<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1997
REGISTRATION NO. 333-21823
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
IMC MORTGAGE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
FLORIDA 6162 59-3350574
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
</TABLE>
3450 BUSCHWOOD PARK DRIVE
TAMPA, FLORIDA 33618
(813) 932-2211
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GEORGE NICHOLAS
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
IMC MORTGAGE COMPANY
3450 BUSCHWOOD PARK DRIVE
TAMPA, FLORIDA 33618
(813) 932-2211
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
<TABLE>
<CAPTION>
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO
THE AGENT FOR SERVICE, SHOULD BE SENT TO:
<S> <C>
PETER S. KOLEVZON, ESQ. STEVEN R. FINLEY, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL GIBSON, DUNN & CRUTCHER LLP
919 THIRD AVENUE 200 PARK AVENUE
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10166
(212) 715-9100 (212) 351-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ] _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<S> <C>
1.1 -- Form of Underwriting Agreement.
2.1 -- Pre-IPO Agreement between the Partnership, the General Partners and each Limited Partner.*
3.1 -- Articles of Incorporation of the Registrant, as amended.*
3.2 -- Bylaws of the Registrant, as amended.*
4.1 -- Specimen of Certificate for Common Stock.*
4.2 -- Indenture Agreement between the Partnership and Rotch Property Group Limited.*
4.3 -- Substitution Agreement between the Partnership and ContiTrade Services Corporation.*
</TABLE>
II-1
<PAGE>
<PAGE>
<TABLE>
<S> <C>
4.4 -- Incentive Plan of the Company and related assumption agreements.*
4.5 -- Outside Directors' Option Plan of the Company and related assumption agreements.*
4.6 -- Form of Common Stock Warrant issued to ContiTrade Services Corporation.*
5.1 -- Opinion of Kramer, Levin, Naftalis & Frankel.
10.1 -- Employment Agreement dated January 1, 1996 between the Partnership and George Nicholas, as amended.*
10.2 -- Employment Agreement dated January 1, 1996 between the Partnership and Thomas G. Middleton, as amended.*
10.3 -- Employment Agreement dated January 1, 1996 between the Partnership and David MacDonald.*
10.4 -- Lease Agreements between the Partnership and CLW Realty Asset Group Inc.*
10.5 -- Share Subscription and Shareholders' Agreement between the Partnership and Foxgard Limited, Financial
Security Assurance Holdings, Inc. and Preferred Mortgages Limited.*
10.6 -- Transfer Agreement between the Partnership and Curzon Equity Finance Corporation Limited, Preferred
Mortgages Limited, Rotch Property Group Limited, Foxgard Limited and Financial Security Assurance Holdings,
Inc.*
10.7 -- Side letter relating to the Share Subscription and Shareholders' Agreement between the Partnership and
Foxgard Limited, Financial Security Assurance Holdings, Inc. and Preferred Mortgage Limited.*
10.8 -- Asset Purchase Agreement and Plan of Reorganization between the Partnership, IMC Acquisition, Inc.,
Mortgage Central Corp. and the shareholders of Mortgage Central Corp.*
10.9 -- Registration Rights Agreement between the Partnership and the shareholders of Mortgage Central Corp.*
10.10 -- Investment Banking Services Agreement between the Partnership and ContiTrade Services Corporation.*
10.11 -- Standby Facility Agreement between the Partnership and ContiTrade Services Corporation and Supplement
thereto.*
10.12 -- Amended and Restated Loan and Security Agreement between the Partnership and ContiTrade Services
Corporation.*
10.13 -- Secured Note from the Partnership to ContiTrade Services Corporation.*
10.14 -- Amended and Restated Custodial Agreement among the Partnership, ContiTrade Services Corporation and Bank
of Boston.*
10.15 -- 1995 Agreement between the Partnership and ContiTrade Services Corporation.*
10.16 -- Assignment, Assumption and Consent Agreement among the Partnership, ContiTrade, ContiTrade Services LLC
and First National Bank of Boston.*
10.17 -- Master Repurchase Agreement Governing Purchase and Sales of Mortgage Loans between the Partnership and
Nomura Asset Capital Corporation and related Power of Attorney.*
10.18 -- Master Repurchase Agreement between the Partnership and Nomura Securities International, Inc.*
10.19 -- Global Master Repurchase Agreement between the Partnership and Nomura Grand Cayman, Ltd.*
10.20 -- Custodial Agreement among the Partnership, The First National Bank of Boston and Nomura Asset Capital
Corporation.*
10.21 -- Loan and Security Agreement between the Partnership and First National Bank of Boston and amendments
thereto.*
10.22 -- Interim Loan and Security Agreement between the Partnership and National Westminster Bank PLC, New York
Branch.*
10.23 -- Custodial Agreement among the Partnership, National Westminster Bank PLC and First National Bank of
Boston.*
10.24 -- Promissory Note between the Partnership and Lakeview Savings Bank.*
10.25 -- Security Agreement Collateralizing Promissory Note between the Partnership and Lakeview Savings Bank.*
10.26 -- Master Repurchase Agreement among the Partnership and Bear Stearns Home Equity Trust 1996-1.*
10.27 -- Custody Agreement among the Partnership, IMC Corporation of America, Bear Stearns Home Equity Trust 1996-1
and Bank of Boston.*
10.28 -- Warehousing Credit and Security Agreement among the Partnership, IMC Corporation of America and
Residential Funding Corporation, as amended.`D'*
</TABLE>
II-2
<PAGE>
<PAGE>
<TABLE>
<S> <C>
10.29 -- Custodial Agreement among the First National Bank of Boston, the Partnership, IMC Corporation of America
and Residential Funding Corporation.*
10.30 -- Loan and Security Agreement between the Partnership and Approved Financial Corp., Approved Residential
Mortgage, Inc. and Armada Residential Mortgage, LLC.*
10.31 -- Loan and Security Agreement between the Partnership and Mortgage Central Corp.*
10.32 -- Custodial Agreement among the Partnership, Mortgage Central Corp. and the First National Bank of Boston.*
10.33 -- Custodial Agreement among the Partnership, American Industrial Loan Association, Approved Residential
Mortgage, Inc., Armada Residential Mortgage, LLC and the First National Bank of Boston.*
10.34 -- Employment Agreement dated August 1, 1996 between the Registrant and Stuart D. Marvin.**
10.35 -- Asset Purchase Agreement and Plan of Reorganization between the Registrant, Mortgage America, Inc. and the
shareholders of Mortgage America, Inc.***
10.36 -- First Amendment to the Asset Purchase Agreement and Plan of Reorganization between the Registrant,
Mortgage America, Inc. and the shareholders of Mortgage America, Inc.***
10.37 -- Form of Registration Rights Agreement between the Registrant and the Shareholders of Mortgage America,
Inc.***
10.38 -- Agreement and Plan of Reorganization between the Registrant, CWB Acquisitions, Inc., CoreWest Banc and the
shareholders of CoreWest Banc.***
10.39 -- Registration Rights Agreement between the Registrant and the shareholders of CoreWest Banc.***
10.40 -- Form of Amended and Restated Loan Agreement between the Registrant, the Partnership, IMC Corporation of
America and Nomura Asset Capital Corporation.***
10.41 -- Form of Custodial Agreement between the Registrant, the Partnership, IMC Corporation of America, Nomura
Asset Capital Corporation and LaSalle National Bank.***
10.42 -- Form of Loan and Security Agreement among the Registrant, the Partnership and The First National Bank of
Boston.***
10.43 -- Form of Asset Purchase Agreement between the Registrant, American Mortgage Reduction, Inc., and the
Shareholders of American Mortgage Reduction, Inc.***
10.44 -- Form of Asset Purchase Agreement between the Registrant and Equity Mortgage Co., Inc.***
10.45 -- Employment Agreement dated as of January 1, 1997 between the Registrant and Mark J. Greenberg.***
10.46 -- Form of Warehouse Security Agreement among the Registrant, the Partnership and GE Capital Mortgage
Services, Inc.***
10.47 -- Form of Warehouse Credit Agreement among the Registrant, the Partnership and GE Capital Mortgage Services,
Inc.***
10.48 -- Loan and Security Agreement among the Registrant, IMC Corporation of America, the Partnership, IMC
Investment Corp., CoreWest Banc and Paine Webber Real Estate Securities Inc.***
10.49 -- Custodial Agreement among the First National Bank of Boston, the Registrant, IMC Corporation of America,
the Partnership, IMC Investment Corp., CoreWest Banc and Paine Webber Real Estate Securities Inc.
11.1 -- Statement re computation of earnings per share (See Note 4 of the Notes to the Consolidated Financial
Statements).***
16.1 -- Letter dated April, 1996 from Deloitte & Touche, LLP to the Registrant.*
21.1 -- Subsidiaries of the Registrant.*
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Kramer, Levin, Naftalis & Frankel (contained in Exhibit 5.1).
27.1 -- Financial Data Schedule.***
99.1 -- Third Amended and Restated Agreement of Limited Partnership.*
</TABLE>
- ------------
`D' Confidential treatment granted with respect to certain provisions.
* Incorporated by reference to the same exhibit to the Registrant's
Registration Statement on Form S-1 declared effective by the Securities and
Exchange Commission on June 25, 1996 (Registration No. 333-3954).
** Incorporated by reference to Exhibit 1 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996.
(footnotes continued on next page)
II-3
<PAGE>
<PAGE>
(footnotes continued from previous page)
*** Previously filed with this Registration Statement.
------------------------
(b) Financial Statement Schedules
None
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement or amendment thereto to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Tampa,
State of Florida, on April 21, 1997.
IMC MORTGAGE COMPANY
By /S/ THOMAS G. MIDDLETON
..................................
THOMAS G. MIDDLETON,
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities indicated on April 21, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ --------------------------------------------
<C> <S>
/S/ GEORGE NICHOLAS Chairman of the Board and Chief Executive
......................................... Officer (Principal Executive Officer)
(GEORGE NICHOLAS)
/S/ STUART D. MARVIN Chief Financial Officer (Principal
......................................... Accounting Officer and Principal Financial
(STUART D. MARVIN) Officer)
/S/ JOSEPH P. GORYEB Director
.........................................
(JOSEPH P. GORYEB)
/S/ MITCHELL W. LEGLER Director
.........................................
(MITCHELL W. LEGLER)
/S/ THOMAS G. MIDDLETON Director
.........................................
(THOMAS G. MIDDLETON)
/S/ ALLEN D. WYKLE Director
.........................................
(ALLEN D. WYKLE)
</TABLE>
II-5
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBERING SYSTEM
- ------- --------------------------------------------------------------------------------------- -------------------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement......................................................
2.1 -- Pre IPO Agreement between the Partnership, the General Partners and each Limited
Partner*............................................................................
3.1 -- Articles of Incorporation of the Registrant, as amended*...........................
3.2 -- Bylaws of the Registrant, as amended*..............................................
4.1 -- Specimen of Certificate for Common Stock*..........................................
4.2 -- Indenture Agreement between the Partnership and Rotch Property Group Limited*......
4.3 -- Substitution Agreement between the Partnership and ContiTrade Services
Corporation*........................................................................
4.4 -- Incentive Plan of the Company and related assumption agreements*...................
4.5 -- Outside Directors' Option Plan of the Company and related assumption agreements*...
4.6 -- Form of Common Stock Warrant issued to ContiTrade Services Corporation*............
5.1 -- Opinion of Kramer, Levin, Naftalis & Frankel.......................................
10.1 -- Employment Agreement dated January 1, 1996 between the Partnership and George
Nicholas, as amended*..............................................................
10.2 -- Employment Agreement dated January 1, 1996 between the Partnership and Thomas G.
Middleton, as amended*.............................................................
10.3 -- Employment Agreement dated January 1, 1996 between the Partnership and David
MacDonald*.........................................................................
