insurer has the corporate power to execute
and deliver, and to take all action required of it under the
Insurance Agreement and each Insurance Policy.
3. The execution, delivery and performance by the Certificate
Insurer of each 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. Each Insurance Policy, the Indemnification Agreement and
Insurance Agreement have been duly authorized, executed and
delivered by the Certificate Insurer and constitute the legal,
valid and binding agreement of the
19
Certificate Insurer, enforceable against the Certificate
Insurer in accordance with its terms subject, as to
enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without
limitation, laws relating to fraudulent transfers or
conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law), as such laws may be applied in any such proceeding with
respect to the Certificate Insurer and (y) the qualification
that the remedy of specific performance and other forms of
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 each Insurance Policy constitutes a security
within the meaning of Section 2(1) of the Securities Act, it
is a security that is exempt from the registration
requirements of the Act.
6. The information set forth under the caption, "The
Certificate Insurer" in the Prospectus Supplement, insofar as
such information constitutes a description of each Insurance
Policy, accurately summarizes such Insurance Policy.
K. The Depositor and IMC shall each have furnished to the Underwriters
a certificate, dated the Closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in
this Agreement and in the Pooling and Servicing Agreement are
true and correct as of the Closing Date; and such entity has
complied with all agreements contained herein which are to
have been complied with on or prior to the Closing Date.
2. The information contained in the Prospectus relating to
such entity and the Home Equity Loans is true and accurate in
all material respects and nothing has come to his or her
attention that would lead such officer to believe that the
Registration statement or the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein not misleading.
3. There has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the
Depositor since November 10, 1994 or the formation documents
of IMC since October 19, 1990 and no such amendment has been
authorized. No event has occurred since March 1, 1997 which
has affected the good standing of such entities under the laws
of the State of Delaware.
20
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 December 31, 1996.
In addition to the foregoing, the IMC certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H,
L, M, P and Q are made by IMC instead of the Depositor and are true as
to IMC as though such representations and warranties were fully set
forth in such certificate.
L. The Trustee shall have furnished to the Underwriters a certificate
of the Trustee, signed by one or more duly authorized officers of the
Trustee, dated the Closing Date, as to the due authorization, execution
and delivery of the Pooling and Servicing Agreement by the Trustee and
the acceptance by the Trustee of the trusts created thereby and the due
execution, authentication and delivery of the Certificates by the
Trustee thereunder and such other matters as the Representative shall
reasonably request.
M. Each Insurance Policy and the Insurance Agreement shall have been
issued by the Certificate Insurer and shall have been duly
authenticated by an authorized agent of the Certificate Insurer, if so
required under applicable state law or regulations.
N. The Offered Certificates shall have been rated "AAA" by Standard &
Poor's Ratings Services and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc.
O. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may
reasonably have requested not less than three full business days prior
to the Closing Date.
P. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Certificates as herein contemplated and related proceedings
or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the
Depositor in connection with the issuance and sale of the Certificates
as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
Q. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having 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
21
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States; or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States
shall be such) as to make it in each of the instances set forth in
clauses (i), (ii), (iii) and (iv) herein, in the reasonable judgment of
the Underwriters, impractical or inadvisable to proceed with the public
offering or delivery of the Certificates on the terms and in the manner
contemplated in the Prospectus.
R. The Underwriters shall have received from Coopers & ▇▇▇▇▇▇▇ 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 C The Home Equity
Loans", "Risk Factors C Nature of the Collateral; Junior Liens", "Risk
Factors C Risk of Higher Default Rates for Home Equity Loans with
Balloon Payments", "The Seller and Servicer C General" and "The Home
Equity Loan Pool C General," agrees with the records of the Depositor
excluding any questions of legal interpretation.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of qualifying the Certificates under the securities laws of
the several jurisdictions designated by the Underwriters as provided in Section
5(H) hereof and of preparing, printing and distributing a Blue Sky Memorandum
and a Legal Investment Survey (including related fees and expenses of counsel to
the Underwriters); (f) any fees charged by securities rating services for rating
the Offered Certificates; (g) the costs of the accountant's letters referred to
in Section 6(R) hereof; and (h) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses of
your counsel); provided that, except as
22
provided in this Section 7, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Certificates which they may sell and the expenses of advertising
any offering of the Offered Certificates made by the Underwriters, and the
Underwriters shall pay the cost of any accountant's letters relating to any
Computational Materials (as defined in Section 5(E) hereof).
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for
the Underwriters.