10.4 -- Lease Agreements between the Partnership and CLW Realty Asset Group Inc.*..........
10.5 -- Share Subscription and Shareholders' Agreement between the Partnership and Foxgard
Limited, Financial Security Assurance Holdings, Inc. and Preferred Mortgages
Limited*...........................................................................
10.6 -- Transfer Agreement between the Partnership and Curzon Equity Finance Corporation
Limited, Preferred Mortgages Limited, Rotch Property Group Limited, Foxgard Limited
and Financial Security Assurance Holdings, Inc.*...................................
10.7 -- Side letter relating to the Share Subscription and Shareholders' Agreement between
the Partnership and Foxgard Limited, Financial Security Assurance Holdings, Inc. and
Preferred Mortgage Limited*........................................................
10.8 -- Asset Purchase Agreement and Plan of Reorganization between the Partnership, IMC
Acquisition, Inc., Mortgage Central Corp. and the shareholders of Mortgage Central
Corp.*.............................................................................
10.9 -- Registration Rights Agreement between the Partnership and the shareholders of
Mortgage Central Corp.*............................................................
10.10 -- Investment Banking Services Agreement between the Partnership and ContiTrade
Services Corporation*..............................................................
10.11 -- Standby Facility Agreement between the Partnership and ContiTrade Services
Corporation and Supplement thereto*................................................
10.12 -- Amended and Restated Loan and Security Agreement between the Partnership and
ContiTrade Services Corporation*...................................................
10.13 -- Secured Note from the Partnership to ContiTrade Services Corporation*..............
10.14 -- Amended and Restated Custodial Agreement among the Partnership, ContiTrade Services
Corporation and Bank of Boston*....................................................
10.15 -- 1995 Agreement between the Partnership and ContiTrade Services Corporation*........
10.16 -- Assignment, Assumption and Consent Agreement among the Partnership, ContiTrade,
ContiTrade Services LLC and First National Bank of Boston*.........................
10.17 -- Master Repurchase Agreement Governing Purchase and Sales of Mortgage Loans between
the Partnership and Nomura Asset Capital Corporation and related Power of
Attorney*..........................................................................
10.18 -- Master Repurchase Agreement between the Partnership and Nomura Securities
International, Inc. *..............................................................
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBERING SYSTEM
- ------- --------------------------------------------------------------------------------------- -------------------
<S> <C> <C>
10.19 -- Global Master Repurchase Agreement between the Partnership and Nomura Grand Cayman,
Ltd*...............................................................................
10.20 -- Custodial Agreement among the Partnership, The First National Bank of Boston and
Nomura Asset Capital Corporation*..................................................
10.21 -- Loan and Security Agreement between the Partnership, First National Bank of Boston
and Nomura Asset Capital Corporation and amendments thereto*.......................
10.22 -- Interim Loan and Security Agreement between the Partnership and National Westminster
Bank PLC, New York Branch*.........................................................
10.23 -- Custodial Agreement among the Partnership, National Westminster Bank PLC and First
National Bank of Boston*...........................................................
10.24 -- Promissory Note between the Partnership and Lakeview Savings Bank*.................
10.25 -- Security Agreement Collateralizing Promissory Note between the Partnership and
Lakeview Savings Bank*.............................................................
10.26 -- Master Repurchase Agreement among the Partnership and Bear Stearns Home Equity Trust
1996-1*.............................................................................
10.27 -- Custody Agreement among the Partnership, IMC Corporation of America, Bear Stearns
Home Equity Trust 1996-1 and Bank of Boston*.......................................
10.28 -- Warehousing Credit and Security Agreement among the Partnership, IMC Corporation of
America and Residential Funding Corporation, as amended`D'*........................
10.29 -- Custodial Agreement among the First National Bank of Boston, the Partnership, IMC
Corporation of America and Residential Funding Corporation*........................
10.30 -- Loan and Security Agreement between the Partnership and American Industrial Loan
Association, Approved Residential Mortgage, Inc. and Armada Residential Mortgage,
LLC*...............................................................................
10.31 -- Loan and Security Agreement between the Partnership and Mortgage Central Corp.*....
10.32 -- Custodial Agreement among the Partnership, Moorp. and the First National Bank of
Boston*............................................................................
10.33 -- Custodial Agreement among the Partnership, American Industrial Loan Association,
Approved Residential Mortgage, Inc., Armada Residential Mortgage, LLC and the First
National Bank of Boston*...........................................................
10.34 -- Employment Agreement dated August 1, 1996 between the Registrant and Stuart D.
Marvin.**..........................................................................
10.35 -- Asset Purchase Agreement and Plan of Reorganization between the Registrant, Mortgage
America, Inc. and the Shareholders of Mortgage America, Inc.***.....................
10.36 -- First Amendment to the Asset Purchase Agreement and Plan of Reorganization between
the Registrant, Mortgage America, Inc. and the Shareholders of Mortgage America,
Inc.***............................................................................
10.37 -- Form of Registration Rights Agreement between the Registrant and the Shareholders of
Mortgage America, Inc.***..........................................................
10.38 -- Agreement and Plan of Reorganization between the Registrant, CWB Acquisitions, Inc.,
CoreWest Banc and the Shareholders of CoreWest Banc***..............................
10.39 -- Registration Rights Agreement between the Registrant and the Shareholders of
CoreWest Banc***...................................................................
10.40 -- Form of Amended and Restated Loan Agreement between the Registrant, the Partnership,
IMC Corporation of America and Nomura Asset Capital Corporation***..................
10.41 -- Custodial Agreement between the Registrant, the Partnership, IMC Corporation of
America, Nomura Asset Capital Corporation and LaSalle National Bank***.............
10.42 -- Form of Loan and Security Agreement among the Registrant, the Partnership, and The
First National Bank of Boston***...................................................
10.43 -- Form of Asset Purchase Agreement between the Registrant and American Mortgage
Reduction, Inc. and the Shareholders of American Mortgage Reduction***.............
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBERING SYSTEM
- ------- --------------------------------------------------------------------------------------- -------------------
<S> <C> <C>
10.44 -- Form of Asset Purchase Agreement between the Registrant and Equity Mortgage Co.,
Inc.***............................................................................
10.45 -- Employment Agreement dated as of January 1, 1997 between the Registrant and Mark J.
Greenberg***.......................................................................
10.46 -- Form of Warehouse Security Agreement among the Registrant, the Partnership and GE
Capital Mortgage Services, Inc.***.................................................
10.47 -- Form of Warehouse Credit Agreement among the Registrant, the Partnership and GE
Capital Mortgage Services, Inc.***.................................................
10.48 -- Loan and Security Agreement among the Registrant, IMC Corporation of America, the
Partnership, IMC Investment Corp., CoreWest Banc and Paine Webber Real Estate
Securities Inc.***.................................................................
10.49 -- Custodial Agreement among the First National Bank of Boston, the Registrant, IMC
Corporation of America, the Partnership, IMC Investment Corp., CoreWest Banc and
Paine Webber Real Estate Securities Inc............................................
11.1 -- Statement re computation of earnings per share (See Note 4 of the Notes to the
Consolidated Financial Statements)***..............................................
16.1 -- Letter dated April, 1996 from Deloitte & Touche, LLP to the Registrant*............
21.1 -- Subsidiaries of the Registrant*....................................................
23.1 -- Consent of Coopers & Lybrand L.L.P.................................................
23.2 -- Consent of Kramer, Levin, Naftalis & Frankel (contained in Exhibit 5.1)............
27.1 -- Financial Data Schedule***.........................................................
99.1 -- Third Amended and Restated Agreement of Limited Partnership*.......................
</TABLE>
- ------------
`D' Confidential treatment granted with respect to certain provisions.
* Incorporated by reference to the same exhibit to the Registrant's
Registration Statement on Form S-1 declared effective by the Securities and
Exchange Commission on June 25, 1996 (Registration No. 333-3954).
** Incorporated by reference to Exhibit 1 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1996.
*** Previously Filed with this Registration Statement.
STATEMENT OF DIFFERENCES
------------------------
The dagger symbol shall be expressed as ........... `D'
<PAGE>
<PAGE>
7,000,000 Shares of Common Stock
IMC MORTGAGE COMPANY
UNDERWRITING AGREEMENT
, 1997
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
OPPENHEIMER & CO., INC.
PAINEWEBBER INCORPORATED
as Representatives of the
several Underwriters named
in Schedule I attached hereto
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Dear Sirs:
IMC Mortgage Company, a corporation organized and existing under
the laws of the State of Florida (the "Company"), proposes to issue and sell,
and the persons named in Schedule II hereto (the "Firm Shares Selling
Shareholders") propose to sell, subject to the terms and conditions stated
herein, to the several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 7,000,000 shares (the "Firm Shares") of common
stock, par value $0.01 per share of the Company (the "Common Stock"), of which
5,600,000 shares are to be issued and sold by the Company and an aggregate of
1,400,000 shares are to be sold by the Firm Shares Selling Shareholders in the
respective amounts set forth opposite their names in Schedule II. In addition,
for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, the Company proposes to issue and sell, and the persons named
in Schedule III hereto (the "Additional Shares Selling Shareholders" and,
together with those persons named in Schedule II hereto, the "Selling
Shareholders") propose to sell, at the option of the Underwriters, up to an
additional 1,050,000 shares (the "Additional Shares") of Common Stock. The Firm
Shares and any Additional Shares
<PAGE>
<PAGE>
purchased by the Underwriters are referred to herein as the "Shares." The Shares
are more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and amendments thereto,
on Form S-1 (No. 333-21823), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). Such registration statement,
including the prospectus, financial statements and schedules, exhibits and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the registration statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
of the Rules and Regulations of the Commission under the Act (the
"Regulations"), is herein called the "Registration Statement" and the
prospectus, in the form first filed with the Commission pursuant to Rule 424(b)
of the Regulations or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required, is herein called the
"Prospectus." The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430 of the Regulations.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Act and the Regulations and do not or will not
contain an untrue statement of a material fact and do not or will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, in light of the circumstances
under which they were made, not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any amendment
thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein in light of the circumstances
under which they were made not misleading. No representation or warranty is made
in this subsection (b), however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any
2
<PAGE>
<PAGE>
Underwriter through you as herein stated expressly for use in connection with
the preparation thereof.
(c) Coopers & Lybrand L.L.P., who have certified the
financial statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act and the
Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has been no
material adverse change in the business, prospects, properties, operations,
financial condition or results of operations of the Company, its subsidiaries
and Industry Mortgage Company, L.P. (the "Partnership") taken as a whole,
whether or not arising from transactions in the ordinary course of business, and
since the date of the latest balance sheet presented in the Registration
Statement and the Prospectus, neither the Company, any of its subsidiaries nor
the Partnership has incurred or undertaken any liabilities or obligations,
direct or contingent, which are material to the Company, its subsidiaries and
the Partnership taken as a whole, except for (i) liabilities or obligations
which are reflected in the Registration Statement and the Prospectus and (ii)
borrowings pursuant to written loan arrangements existing as of the date hereof
incurred by the Company in the ordinary course of its business consistent with
past practice.
(e) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company.
(f) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit to which the Company, any of
its subsidiaries or the Partnership is a party or by which any of such entities
or their respective properties or assets may be bound or (ii) violate or
conflict with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries or the
Partnership or any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over any of such entities or any of their respective properties or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over any of such
entities or any of their respective properties or assets is required for the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, including the issuance, sale and delivery of
the Shares to be issued, sold and delivered by the Company hereunder, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be
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required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters or pursuant to the Corporate
Financing Rules of the National Association of Securities Dealers, Inc.
(g) All of the outstanding shares of capital stock of the
Company are duly and validly authorized and issued, fully paid and
non-assessable and were not issued and are not now in violation of or subject to
any preemptive rights created by the Partnership or the Company or by any
statute, law, rule or regulation. None of the outstanding shares of capital
stock of the Company, nor any securities convertible into shares of such capital
stock or exchangeable therefor, were issued in violation of the provisions of
Section 5 of the Act. The Shares, when issued, delivered and sold in accordance
with this Agreement, will be duly and validly issued and outstanding, fully paid
and non-assessable, and will not have been issued in violation of or be subject
to any preemptive rights. The Company had, at December 31, 1996, an authorized
and outstanding capitalization as set forth in the Registration Statement and
the Prospectus. The Common Stock, the Firm Shares and the Additional Shares
conform to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(h) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. The Partnership has been duly
organized and is validly existing as a limited partnership in good standing
under the laws of the State of Delaware. Each of the Company, its subsidiaries
and the Partnership is duly qualified and in good standing as a foreign
corporation or limited partnership, as the case may be, in each jurisdiction in
which the character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, its subsidiaries and
the Partnership taken as a whole. Each of the Company, its subsidiaries and the
Partnership has all requisite power and authority, and all necessary material
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental agencies
and bodies, to own, lease, license and operate its properties and conduct its
business as now being conducted and as described in the Registration Statement
and the Prospectus, and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the
Prospectus. All of the issued and outstanding capital stock of each corporate
subsidiary of the Company has been duly and validly issued and is fully paid and
non-assessable and was not issued in violation of preemptive rights created by
the Partnership or the Company or by any statute, law, rule or regulation and is
owned directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer, shareholders'
agreement, voting trust or other defect of title whatsoever. All of the
outstanding limited and general partnership interests in the Partnership have
been duly and validly issued and were not issued in violation of preemptive
rights and are owned directly or indirectly by the Company,
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free and clear of any lien, encumbrance, claim, security interest, restriction
on transfer, voting trust or other defect of title whatsoever.
(i) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company, any of its
subsidiaries or the Partnership is a party or to which any property of the
Company, any of its subsidiaries or the Partnership is subject or which is
pending or, to the knowledge of the Company, contemplated against the Company,
any of its subsidiaries or the Partnership which might result in any material
adverse change in the business, prospects, properties, operations, financial
condition or results of operations of the Company, its subsidiaries and the
Partnership taken as a whole or which is required to be disclosed in the
Registration Statement and the Prospectus.
(j) The Company has not taken and will not take, directly
or indirectly, any action designed to cause or result in, or which constitutes
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares.
(k) The financial statements, including the notes thereto,
and supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Company as of the dates
indicated and the results of its operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein.
(l) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of securities of
the Company because of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby, except for such
rights as have been waived with respect to the sale of the Shares contemplated
hereby.
(m) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(n) The Shares are listed for inclusion on The Nasdaq
National Market.
2. Representations and Warranties of the Selling Shareholders.
Each of the Selling Shareholders, severally and not jointly, represents and
warrants to the Underwriters as to itself that:
(a) Such Selling Shareholder is the lawful owner of the
number of Shares, or securities convertible into or warrants exercisable for the
number of Shares, to be sold by such Selling Shareholder pursuant to this
Agreement and, at the time of delivery
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thereof, will be the lawful owner of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement and will have valid and marketable title
to such Shares, and upon delivery of and payment for such Shares the
Underwriters will acquire valid and marketable title to such Shares free and
clear of any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title (other than any such
claim, lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title created by any Underwriter),
assuming each of the Underwriters has purchased the Shares purchased by it in
good faith and without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time of
delivery of such Shares will have full legal right, power and capacity, and any
approval required by law (other than state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters), to sell, assign, transfer and deliver such Shares in the manner
provided in this Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by such Selling Shareholder. The Power of Attorney executed by the
Selling Shareholders (the "Power of Attorney") and the Custody Agreement among
the Selling Shareholders and Gayle Petrie, P.A. (the "Custody Agreement") have
been duly executed and delivered by such Selling Shareholder and are legal,
valid and binding agreements of such Selling Shareholder, enforceable in
accordance with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(d) Such Selling Shareholder has duly and irrevocably
authorized the Attorney in Fact (as defined in the Power of Attorney), on behalf
of such Selling Shareholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Shareholder and
receive payment therefor pursuant hereto.
(e) The sale of the Shares by such Selling Shareholder
pursuant hereto is not prompted by any material adverse information concerning
the Company, and all information furnished in writing by or on behalf of such
Selling Shareholder specifically for use in the Registration Statement and the
Prospectus, and any supplement or amendment thereto, is and will be when the
Registration Statement became effective and at all times subsequent thereto up
to the Closing Date and any Additional Closing Date true and correct and
complete and at all such times did not and will not contain any untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) The consummation of the transactions contemplated
hereby and by the Power of Attorney and the Custody Agreement and the
fulfillment of the terms hereof and thereof will not constitute a breach or
violation of or default under any trust, indenture,
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agreement or other instrument to which such Selling Shareholder is a party or by
which any such Selling Shareholder is bound.
[(g) Such Selling Shareholder has no reason to believe
that any representation or warranty made by the Company in this Agreement is not
true and complete.]
(h) The execution, delivery and performance of this
Agreement and the Power of Attorney and the Custody Agreement and the
consummation of the transactions contemplated hereby and thereby by such Selling
Shareholder do not and will not (A) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of such Selling Shareholder pursuant to, any agreement,
instrument, franchise, license or permit to which such Selling Shareholder is a
party or by which its properties or assets may be bound, or (B) violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over such Selling Shareholder or any of its properties or assets.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and each Firm Shares Selling
Shareholder, severally and not jointly, agrees to sell to the Underwriters and
the Underwriters, severally and not jointly, agree to purchase from the Company
and each Firm Shares Selling Shareholder, at a purchase price per share of
$____, the number of Firm Shares which bears the same proportion to the number
of Firm Shares to be sold by the Company or by that Firm Shares Selling
Shareholder, as the case may be, as the number of Firm Shares set forth opposite
the respective names of the Underwriters in Schedule I hereto bears to the total
number of Firm Shares to be sold by the Company and the Firm Shares Selling
Shareholders, plus any additional number of Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the office of Gibson, Dunn &
Crutcher LLP, 200 Park Avenue, New York, New York 10166, or at such other place
as shall be agreed upon by you, the Firm Shares Selling Shareholders and the
Company, at 10:00 A.M. on the third business day (unless postponed in accordance
with the provisions of Section 11 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third business day after the
determination of the public offering price of the Shares), or such other time
not later than ten business days after such date as shall be agreed upon by you,
the Firm Shares Selling Shareholders and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall be
made to the Company and the Attorney in Fact on behalf of the Firm Shares
Selling Shareholders by wire transfer or certified or official bank check or
checks
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drawn in same day funds payable to the order of the Company and the Attorney in
Fact, against delivery to you for the respective accounts of the Underwriters of
certificates for the Shares to be purchased by them. Certificates for the Firm
Shares shall be registered in such name or names and in such authorized
denominations as you may request in writing at least two full business days
prior to the Closing Date. The Company and the Firm Shares Selling Shareholders
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the
Underwriters the option to purchase from the Company up to __________ Additional
Shares, and, if such option is exercised in full, the Additional Shares Selling
Shareholders severally hereby grant to the Underwriters the option to purchase
up to an aggregate of _________ Additional Shares in the respective amounts set
forth opposite the names of such Additional Shares Selling Shareholders on
Schedule III hereto, at the same purchase price per share to be paid by the
Underwriters to the Company and the Firm Shares Selling Shareholders for the
Firm Shares as set forth in this Section 3, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Company
and the Additional Shares Selling Shareholders. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised
and the date and time, as reasonably determined by you, when the Additional
Shares are to be delivered (such date and time being herein sometimes referred
to as the "Additional Closing Date"); provided, however, that the Additional
Closing Date shall not be earlier than the Closing Date or earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed in
accordance with the provisions of Section 11 hereof). If the option granted
hereby is exercised in part but in excess of the ________ Additional Shares to
be sold by the Company, the respective number of Additional Shares to be sold by
each of the Additional Shares Selling Shareholders listed on Schedule III hereto
shall be determined on a pro rata basis in accordance with the percentages set
forth opposite their names on Schedule III hereto, adjusted by you in such
manner as to avoid fractional shares. Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least two full business days prior to the
Additional Closing Date. The Company and the Additional Shares Selling
Shareholders will permit you to examine and package such certificates for
delivery at least one business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 11 hereof) bears to 7,000,000, subject,
however, to such adjustments to eliminate any fractional shares as you in your
sole discretion shall make.
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Payment for the Additional Shares shall be made by wire transfer
or certified or official bank check or checks, in same day funds, payable to the
order of the Company or the Attorney in Fact, at the offices of Gibson, Dunn &
Crutcher LLP, 200 Park Avenue, New York, New York 10166, or such other location
as may be mutually acceptable, upon delivery of the certificates for the
Additional Shares to you for the respective accounts of the Underwriters.
4. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) If the Registration Statement has not yet been
declared effective, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b), the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within
the prescribed time period and will provide evidence satisfactory to you of such
timely filing.
The Company will notify you immediately (and, if requested
by you will confirm such notice in writing) (i) when the Registration Statement
and any amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments from the
Commission and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration Statement
or any amendment of or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b)) that differs from the prospectus
on file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration Statement to which you shall
reasonably object in writing after being timely furnished in advance a copy
thereof.
(b) If at any time when a prospectus relating to the
Shares is required to be delivered under the Act any event shall have occurred
as a result of which the Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the Act or
the Regulations, the Company will notify you promptly and prepare and file with
the Commission an appropriate amendment or supplement (in form and substance
reasonably satisfactory to you) which will correct such statement or omission
and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you five signed
copies of the Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver to each of the Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such qualification in effect
for so long as required for the distribution thereof; except that in no event
shall the Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to you as soon
as practicable, but not later than 90 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(f) During the period of 90 days from the Closing Date,
the Company will not, without your prior written consent, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock), and the Company will obtain
the undertaking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you and listed on Schedule IV
hereto not to engage in any of the aforementioned transactions on their own
behalf, other than the Company's sale of Shares hereunder, the Company's
issuance of Common Stock upon the exercise of presently outstanding stock
options, the Company's issuance of up to 5,000,000 unregistered shares in
connection with one or more acquisitions by the Company, the Company's grants of
options under its existing stock option plans and the Company's issuance of
shares under its existing employee stock purchase plan.
(g) During a period of three years from the effective date
of the Registration Statement, the Company will furnish to you copies of (i) all
reports to its
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shareholders; and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any national
securities exchange.
(h) The Company will apply the proceeds from the sale of
the Shares sold by the Company as set forth under "Use of Proceeds" in the
Prospectus.
6. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholders
hereunder, including those in connection with (i) preparing, printing,
duplicating, filing and distributing the Registration Statement, as originally
filed and all amendments thereof (including all exhibits thereto), any
preliminary prospectus, the Prospectus and any amendments or supplements thereto
(including, without limitation, fees and expenses of the Company's accountants
and counsel), the underwriting documents (including this Agreement and the
Agreement Among Underwriters) and all other documents related to the public
offering of the Shares (including those supplied to the Underwriters in
quantities as hereinabove stated), (ii) the issuance, transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the qualification of the Shares under state or foreign securities
or Blue Sky laws, including the costs of printing and mailing a preliminary and
final Blue Sky Survey and the fees of counsel for the Underwriters and such
counsel's reasonable disbursements in relation thereto, (iv) the listing of the
Shares on The Nasdaq National Market, (v) filing fees of the Commission and the
National Association of Securities Dealers, Inc., (vi) the cost of printing
certificates representing the Shares and (vii) the cost and charges of any
transfer agent or registrar.