SECTION 8 Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any controlling person of any of such Underwriter. The
only information furnished by the Underwriters or on behalf of the Underwriters
for use 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
23
Securities Act against any and all loss, claim, damage or liability, or any
action in respect thereof, to which the Depositor or any such director, officer
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Depositor by or
on behalf of such Underwriter specifically for inclusion therein, and shall
reimburse the Depositor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Depositor or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Depositor or any such director, officer or controlling person. The only
information furnished by the Underwriters or on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the 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
24
shall be at the expense of such indemnified party unless: (i) the employment
thereof has been specifically authorized by the indemnifying party in writing;
(ii) such indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel; or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to one local counsel per jurisdiction)
at any time for all such indemnified parties, which firm shall be designated in
writing by the related Underwriter, if the indemnified parties under this
Section 8 consist of one or more Underwriters or any of its or their controlling
persons, or the Depositor, if the indemnified parties under this Section 8
consist of the Depositor or any of the Depositor's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is required to
be filed pursuant to Rule 424 with a copy of any Computational Materials (as
defined in Section 5(E) hereof) produced by such Underwriter for filing with the
Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor, each of the Depositor's officers and directors and
each person who controls the Depositor within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become subject under the
25
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of a material fact contained in the Computational Materials
provided by such Underwriter and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of an Underwriter under this Section 8(E) shall be in addition to
any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(A), (B) or (E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the related Underwriters on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section 8(C), in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of an Underwriter and the Depositor shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions received by the related Underwriter from
time to time in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or 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)
26
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Offered Certificates exceeds
(y) the amount paid by such Underwriter to the Depositor for the Offered
Certificates by such underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Computational Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section 8(D) for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K --
Computational Materials; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to any Underwriter by or on behalf of the Seller and Servicer
concerning the assets comprising the Trust.
▇. The Seller and ▇▇▇▇▇▇▇▇ agrees to indemnify each indemnified party
referred to in Section 8(A) hereof with respect to Seller Provided Information
to the same extent as the indemnity granted under such section. The procedures
set forth in Section 8(C) shall be equally applicable to this Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement, the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement and the Computational
Materials (other than to the extent such information is based on Seller Provided
Information) furnished by such Underwriter is correct, and the parties hereto
acknowledge that such information constitutes the only information furnished in
writing by or on behalf of any Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus.
SECTION 9 Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Offered Certificates to the Underwriters.
27
SECTION 10 Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the Underwriters have not
completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of any
non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11 Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section 6(P)
of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12 Obligations of IMC. IMC agrees with the Underwriters, for
the sole and exclusive benefit of each such Underwriter and each person
controlling such Underwriter within the meaning of the Securities Act and not
for the benefit of any assignee thereof or any other person or persons dealing
with such Underwriter, in consideration of and as an inducement to their
agreement to purchase the Offered Certificates from the Depositor, to indemnify
and hold harmless each Underwriter against any failure by the Depositor to
perform its obligations to the Underwriters hereunder, including, without
limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
28
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Asset Backed Securities Group (Fax:
▇▇▇-▇▇▇-▇▇▇▇) and Nomura Securities International, Inc., Two World
Financial Center, Bldg. B, 21st Floor, New York, New York 10281-1198
Attention: Fixed Income Structured Finance Group (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 Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the city and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect
29
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.
30
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
INDUSTRY MORTGAGE COMPANY,
L.P. Industry Mortgage
Company, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
Acting on its own behalf and as
Representative of PaineWebber
Incorporated
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Managing Director, ABS
NOMURA SECURITIES INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
31
SCHEDULE A
Class A-1 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $63,322,000 99.84852%
PaineWebber Incorporated $63,321,000 99.84852%
Total $126,643,000
Class A-2 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $17,511,000 99.74517%%
PaineWebber Incorporated $17,510,000 99.74517%
Total $35,021,000
Class A-3 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $31,686,000 99.69828%
PaineWebber Incorporated $31,685,000 99.69828%
Total $63,371,000
32
SCHEDULE A (cont'd)
Class A-4 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $21,015,000 99.50847%
PaineWebber Incorporated $21,015,000 99.50847%
Total $42,030,000
Class A-5 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $6,719,000 99.42692%
PaineWebber Incorporated $6,718,000 99.42692%
Total $13,437,000
Class A-6 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $11,249,000 99.35995%
PaineWebber Incorporated $11,249,000 99.35995%
Total $22,498,000
33
SCHEDULE A (cont'd)
Class A-7 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $13,500,000 99.53214%
PaineWebber Incorporated $13,500,000 99.53214%
Total $27,000,000
Class A-8 Certificates
Underwriters Principal Purchase Price
------------ --------- --------------
Nomura Securities International, Inc. $70,000,000 99.70%
Total $70,000,000
34
SCHEDULE A (cont'd)
Selling Reallowance
Class Concession Discount
----- ---------- --------
A-1 0.090% 0.075%
A-2 0.150% 0.100%
A-3 0.180% 0.125%
A-4 0.270% 0.150%
A-5 0.330% 0.200%
A-6 0.360% 0.250%
A-7 0.270% 0.200%
A-8 0.180% 0.060%
35