7. Covenant of the Selling Shareholders. Each Selling Shareholder
agrees that, during the period of 90 days from the Closing Date, such Selling
Shareholder will not, without your prior written consent, offer, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock) other than the sale of Shares
to you hereunder.
8. Conditions of the Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (for purposes
of this Section 8, "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any certificates, opinions, written statements or
letters furnished to you or to Gibson, Dunn & Crutcher LLP ("Underwriters'
Counsel") pursuant to this Section 8 of any material misstatement or omission,
to the performance in all material respects by each of the Company and the
Selling Shareholders of its or their obligations hereunder, and to the following
additional conditions:
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(a) The Registration Statement shall have become effective
not later than 5:30 P.M., New York time, on the date of this Agreement or at
such later time and date as shall have been consented to in writing by you; if
the Company shall have elected to rely upon Rule 430A of the Regulations, the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 5(a) hereof; and, at or prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the
opinion of Kramer, Levin, Naftalis & Frankel, counsel for the Company, dated the
Closing Date addressed to the Underwriters and in form and substance reasonably
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Florida. The Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware.
(ii) The Shares to be delivered by the Company on the
Closing Date or the Additional Closing Date have been duly and validly
authorized and, when delivered by the Company in accordance with this
Agreement, will be duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject
to any preemptive rights. The Shares to be delivered by the Selling
Shareholders on the Closing Date or the Additional Closing Date have
been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of or subject to any
preemptive rights. The Common Stock, the Firm Shares and the Additional
Shares conform to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(iii) The Shares to be sold under this Agreement to
the Underwriters are duly listed on The Nasdaq National Market.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) To the best of such counsel's knowledge, there
is no litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving
the properties or business of, the Company, any of its subsidiaries or
the Partnership, which is of a character required to be disclosed in the
Registration Statement and the Prospectus which has not been properly
disclosed therein.
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(vi) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
by the Company do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit referred to in or
filed as an exhibit to the Registration Statement or otherwise known to
such counsel to which the Company, any of its subsidiaries or the
Partnership is a party or by which any of such entities or their
respective properties or assets may be bound or (B) violate or conflict
with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries
or the Partnership, or, to the best knowledge of such counsel, violate
or conflict with any judgment, decree, order, statute (other than state
securities or Blue Sky laws), rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction
over the Company, any of its subsidiaries or the Partnership or any of
their respective properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental, or regulatory
agency or body having jurisdiction over the Company, any of its
subsidiaries or the Partnership or any of their respective properties or
assets is required for the execution, delivery and performance by the
Company of this Agreement or the consummation by the Company of the
transactions contemplated hereby, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters or pursuant to the
Corporate Financing Rule of the National Association of Securities
Dealers, Inc. (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(vii) The Registration Statement and the Prospectus
and any amendments thereof or supplements thereto (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Act and the Regulations.
(viii) The Registration Statement is effective under
the Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and, to the best
knowledge of such counsel, no proceedings therefor have been initiated
or threatened by the Commission and all filings required by Rule 424(b)
of the Regulations have been made.
In addition, such opinion shall also state that although
such counsel has not undertaken, except as otherwise indicated in their
opinions, to determine independently, and does not assume any responsibility
for, the accuracy or completeness of the statements in
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the Registration Statement, such counsel has participated in the preparation of
the Registration Statement and the Prospectus, including a review and discussion
of the contents thereof, and nothing has come to the attention of such counsel
that has caused it to believe that the Registration Statement at the time the
Registration Statement became effective (including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to Rule
430A(b), if applicable), or the Prospectus, as of its date and as of the Closing
Date or the Additional Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein (as to the
Prospectus, in the light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Registration Statement or
the Prospectus, as of its respective date, and as of the Closing Date or the
Additional Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein (as to
the Prospectus, in the light of the circumstances under which they were made)
not misleading (it being understood that such counsel need express no statement
with respect to the financial statements and notes thereto and the schedules and
other financial and statistical data included in the Registration Statement or
Prospectus).
In rendering such opinion, such counsel may rely: (A) as
to matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and certificates or other written statements of officers of departments
of various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(c) At the Closing Date you shall have received the
opinion of Mitchell W. Legler, counsel for the Company and the Selling
Shareholders, dated the Closing Date addressed to the Underwriters and in form
and substance reasonably satisfactory to Underwriters' Counsel, to the effect
that:
(i) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. The
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware.
Each of the Company, its subsidiaries and the Partnership is duly
qualified and in good standing as a foreign corporation or limited
partnership, as the case may
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be, in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures
to be so qualified or in good standing which will not in the aggregate
have a material adverse effect on the Company, its subsidiaries and the
Partnership taken as a whole. Each of the Company, its subsidiaries and
the Partnership has all requisite corporate or partnership authority, as
the case may be, to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus. All of the issued and
outstanding capital stock of each corporate subsidiary of the Company
has been duly and validly issued and is fully paid and non-assessable
and was not issued in violation of pre-emptive rights and is owned
directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever. All of the outstanding limited and general partnership
interests in the Partnership have been duly and validly issued and were
not issued in violation of pre-emptive rights created by the
Partnership, the Company or any applicable statute, law, rule or
regulation and are owned directly or indirectly by the Company, free and
clear of any lien, encumbrance, claim, security interest, restriction on
transfer (other than those contained in the Partnership Agreement, as
amended), voting trust or other defect of title whatsoever.
(ii) The Company has an authorized capital stock as
set forth in the Registration Statement and the Prospectus. All of the
outstanding shares of capital stock of the Company are duly and validly
authorized and issued, fully paid and non-assessable and were not issued
and are not now in violation of or subject to any preemptive rights. The
Shares to be delivered by the Company on the Closing Date or the
Additional Closing Date have been duly and validly authorized and, when
delivered by the Company in accordance with this Agreement, will be duly
and validly issued, fully paid and non-assessable and will not have been
issued in violation of or subject to any preemptive rights. The Shares
to be delivered by the Selling Shareholders on the Closing Date or the
Additional Closing Date have been duly and validly authorized and
issued, are fully paid and non-assessable and were not issued in
violation of or subject to any preemptive rights. The Common Stock, the
Firm Shares and the Additional Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(iv) To the best of such counsel's knowledge, there
is no litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving
the properties or business of, the Company, any of its subsidiaries or
the Partnership, which is of a character required to be disclosed in
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the Registration Statement and the Prospectus which has not been
properly disclosed therein.
(v) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
by the Company do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit referred to in or
filed as an exhibit to the Registration Statement or otherwise known to
such counsel to which the Company, any of its subsidiaries or the
Partnership is a party or by which any of such entities or their
respective properties or assets may be bound or (B) violate or conflict
with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries
or the Partnership, or, to the best knowledge of such counsel, any
judgment, decree, order, statute (other than state securities or Blue
Sky laws), rule or regulation of any court or any public, governmental
or regulatory agency or body having jurisdiction over the Company, any
of its subsidiaries or the Partnership or any of their respective
properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental, or regulatory agency or body having
jurisdiction over the Company, any of its subsidiaries or the
Partnership or any of their respective properties or assets is required
for the execution, delivery and performance by the Company of this
Agreement or the consummation by the Company of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters or pursuant to the
Corporate Financing Rule of the National Association of Securities
Dealers, Inc. (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(vi) This Agreement, the Power of Attorney and the
Custody Agreement have been duly and validly authorized (for entities
with respect to the Power of Attorney and the Custody Agreement),
executed and delivered by each of the Selling Shareholders; the Power of
Attorney and the Custody Agreement are legal, valid and binding
agreements of each of the Selling Shareholders enforceable in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity, and except that such counsel need not express any opinion as to
the enforceability of the indemnification provisions therein.
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(vii) Each of the Selling Shareholders has full legal
right and power (with respect to entities) to sell, assign, transfer and
deliver the Shares to be sold by such Selling Shareholder in the manner
provided in this Agreement.
(vii) Delivery of the certificates for the Shares to
be sold by the Selling Shareholders pursuant hereto upon payment
therefor will pass title thereto to the Underwriters severally, free and
clear of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title (other
than any such claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title created
by any Underwriter), assuming that the several Underwriters are good
faith purchasers and without notice of any adverse claim.
(ix) The execution, delivery and performance of this
Agreement and the Power of Attorney and the Custody Agreement and the
consummation of the transactions contemplated hereby and thereby by the
Selling Shareholders do not and will not (A) conflict with or result in
a breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any
Selling Shareholder pursuant to, any agreement, instrument, franchise,
license or permit known to such counsel to which any Selling Shareholder
is a party or by which its properties or assets may be bound, or (B) to
the best knowledge of such counsel, violate or conflict with any
judgment, decree, order, statute (other than state securities or Blue
Sky laws), rule or regulation of any court or any public, governmental
or regulatory agency or body having jurisdiction over any of the Selling
Shareholders or any of their respective properties or assets.
(x) The Attorney in Fact has been duly authorized by
each Selling Shareholder to execute and deliver on behalf of such
Selling Shareholder this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby and to
deliver the Shares to be sold by each Selling Shareholder and receive
payment therefor pursuant hereto.
(xi) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental, or regulatory agency or body having
jurisdiction over the Selling Shareholders or any of their respective
properties or assets is required for the sale of the Shares to be sold
by the Selling Shareholders pursuant to this Agreement, except for
(1) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
In addition, such opinion shall also state that although
such counsel has not undertaken, except as otherwise indicated in their
opinions, to determine independently,
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and does not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including a review
and discussion of the contents thereof, and nothing has come to the attention of
such counsel that has caused it to believe that the Registration Statement at
the time the Registration Statement became effective (including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b), if applicable), or the Prospectus, as of its date and
as of the Closing Date or the Additional Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein (as to the Prospectus, in the light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Registration Statement or the Prospectus, as of its respective date, and as of
the Closing Date or the Additional Closing Date, as the case may be, contained
or contains an untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein (as to the Prospectus, in the light of the circumstances
under which they were made) not misleading (it being understood that such
counsel need express no statement with respect to the financial statements and
notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
In rendering such opinion, such counsel may rely: (A) as
to matters involving the application of laws other than the laws of the United
States and the State of Florida, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' Counsel) of other
counsel reasonably acceptable to Underwriters' Counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and of the
Selling Shareholders and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its subsidiaries and of
the Selling Shareholders (to the extent applicable), provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel. The
opinion of such counsel for the Company shall state that the opinion of any such
other counsel is in form satisfactory to such counsel and, in such counsel's
opinion, you and such counsel are justified in relying thereon.
(d) All proceedings taken in connection with the sale of
the Firm Shares and the Additional Shares as herein contemplated shall be
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, and the Underwriters shall have received from said Underwriters'
Counsel a favorable opinion, dated as of the Closing Date with respect to the
issuance and sale of the Shares, the Registration Statement and the Prospectus
and such other related matters as you may reasonably require, and the Company
and the Selling Shareholders shall have furnished to Underwriters' Counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
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(e) At the Closing Date you shall have received a
certificate on behalf of the Company signed by the Chief Executive Officer and
Chief Financial Officer of the Company, dated the Closing Date, to the effect
that (i) the condition set forth in subsection (a) of this Section 8 has been
satisfied, (ii) as of the date hereof and as of the Closing Date the
representations and warranties of the Company set forth in Section l hereof are
accurate, (iii) as of the Closing Date the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company, its subsidiaries and the
Partnership, taken as a whole, have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change in the business prospects, properties,
operations, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(f) At the time this Agreement is executed and at the
Closing Date, you shall have received a letter from Coopers & Lybrand L.L.P.,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date, addressed to the Underwriters
and in form and substance reasonably satisfactory to you: (i) to the effect that
they are independent certified public accountants with respect to the Company
within the meaning of the Act and the Regulations and stating that the answer to
Item 10 of the Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the financial statements and schedules of
the Company included in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the applicable published
rules and regulations of the Commission thereunder; (iii) stating that, on the
basis of procedures consisting of a reading of the latest available unaudited
interim consolidated financial statements of the Company, and its subsidiaries,
a reading of the minutes of meetings and consents of the shareholders and boards
of directors of the Company and its subsidiaries and the committees of such
boards subsequent to December 31, 1996, inquiries of officers and other
employees of the Company and its subsidiaries who have responsibility for
financial and accounting matters of the Company and its subsidiaries with
respect to transactions and events subsequent to December 31, 1996 and other
specified procedures and inquiries to a date not more than five days prior to
the date of such letter, nothing has come to their attention that would cause
them to believe that: (A) with respect to the period subsequent to December 31,
1996, there were, as of the date of the most recent available monthly
consolidated fiubsidiaries, if any, and as of a specified date not more than
five days prior to the date of such letter, any changes in the capital stock or
long-term indebtedness of the Company or any decrease in the net current assets
or stockholders' equity of the Company, in each case as compared with the
amounts shown in the most recent balance sheet presented in the Registration
Statement and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are
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set forth in such letter or (B) during the period from January 1, 1997 to the
date of the most recent available monthly consolidated financial statements of
the Company and its subsidiaries, if any, and to a specified date not more than
five days prior to the date of such letter, there was any decrease, as compared
with the corresponding period in the prior fiscal year, in total revenues, or
total or per share net income, except for decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; and (C) stating that they have compared such dollar
amounts, numbers of shares, percentages of revenues and earnings, and other
financial information pertaining to the Company and its subsidiaries set forth
in the Registration Statement and the Prospectus, which have been specified by
you prior to the date of this Agreement, to the extent that such amounts,
numbers, percentages, and information may be derived from the general accounting
and financial records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you set forth in such letter, and found them to be in agreement.
(g) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to you such other information, certificates
and documents as you may reasonably request.
(h) You shall have received from such officers, directors
and shareholders as have been heretofore designated by you and listed on
Schedule IV hereto an agreement to the effect that such person will not,
directly or indirectly, without your prior written consent, offer, sell, offer
or agree to sell, grant any option to purchase or otherwise dispose (or announce
any offer, sale, grant of an option to purchase, or other disposition) of any
shares of Common Stock (or any securities convertible into, exercisable for or
exchangeable for shares of Common Stock) for a period of 90 days after the
Closing Date except for the sale of the Shares by the Selling Shareholders
under this Agreement.
(i) At the Closing Date, the Shares shall have been listed
on The Nasdaq National Market.
(j) The Attorney in Fact, at the Closing Date, shall have
delivered to you a certificate to the effect that the Attorney in Fact is not
aware that any of the representations and warranties of the Selling Shareholders
as set forth in this Agreement are not true and correct as of such date.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 8 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by you at, or at any time prior to, the
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Additional Closing Date. Notice of such cancellation shall be given to the
Company and the Selling Shareholders in writing, or by telephone, telex or
telegraph, confirmed in writing.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Shares, as originally filed or any amendment thereto, or
any related preliminary prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (as to the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided,
however, that the Company will not be liable in any such case to the extent but
only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through you expressly for use therein; and ; provided, further,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages and liabilities and judgments
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each of the Selling Shareholders, severally as to
itself only, agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
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commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact relating to such Selling Shareholder
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereto, or any related preliminary prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact relating to such Selling Shareholder required to be stated therein
or necessary to make the statements therein (as to the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided,
however, that no Selling Shareholder shall be liable under this Section 9 in an
amount exceeding the total net price at which the Shares sold by such Selling
Shareholder were offered to the public; and provided, further, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages and liabilities and judgments purchased Shares, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment. This indemnity
agreement will be in addition to any liability which the any Selling
Shareholder may otherwise have, including under this Agreement.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
Selling Shareholder against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
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reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you expressly for use
therein; provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount (as shown on
the cover page of the Prospectus) applicable to the Shares purchased by such
Underwriter hereunder. This indemnity will be in addition to any liability which
any Underwriter may otherwise have, including under this Agreement. Each of the
Company and each Selling Shareholder acknowledges that the statements set forth
in the second, third, fourth, fifth and last paragraphs and last sentence of the
seventh paragraph under the caption "Underwriting" in the Prospectus, the last
paragraph on the front cover page of the Prospectus and the final two paragraphs
on the inside front cover page of the Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
registration statement relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus or the Prospectus or in
any amendment thereof or supplement thereto, as the case may be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action or written notice of any threat thereof, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify each party against whom indemnification is to be sought
in writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 9). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties (it being understood, however, that the indemnifying party
or parties shall not be liable for the fees and expenses of more than one
separate local counsel in any one action or series of related actions in the
same jurisdiction representing the indemnified party or parties in such action).
Anything in this Section 9 to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent shall not be
unreasonably withheld.
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10. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 9 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders, taken together, and the Underwriters shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting, in the case of losses, claims, damages, liabilities and expenses
suffered by the Company or the Selling Shareholders, any contribution received
by the Company or the Selling Shareholders from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and the
Selling Shareholders taken together, and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders taken together, and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Selling Shareholders, taken together, and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders, taken together, and the Underwriters shall be deemed to be
in the same proportion as (x) the total proceeds from the offering (net of
underwriting discount but before deducting expenses) received by the Company and
the Selling Shareholders and (y) the underwriting discount received by the
Underwriters, respectively, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the Selling
Shareholders, taken together, and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Shareholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 10, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount (as set forth on the cover
page of the Prospectus) applicable to the Shares purchased by such Underwriter
hereunder, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the
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<PAGE>
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this
Section 10, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this Section 10. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 10 or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its
consent; provided, however, that such consent shall not be unreasonably
withheld.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in
its or their obligation to purchase Firm Shares or Additional Shares hereunder,
and if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, the number of Firm Shares or Additional Shares
to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm Shares set forth opposite their respective names in Schedule I hereto bear
to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more than
10% of the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be to which such default relates on
the terms contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 11, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company and the Selling Shareholders to sell the Additional Shares shall
thereupon terminate, without liability on the part of the Company or the Selling
Shareholders with respect thereto (except in each case as provided in Sections
6, 9(a) and 10 hereof) or the Underwriters but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the
25
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<PAGE>
other Underwriters and the Company and the Selling Shareholders for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares
to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you, the Company or the Selling Shareholders shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be, for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which may thereby be made necessary or advisable. The term "Underwriter" as used
in this Agreement shall include any party substituted under this Section 11 with
like effect as if it had originally been a party to this Agreement with respect
to such Firm Shares and Additional Shares.
12. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company and the Selling Shareholders contained in this Agreement, including
the agreements contained in Section 6, the indemnity agreements contained in
Section 9 and the contribution agreements contained in Section 10, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, or by or on behalf of any Selling Shareholder and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Sections l and 2 and the agreements contained in
Sections 6, 9, 10 and 13(d) hereof shall survive the termination of this
Agreement, including termination pursuant to Section 11 or 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later
of (i) when you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution and delivery
of this Agreement by the Company, the Selling Shareholders and you. If the
Registration Statement shall not have been declared effective by the Commission
on or prior to 5:30 P.M. on the date hereof, this Agreement shall thereupon
terminate without liability to the Company, the Selling Shareholders or the
Underwriters except as herein expressly provided. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company or the Selling
Shareholders by notifying you or by you notifying the Company and the Selling
Shareholders. Notwithstanding the foregoing, the provisions of this Section 13
and of Sections 1, 2, 6, 9 and 10 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement
at any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, (A) if any domestic or international event or act or
occurrence has materially disrupted, or in your
26
<PAGE>
<PAGE>
opinion will in the immediate future materially disrupt, the market for the
Company's securities or securities in general; or (B) if trading on the New York
or American Stock Exchanges shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the New York or American Stock Exchanges
by the New York or American Stock Exchanges or by order of the Commission or any
other governmental authority having jurisdiction; or (C) if a banking moratorium
has been declared by a New York, Florida or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm Shares
or the Additional Shares, as the case may be, shall have become effective; or
(D) (i) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (ii) if there shall have
been such a change in political, financial or economic conditions, if the effect
of any such event in (i) or (ii) as in your judgment makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 13
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 13(a) hereof or (ii) Section 11(b) or 13(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or any Selling Shareholder to perform any agreement herein or comply
with any provision hereof, the Company and the Selling Shareholders will,
subject to demand by you, reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
14. Notice. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Stearns & Co. Inc., 245 Park Avenue,
New York, New York 10167, Attention: Steven Begleiter; if sent to the Company,
shall be mailed, delivered, or telegraphed and confirmed in writing to the
Company, 3450 Buschwood Park Drive, Tampa, Florida 33618, Attention: Stuart D.
Marvin, Chief Financial Officer; and if sent to any Selling Shareholder, shall
be mailed, delivered or telegraphed and confirmed in writing to such Selling
Shareholder c/o Mitchell W. Legler, Independent Drive, Suite 3104, Jacksonville,
Florida 32202.
15. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriters, the Company and the Selling
Shareholders and the controlling persons, directors, officers, employees and
agents referred to in Sections 9 and 10, and their respective successors and
assigns (including the heirs and personal representatives of the individual
Selling Shareholders), and no other person shall have or be construed to have
27
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<PAGE>
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term "successors
and assigns" shall not include a purchaser, in its capacity as such, of Shares
from any of the Underwriters.
16. Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute one and the same instrument.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
28
<PAGE>
<PAGE>
If the foregoing correctly sets forth the understanding among
you, the Company and the Selling Shareholders, please so indicate in the space
provided below for that purpose.
Very truly yours,
IMC MORTGAGE COMPANY
By _____________________________
FOR THE SELLING SHAREHOLDERS
LISTED ON SCHEDULE II AND
SCHEDULE III HERETO
By _____________________________
Attorney in Fact
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
OPPENHEIMER & CO., INC.
PAINEWEBBER INCORPORATED
By: Bear, Stearns & Co. Inc.
By __________________________________
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
29
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<PAGE>
SCHEDULE I
Number of Firm
Name of Underwriter Shares to Be Purchased
- ------------------- -------------------------
Bear, Stearns & Co. Inc.
J.P. Morgan Securities Inc.
Oppenheimer & Co., Inc.
PaineWebber Incorporated
Total ........ 7,000,000
------------------------------
<PAGE>
<PAGE>
SCHEDULE II
Name of Firm Shares Number of Firm
Selling Shareholder Shares to Be Sold
- ------------------------ ------------------
Total ........... 1,400,000
------------------------------
<PAGE>
<PAGE>
SCHEDULE III
Percentage of
Name of Maximum Number of Additional Shares
Additional Shares Additional in Excess of _______
Selling Shareholder Shares to Be Sold to be Sold
- ------------------- ------------------ -----------
<PAGE>
<PAGE>
SCHEDULE IV
Directors & Officers:
- ----------------------
George Nicholas
Thomas G. Middleton
George Freeman
Timothy W. Griffin
Susan W. McCarthy
Karen S. Bausman
Laurie S. Wockenfuss
David B. MacDonald
Dennis J. Pitocco
Jean S. Schwindt
Joseph P. Goryeb
Mitchell W. Legler
Allen D. Wyckle
Shareholders:
- --------------
All shareholders holding 100,000 shares or more.
<PAGE>
<PAGE>
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
April 21, 1997
IMC Mortgage Company
3450 Buschwood Park Drive
Suite 250
Tampa, FL 33618
Re: IMC Mortgage Company: Registration Statement
on Form S-1 (Registration No. 333-21823)
----------------------------------------------
Dear Sirs and Mesdames:
We have acted as counsel to IMC Mortgage Company, a Florida
corporation (the "Company"), in connection with the preparation and filing of
the above-captioned Registration Statement on Form S-1 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
covering 8,050,000 shares of common stock, par value $.01 per share, of the
Company (the "Shares"), including up to 1,050,000 shares of common stock to be
sold upon exercise of an over-allotment option granted by the Company to Bear,
Stearns & Co. Inc., J.P. Morgan Securities Inc., Oppenheimer & Co. Inc., and
PaineWebber Incorporated, as representatives of the several underwriters (the
"Representatives"). The Shares are to be sold pursuant to an underwriting
agreement to be entered into by and among the Company and the Representatives
(the "Underwriting Agreement").
<PAGE>
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
IMC Mortgage Company
April 21, 1997
We are not admitted to practice under the laws of the state of
Florida. With respect to the opinion expressed herein, as to all matters
governed by Florida law, we have relied upon the opinion of Mitchell W. Legler,
P.A., a copy of which is attached hereto. Based on the foregoing, it is our
opinion that:
(i) The issuance of the Shares has been lawfully and duly
authorized; and
(ii) When the Shares have been issued, delivered and sold pursuant to
the Underwriting Agreement and upon the terms stated in the
Registration Statement, the Shares will be legally issued, fully
paid and nonassessable.
We are attorneys admitted to the Bar of the State of New York,
and we express no opinion as to the laws of any other jurisdiction other than
the laws of the United States of America.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus forming a part thereof. In giving such consent we do
not thereby concede that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
We are delivering this opinion to the Company, and no person
other than the Company is entitled to rely upon it without our prior written
consent.
Very truly yours,
/s/ KRAMER, LEVIN, NAFTALIS & FRANKEL
<PAGE>
<PAGE>
MITCHELL W. LEGLER, P.A.
1 Independent Drive, Suite 3104
Jacksonville, Florida 32202
Telephone 904-791-9111 Facsimile 904-791-9333
April 21, 1997
IMC Mortgage Company
3450 Buschwood Park Drive
Tampa, Florida 33618
Re: IMC Mortgage Company: Registration Statement
on Form S-1 (Registration No. 333-21823)
----------------------------------------------
Dear Sirs and Mesdames:
We have acted as special counsel to IMC Mortgage Company, a
Florida corporation (the "Company"), in connection with the preparation and
filing of the above-captioned Registration Statement on Form S-1 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), covering 8,050,000 shares of common stock, par value $.01 per
share, of the Company (the "Shares"), including up to 1,050,000 shares of common
stock to be sold upon exercise of an over-allotment option granted by the
Company to Bear, Stearns & Co. Inc., J.P. Morgan Securities Inc., Oppenheimer &
Co., Inc. and PaineWebber Incorporated, as representatives of the several
underwriters (the "Representatives"). The Shares are to be sold pursuant to an
underwriting agreement to be entered into by and among the Company and the
Representatives (the "Underwriting Agreement").
We are admitted to practice under the laws of the state of
Florida. Based on the foregoing, it is our opinion that:
(i) The issuance of the Shares has been lawfully and duly
authorized; and
(ii) When the Shares have been issued, delivered and sold
pursuant to the Underwriting Agreement and upon the
terms stated in the Registration Statement, the Shares
will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an attachment to
the opinion of Kramer, Levin, Naftalis & Frankel filed as Exhibit 5.1 to the
Registration Statement. We hereby consent to the reliance of Kramer, Levin,
Naftalis & Frankel on this opinion with respect to any matters addressed herein
which are governed by Florida law.
Very truly yours,
/s/ MITCHELL W. LEGLER, P.A.
<PAGE>
<PAGE>
EXECUTION COPY
===============================================================================
CUSTODY AGREEMENT
among
IMC MORTGAGE COMPANY,
IMC CORPORATION OF AMERICA,
INDUSTRY MORTGAGE COMPANY, L.P.,
IMC INVESTMENT CORP.,
and COREWEST BANC
jointly and severally
as Borrowers,
PAINE WEBBER REAL ESTATE SECURITIES INC.,
Lender
and
FIRST NATIONAL BANK OF BOSTON
as Custodian
Dated as of February 28, 1997
===============================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS............................................................................................... 1
SECTION 1. Definitions................................................................................ 1
SECTION 2. Appointment of Custodian................................................................... 3
SECTION 3. Delivery of Mortgage Files to Custodian.................................................... 4
SECTION 4. The Custodian's Receipt, Examination and Certification of
Mortgage Files and Issuance of Trust Receipt........................................... 6
SECTION 5. Possession of Mortgage Files............................................................... 7
SECTION 6. Release of Custodian's Mortgage Files for Servicing........................................ 9
SECTION 7. Review and Deposit of Additional Pledged Loans............................................. 10
SECTION 8. Waiver by the Custodian.................................................................... 10
SECTION 9. Right of Inspection by Lender and Third Person............................................. 10
SECTION 10. Custodian's Fees and Expenses.............................................................. 10
SECTION 11. Termination of Agreement................................................................... 11
SECTION 12. Resignation and Removal of Custodian....................................................... 11
SECTION 13. Limitation on Obligations of the Custodian................................................. 12
SECTION 14. Notices.................................................................................... 13
SECTION 15. No Assignment or Delegation by the Custodian............................................... 14
SECTION 16. Controlling Law............................................................................ 14
SECTION 17. Agreement for the Exclusive Benefit of Parties............................................. 14
SECTION 18. Entire Agreement........................................................................... 14
SECTION 19. Exhibits................................................................................... 14
SECTION 20. Indulgences, Not Waivers................................................................... 14
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 21. Titles Not to Affect Interpretation........................................................ 15
SECTION 22. Provisions Separable....................................................................... 15
SECTION 23. Representations and Warranties of the Custodian............................................ 15
SECTION 24. Counterparts............................................................................... 16
SECTION 25. Additional Borrowers....................................................................... 16
EXHIBITS
EXHIBIT A - LETTER OF TRANSMITTAL...................................................................... A-1
EXHIBIT B - NOTICE TO THE CUSTODIAN.................................................................... B-1
EXHIBIT C - TRUST RECEIPT.............................................................................. C-1
EXHIBIT D - NOTICE OF TERMINATION...................................................................... D-1
EXHIBIT E - NOTICE OF DEFAULT CERTIFICATE.............................................................. E-1
EXHIBIT F - LETTER TO CUSTODIAN RE: LENDER'S TRUST RECEIPT............................................. F-1
EXHIBIT G - LETTER TO CUSTODIAN RE: ENDORSEE'S TRUST RECEIPT........................................... G-1
EXHIBIT H - REQUEST FOR RELEASE OF DOCUMENTS........................................................... H-1
EXHIBIT I - CONFIRMATION OF REPAYMENT AND RECEIPT...................................................... I-1
EXHIBIT J - BORROWER ADDITION AGREEMENT
</TABLE>
ii
<PAGE>
<PAGE>
THIS CUSTODY AGREEMENT entered into as of February 28, 1997,
by and among IMC MORTGAGE COMPANY, IMC CORPORATION OF AMERICA, INDUSTRY MORTGAGE
COMPANY, L.P., IMC INVESTMENT CORP. and COREWEST BANC, jointly and severally,
each a "Borrower" and collectively "Borrowers"), PAINE WEBBER REAL ESTATE
SECURITIES INC. ("Lender"), and FIRST NATIONAL BANK OF BOSTON (the "Custodian"),
recites and provides:
RECITALS
Borrowers and Lender have entered into that certain Loan and
Security Agreement dated as of February 28, 1997 (the "Loan Agreement"). IMC
Mortgage Company is obligated to service the Pledged Loans pursuant to the terms
and conditions of the Loan Agreement.
Borrowers desire to deposit with the Custodian all Pledged
Notes and Mortgages evidencing the Pledged Loans, together with the other
documents included in the Mortgage Files related to the Pledged Loans, to be
held by the Custodian as bailee and custodian for Lender and its assigns until
otherwise instructed by Lender, all in connection with Advances under the Loan
Agreement.
Lender may transfer or assign its interest in the Pledged
Loans to one or more Third Persons or Assignee, and the Custodian shall act as
custodian for such Third Persons or Assignee, as the case may be. Custodian
desires and is able to perform the duties and obligations as custodian for
Lender as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, and for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions. For the purposes of this Agreement,
the following terms shall have the indicated meanings unless the context or use
indicates another or different meaning and intent, the definitions of such terms
are equally applicable to the singular and the plural forms of such terms, the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular section or other
subdivision, and section references refer to sections of this Agreement. All
terms used herein and not defined shall have the respective meanings set forth
in the Loan Agreement.
"Agreement" shall mean this Custody Agreement, as supplemented
or amended from time to time.
"Assignee" shall mean The Chase Manhattan Bank, N.A., as agent
for certain beneficiaries pursuant to certain repurchase transaction triparty
custody agreements.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
<PAGE>
<PAGE>
"Business Day" shall mean any day other than (a) Saturday,
Sunday and any day on which banks located in the City of New York, New York are
authorized or obligated by law or executive order to be closed, or (b) any other
day on which Lender is closed for business.
"Custodial Register" shall mean the register maintained by
Custodian pursuant to Section 5(f), which reflects as to each Pledged Loan the
Person to whom the related Trust Receipt has been issued.
"Custodian" shall mean First National Bank of Boston, or its
successor custodian.
"Letter of Transmittal" shall have the meaning set forth in
Section 3(b) of this Agreement.
"Loan Number" shall have the meaning set forth in Section 3(a)
of this Agreement.
"Mortgage" means the mortgage, deed of trust or other
instrument creating a first or second lien on an estate in fee simple interest
in real property securing the Pledged Note.
"Mortgage Assignment" shall mean an assignment of the Mortgage
in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage.
"Mortgage File" shall have the meaning set forth in Section
3(b) hereof.
"Mortgage Loan" means any residential mortgage loan originated
by Borrower in accordance with the Seller's Guide.
"Notice Loan Schedule" shall have the meaning set forth in
Section 5(b) of this Agreement.
"Notice of Termination" shall mean the notice substantially in
the form of Exhibit D hereto.
"Officer's Certificate" shall mean a certificate signed by (i)
an officer or an employee, authorized to sign an officer's certificate, of
Borrower or other Person having officers, submitting a Mortgage File to the
Custodian or (ii) the closing attorney for the Pledged Loan. (The text of any
particular Officer's Certificate may be stamped upon a document constituting a
portion of a Mortgage File so long as such stamped text is signed by manual or
facsimile signature by an officer or an employee authorized to sign an Officer's
Certificate.)
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
2
<PAGE>
<PAGE>
"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan
that is pledged by Borrower and accepted by Lender in connection with an
Advance.
"Pledged Loan Schedule" shall mean a schedule of Pledged Loans
identifying each Pledged Loan by Borrower's loan number, Mortgagor's name and
address (including the state and zip code) of the mortgaged property, whether
such Pledged Loan is secured by a first or second lien on the related Mortgaged
Property, the loan-to-value ratio, the appraised value of the Mortgaged
Property, the outstanding principal amount as of a specified date, the initial
interest rate borne by such Pledged Loan, the original principal balance
thereof, the current scheduled monthly payment of principal and interest, the
maturity of the related Pledged Note, the property type, the occupancy status,
the original term to maturity, and whether the Pledged Loan (including the
related Pledged Note) has been modified.
"Pledged Note" means the note or other evidence of
indebtedness of a Mortgagor secured by a Mortgage.
"Seller's Guide" means the underwriting and servicing
guidelines established by IMC Mortgage Company and approved by Lender, a true
and correct copy of which was previously provided to Lender by Borrower.
"Servicer" shall mean IMC Mortgage Company in its capacity as
servicer of the Pledged Loans.
"Third Person" shall mean a Person other than Borrower, Lender
or the Custodian, which Person has acquired an interest in any Pledged Loans
from Lender and continues to have an interest in such Pledged Loans.
"Trust Receipt" shall mean an instrument substantially in the
form of Exhibit C hereto.
"Wet Loan List" shall have the meaning set forth in Section
3(d) of this Agreement.
"Wet Mortgage Loan" means any residential mortgage loan
originated by Borrower in accordance with the Seller's Guide with respect to
which the related Mortgage File has not been deposited with the Custodian on or
prior to the related Advance Date.
SECTION 2. Appointment of Custodian. Lender hereby appoints
Custodian, and Custodian hereby accepts its appointment, to act as the bailee of
and agent for Lender and its successors and assigns (including any Third Person)
for the purpose of taking custody of, and certifying receipt of, Pledged Loans
and the proceeds thereof or substitutions therefor. With respect to each Pledged
Loan, Custodian's appointment as Lender's bailee and agent shall terminate upon
receipt by Lender of all amounts of principal and interest and any other amounts
due and owing to Lender by the Borrower.
3
<PAGE>
<PAGE>
SECTION 3. Delivery of Mortgage Files to Custodian.
(a) Representations of Borrower. With respect to each Advance
other than an Advance secured by a Wet Mortgage Loan, Borrower represents that
it has, prior to the pledge of any Pledged Loan to Lender pursuant to the Loan
Agreement, delivered to the Custodian those documents designated in items (1) -
(6) below (to the extent applicable to such Pledged Loans). All documents
delivered to the Custodian shall have been placed by Borrower or its
representative in an appropriate file folder, properly secured, and clearly
marked with the name of the Mortgaged Property and the loan number (the "Loan
Number").
(b) Mortgage File. By delivery of a letter of transmittal
substantially in the form of Exhibit A hereto (each, a "Letter of Transmittal"),
Borrower will from time to time certify that it has delivered and released to
the Custodian the related Mortgage Files for the Pledged Loans referred to in
such Letter of Transmittal and has in its possession the other documents with
respect to the Pledged Loans identified in the Pledged Loan Schedule attached to
the Letter of Transmittal as Schedule 1.
"Mortgage File" means the following documents (all of which
together constitute an original mortgage file):
(1) the original Pledged Note, endorsed, "Pay to the order of
________________, without recourse" and signed, by facsimile or manual
signature, in the name of Borrower by an authorized officer. If the
Pledged Note has been signed by a Person on behalf of the Mortgagor,
the original power of attorney or other instrument that authorized and
empowered such Person to sign or a copy of such power of attorney
together with an Officer's Certificate certifying that such copy
represents a true and correct copy and that such original has been duly
recorded in the appropriate records depository for the jurisdiction in
which the Mortgaged Property is located. To the extent that there is no
room on the face of the Pledged Note for endorsements, the endorsement
may be contained on an allonge, if the law by which such Pledged Note
is governed so permits. Such allonge shall be firmly affixed to the
Pledged Note so as to become a part thereof;
(2) the original of any loan agreement and guarantee(s)
executed in connection with the Pledged Note;
(3) with respect to any Pledged Loans, the original Mortgage,
with evidence of recording thereon, or, if the original Mortgage has
not yet been returned from the recording office, a copy of the original
Mortgage together with an Officer's Certificate (which may be a blanket
Officer's Certificate of Borrower covering all such Pledged Loans)
certifying that the copy is a true copy of the original of the Mortgage
which has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located,
or a copy of the Mortgage certified by the public recording office in
those instances where the original Mortgage has been lost, destroyed or
retained by the public recording office; and if the Pledged Note has
been signed by a Person on behalf of the Mortgagor, the original power
of attorney or other instrument that authorized and empowered such
Person to sign or a copy of such power
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of attorney together with an Officer's Certificate certifying that such
copy represents a true and correct copy and that such original has been
duly recorded in the appropriate records depository for the
jurisdiction in which the Mortgaged Property is located;
(4) with respect to any Pledged Loans, the original Mortgage
Assignment assigned in blank for each Pledged Loan, in form and
substance acceptable for recording (except for the name of the
assignee) and signed in the name of the last endorsee by an authorized
officer;
(5) with respect to any Pledged Loans, the originals of all
intervening assignments of mortgage, if any, with evidence of recording
thereon or copies thereof certified by the related recording office or,
if the original of any such assignment has not yet been returned from
the recording office, a copy of the original of any such assignment
without evidence of recording thereon together with an Officer's
Certificate (which may be a blanket Officer's Certificate of Borrower
covering all such Pledged Loans) certifying that the copy is a true
copy of the original of any such assignment which has been delivered by
such attorney or officer for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located,
or a copy of the intervening assignment certified by the public
recording office in those instances where the original recorded
intervening assignment has been lost, destroyed or retained by the
public recording office;
(6) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of
recording thereon or, if the original of any such agreement has not yet
been returned from the recording office, a copy of the original of any
such agreement without evidence of recording thereon together with an
Officer's Certificate (which may be a blanket Officer's Certificate of
Borrower covering all such Pledged Loans) certifying that the copy is a
true copy of the original of any such agreement which has been
delivered by such attorney or officer for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located, or a copy of such agreement certified by the public recording
office in those instances where the original recorded agreement has
been lost, destroyed or retained by the public recording office; and
(7) the original lender's ALTA Policy of Title Insurance
or an equivalent thereto.
(c) Requirements Relating to Wet Mortgage Loans. Subject to
the terms of the Loan Agreement, Borrower may pledge, as part of the Pledged
Loans securing an Advance, Wet Mortgage Loans. In connection with any pledge or
assignment of Borrower's interest in a Wet Mortgage Loan, Borrower shall, not
later than 10:00 a.m. New York City time on the date of the related Advance,
deliver to the Custodian a Letter of Transmittal duly authorized, executed and
completed and, not later than the seventh (7th) day following the date of the
related Advance, shall deposit, or cause to be deposited, with the Custodian all
documents required to be delivered pursuant to Section 3(b) for each such Wet
Mortgage Loan with a copy of the Letter of Transmittal previously delivered,
which information shall also be delivered on
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computer readable magnetic diskette or tape. The Custodian shall (i) deliver to
Lender, not later than 10:00 a.m. New York City time on the related Advance
Date, a detailed list of all Wet Mortgage Loans in a form acceptable to Lender
(each, a "Wet Loan List"); and (ii) notify Lender not later than 4:00 p.m. New
York City time on the seventh (7th) day following the related Advance Date if
any documents described in Section 3(b) have not been received with respect to
any Wet Mortgage Loan. Borrower hereby represents, warrants and covenants to
Lender and the Custodian that it and any person or entity acting on its behalf
that has possession of any of the documents described in this Section 3(c) for
such Wet Mortgage Loan prior to the deposit thereof with the Custodian will hold
such documents in trust for the Lender.
SECTION 4. The Custodian's Receipt, Examination and
Certification of Mortgage Files and Issuance of
Trust Receipt.
(a) The Custodian shall examine the documents received by it
and confirm, as of the date of the Trust Receipt, that on their faces:
(1) the Pledged Note and Mortgage each bears an original
signature or signatures purporting to be the signature or signatures of
the Person or Persons named as the maker and mortgagor or grantor or,
in the case of copies of the Mortgage permitted under Section 3, that
such copies bear a reproduction of such signature or signatures;
(2) (a) the principal amount of the indebtedness secured by
the Mortgage is identical to the original principal amount of the
Pledged Note and the original principal amount on the Pledged Loan
Schedule; (b) the Pledged Note term is the same as set forth on the
Pledged Loan Schedule; and (c) the Pledged Note coupon is the same as
set forth on the Pledged Loan Schedule;
(3) the Pledged Note bears original endorsements, by either
manual or facsimile signature, which complete the chain of ownership
from the original holder or payee to the owner of the related Trust
Receipt;
(4) the original of the Mortgage Assignment and any
intervening mortgage assignment bears the original signature purporting
to be the signature of the named mortgagee or beneficiary (and any
other necessary party, including subsequent assignors) or in the case
of copies permitted under Section 3, that such copies bear a
reproduction of such signature or signatures and that the Mortgage
Assignment and any intervening mortgage assignment complete the chain
of title from the originator to Borrower and from Borrower in blank;
(5) the power of attorney (if any), as specified in Sections
3(b)(1) and 3(b)(3), (A) bears an original signature purporting to be
the signature of the maker of the Pledged Note and the mortgagor or
grantor of the Mortgage and (B) bears evidence that such power of
attorney was recorded in the appropriate records depository for the
jurisdiction where the Mortgaged Property is located or, in case of
copies permitted under Sections
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3(b)(1) and (2)(b)(3), that such copies bear a reproduction of such
signatures and such evidence of recordation; and
(6) if a Pledged Note or a Mortgage was executed by an
attorney-in-fact, the power of attorney specified in Sections 3(b)(1)
and 3(b)(3) is included and conforms to the requirements of such
section.
(b) If the Custodian has determined that all the required
documents are included in the Mortgage Files delivered to it and that such
related documents on their faces satisfy the requirements enumerated in Sections
3(a)(1) through 3(a)(6) hereof, the Custodian shall (i) sign a copy of the
related Letter of Transmittal and return the Letter of Transmittal to Borrower,
and (ii) remit to Lender or its designee a Trust Receipt, not later than 2:00
p.m. (New York City time) on the date of the related Advance, with respect to
such Mortgage Files signed by the Custodian. If upon examination of the
documents included in any Mortgage File, the Custodian determines that such
documents do not satisfy the above requirements, or is unable to confirm that
such documents satisfy such requirements, the Custodian shall mark such Pledged
Loan as an exception on its Trust Receipt. Except as set forth in the preceding
sentence, the Trust Receipt of the Custodian with respect to each Mortgage File
shall be deemed to include a certification that the documents reviewed by the
Custodian appear regular on their face and relate to the Pledged Loan described
in the Mortgage File and are in the possession and control of the Custodian.
(c) Under no circumstances shall the Custodian be obligated to
verify the authenticity of any signature on any of the documents received or
examined by it in connection with this Agreement or the authority or capacity of
any person to execute or issue any such document, nor shall the Custodian be
responsible for the value, form, substance, validity, perfection, priority,
effectiveness or enforceability of any of such documents.
(d) Any provision of this Agreement to the contrary
notwithstanding, Borrower shall notify the Custodian of the need to examine a
Mortgage File and deliver a related Trust Receipt not less than forty-eight (48)
hours prior to the date on which such Trust Receipt is required to be delivered.
(e) With respect to any Trust Receipt delivered to Lender.
hereunder, the Custodian shall revise its own internal books and records from
time to time to reflect its receipt or release of Pledged Loans under the terms
of this Agreement so that the applicable Pledged Loan Schedule for any such
Trust Receipt shall always accurately reflect the Pledged Loans held by the
Custodian under this Agreement.
SECTION 5. Possession of Mortgage Files.
(a) Possession of Mortgage Files on Behalf of Lender. The
Custodian shall segregate and retain possession and custody of the Mortgage
Files for the exclusive use and benefit of Lender and as agent and bailee of and
custodian for Lender for all purposes until otherwise notified by Lender
pursuant to subsection (b) hereof. The Custodian shall also make appropriate
notations in the Custodian's books and records reflecting that the Mortgage
Files are
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owned by Lender unless otherwise notified by Lender pursuant to subsection (b)
hereof. The Custodian shall not release any portion of the Mortgage Files to
Borrower or to any other party without the prior written authorization of the
registered holder of the Trust Receipt.
(b) Possession of Mortgage Files on Behalf of Assignee. Lender
hereby notifies Custodian that Lender shall assign, as of each Advance Date, all
of its right, title and interest in and to all Pledged Loans pledged by Borrower
pursuant to the Loan Agreement and all rights of Lender under the Loan Agreement
(and this Agreement) in respect of such Pledged Loans represented thereby to
Assignee. Borrower hereby irrevocably consents to such assignment. Assignment by
Lender of the Pledged Loans as provided in this Section 5(b) shall not release
Lender from its obligations otherwise under this Agreement. Lender's agreements
with each Assignee will specify that the Assignee cannot issue instructions
regarding the Pledged Loans or Mortgage Files unless Lender has defaulted on
Lender's obligations to such Assignee. Accordingly, the Custodian may not act on
requests from a Assignee to withdraw or otherwise dispose of Pledged Loans
unless the Assignee delivers to the Custodian an executed Notice of Default
Certificate in the form of Exhibit E hereto. The Custodian shall be entitled to
presume conclusively that the Notice of Default Certificate is properly executed
and that when delivered to the Custodian an Event of Default exists under
Lender's agreement with its Assignee.
(c) Possession of Mortgage Files on Behalf of Third Persons.
The Custodian acknowledges that Lender may transfer its interest in the Pledged
Loans to a Third Person. Upon receipt of written notice from Lender,
substantially in the form of Exhibit B hereto, that Lender has transferred its
interest in the Pledged Loans identified on a schedule to such notice (the
"Notice Loan Schedule") to a Third Person together with the Trust Receipt for
amendment of the Schedule attached thereto, the Custodian will promptly issue a
Trust Receipt to such Third Person and shall issue an amended Trust Receipt to
Lender, each of which will reflect the transfer of Lender's interest in certain
Pledged Loans to such Third Person. The notice sent by Lender to the Custodian
shall be in substantially the form of Exhibit B hereto and shall (i) specify the
name of the Third Person, (ii) specify the address of the Third Person, which
may be an address in care of Lender and (iii) have attached the Notice Loan
Schedule. Upon receipt of any such notice from Lender, the Custodian shall (a)
segregate and retain possession and custody of the Mortgage Files with respect
to the Pledged Loans in the Notice Loan Schedule as agent and bailee of and
custodian for such Third Person, and (b) make appropriate notations in the
Custodian's books and records reflecting that the Mortgage Files identified in
the Notice Loan Schedule are owned by such Third Person. The Custodian shall
segregate and maintain continuous custody of all Mortgage Files for the benefit
of the Person to whom it has issued a Trust Receipt.
(d) Aging Reports. Custodian shall promptly notify Lender if
any Pledged Loan has been subject to this Agreement for more than 210 days. In
addition, Custodian shall provide to Lender, not later than the 5th Business Day
of each month during the term of this Agreement, with a detailed listing of all
Pledged Loans relating to any outstanding Trust Receipt, which report shall
identify (i) the origination date of each such Pledged Loan and (ii) the date
that the Mortgage File relating to such Pledged Loan was originally certified by
Custodian and pledged to Lender.
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(e) Upon surrender of the Trust Receipt by Lender to the
Custodian, Lender may issue instructions regarding the Pledged Loans designated
in the applicable Trust Receipt, including instructions to withdraw Pledged
Loans.
(f) In the event a Trust Receipt is lost, destroyed or
otherwise unavailable for surrender to the Custodian, Lender will present to the
Custodian documentation in the form attached as Exhibit F or Exhibit G hereto.
Upon receipt by the Custodian of such documentation, Lender will have the right
to issue instructions regarding the Pledged Loans covered by a Trust Receipt
without surrender of the related Trust Receipt.
(g) The Custodian understands that Lender may need to examine
Pledged Loans subject to a Trust Receipt on a periodic basis. Such examination
shall take place on the premises of the Custodian. Lender will give the
Custodian two (2) Business Days' notice before Lender makes an examination.
Lender's agreements with each Assignee will grant Lender the right to make such
examinations.
(h) The Custodian shall cause to be kept at its corporate
trust office records in the form, scope and substance of a register (the
"Custodial Register") in which, subject to such reasonable regulations as it may
prescribe, the Custodian shall reflect the ownership of Pledged Loans as
confirmed by Trust Receipts as herein provided. The Custodial Register shall be
deemed to contain proprietary information and only Custodian and Lender shall
have access to such information.
SECTION 6. Release of Custodian's Mortgage Files for
Servicing. From time to time and as appropriate for the servicing of any of the
Pledged Loans by Borrower, the Custodian is hereby authorized, upon written
request and receipt of Borrower and consent and acknowledgement of Lender (to
the extent required by Exhibit H) in the form of Exhibit H, to release to
Borrower or its designee the related Mortgage File, or any documents contained
therein, set forth in such receipt to Borrower. All documents so released to
Borrower or its designee shall be held by it in trust for the benefit of Lender
and Third Person from time to time. Borrower or its designee shall return to the
Custodian the Mortgage File or such documents when Borrower's need therefor in
connection with servicing no longer exists but in no event later than ten (10)
Business Days after their release by the Custodian as provided herein.
Upon the payment in full of any Pledged Loan by the mortgagor,
and upon receipt by the Custodian of Borrower's request for release and
acknowledgement by Lender in the form of Exhibit H, the Custodian shall promptly
release the related Mortgage File to Borrower.
Borrower agrees that, at the time any request for release of
Mortgage Files is made to the Custodian under this Agreement, Lender shall be so
notified and a copy of any written request for release shall be furnished to
Lender. Upon its receipt of any released Mortgage Files, Borrower shall so
notify Lender.
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SECTION 7. Review and Deposit of Additional Pledged Loans.
(a) If, pursuant to the Loan Agreement, Borrower is required
to deliver additional Pledged Loans to the Custodian to cure a Margin Deficit or
if Borrower and Lender agree to cause additional Pledged Loans to become subject
to the Loan Agreement ("Additional Pledged Loans"), the Custodian shall retain
possession and custody of the Mortgage Files relating thereto pursuant to
Section 5 hereof and, upon receipt and review thereof, shall transmit to Lender
a Trust Receipt that shall supersede any Trust Receipt bearing an earlier date
and have attached thereto a complete Pledged Loan Schedule revised so as to give
effect to the Advance contemplated by such Trust Receipt.
(b) Two (2) days prior to the delivery of any Additional
Pledged Loans, Borrower will advise the Custodian whether the Custodian will be
required to review any Additional Pledged Loans Borrower undertakes to use its
best efforts to make available for review any such Additional Pledged Loans as
soon as is reasonably possible. Upon receipt thereof, the Custodian shall
perform its review of the Mortgage Files relating to any Additional Pledged
Loans in the manner contemplated by Section 5 hereof.
(c) Borrower covenants and agrees to provide to the Custodian
at the time Borrower delivers any Additional Pledged Loans under this Agreement,
and at the time any Pledged Loans are transferred to Borrower pursuant to
Section 5(c) hereof, a revised Pledged Loan Schedule reflecting current
information with respect to all Pledged Loans subject to the applicable Trust
Receipt, after giving effect to the related delivery or transfer.
SECTION 8. Waiver by the Custodian. Notwithstanding any other
provisions of this Agreement, the Custodian shall not at any time exercise or
seek to enforce any claim, right or remedy, including any statutory or common
law rights of set-off, if any, that the Custodian might otherwise have against
all or any part of a Mortgage File or the proceeds thereof. The Custodian
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of a security interest or otherwise, in
any Pledged Loan.
SECTION 9. Right of Inspection by Lender and Third Person.
Upon reasonable notice to the Custodian (which in no event shall be less than
two (2) Business Days notice), the Person or Persons for whom the Custodian is
acting as custodian, or their duly authorized representatives, may at any time,
during ordinary business hours, inspect and examine the Mortgage Files in the
possession and custody of the Custodian at such place or places where such
Mortgage Files are deposited.
SECTION 10. Custodian's Fees and Expenses. The Custodian
hereby acknowledges that Borrower has agreed to pay all fees due and owing to,
and except as otherwise provided herein, any expenses incurred by the Custodian
under this Agreement. The fees due to the Custodian for its services hereunder
shall be as set forth in a separate letter agreement between the Custodian and
Borrower. In addition to the fees referred to in the two foregoing sentences,
Borrower has agreed to pay all out-of-pocket expenses incurred by the Custodian
in connection with the review of each Mortgage File by it or its agent and its
issuance of a Trust Receipt relating thereto. Neither Lender nor any Third
Person shall have any liability
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or obligation to pay any such fees or expenses, and the duties of the Custodian
hereunder shall be independent of Borrower's performance of its obligations to
the Custodian in respect of such fees and expenses.
SECTION 11. Termination of Agreement. This Agreement shall
become effective on and as of the date hereof and shall terminate upon the
earlier of (i) the Custodian's receipt of written Notice of Termination signed
by the Person or all of the Persons to whom the Custodian has issued Trust
Receipts and on whose behalf the Custodian is acting as agent, bailee and
custodian, (ii) the removal of all Mortgage Files from the possession of the
Custodian pursuant to the instructions of the Person or Persons entitled to
request such removal pursuant to this Agreement. The Custodian shall be entitled
to rely, and shall be protected in relying, on any such Notice of Termination
delivered to it by such Person or Persons and (iii) if the Advance relating to
any Pledged Loan is repaid by Borrower to Lender, the receipt by Lender of
principal and interest and any other amounts due and owing to Lender by the
Borrower under the Loan Agreement. If this Agreement terminates with respect to
any Pledged Loan by operation of clause (i) above, the Custodian shall deliver
the related Mortgage File then subject to this Agreement to the Person indicated
in the Notice of Termination. If the Advance relating to any Pledged Loan is
repaid by Borrower to Lender pursuant to clause (iii) above, then Lender shall
execute and deliver to the Custodian a document in substantially the form of
Exhibit I which confirms the receipt of principal and interest and any other
amounts due and owing to Lender relating to the Pledged Loan and the termination
and release of all of Lender's right, title and interest in such Pledged Loan,
and the Custodian upon receipt of such document shall deliver the related
Mortgage File for such Pledged Loan to Borrower or such other Person as Borrower
so directs. Upon such termination the Custodian shall deliver all Mortgage Files
then subject to this Agreement to the Person indicated in such Notice of
Termination or if no such Person is indicated, then to the Person or Persons to
whom the Custodian has issued Trust Receipts and for whom the Custodian is
acting on such date and the Custodian shall endorse the Pledged Notes without
recourse, representation and warranties and execute mortgage assignments
pursuant to any instruction by the Person on whose behalf the Custodian is
acting as agent and bailee pursuant to this Agreement.
SECTION 12. Resignation and Removal of Custodian.
(a) Resignation. The Custodian shall have the right, with or
without cause, to resign as the Custodian under this Agreement upon sixty (60)
days' prior written notice to Borrower, Lender and, to the extent of its
interest, any Third Person. Following any such resignation, the Custodian shall
continue to act as the "Custodian" under this Agreement until it delivers the
Mortgage Files to a duly appointed successor Custodian as provided in (c) below,
if any, or to any designee specified by Lender or any Third Person, as
applicable.
(b) Removal. Lender and, to the extent of its interest, any
Third Person may remove and discharge the Custodian from the performance of its
duties under this Agreement, by providing thirty (30) days' written notice to
the Custodian, signed jointly by Lender and a majority in interest of
(calculated with reference to the face value of the Pledged Loans) any Third
Person or Persons with any interest in the Pledged Loans, as evidenced by the
holding of a Trust Receipt, with a copy to Borrower. Following any such removal,
the Custodian shall
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continue to act as the "Custodian" under this Agreement until it delivers the
Mortgage Files to a duly appointed successor Custodian as provided in (c) below,
if any, or to any designee specified by Lender or any Third Person, as
applicable.
(c) Appointment of Successor Custodian; Transfer of Pledged
Loans. Upon resignation or removal of the Custodian, Lender and, to the extent
of its interest and if permitted by Section 5 hereof, any Third Person shall
have 60 days in which to appoint and designate a successor to take possession of
their respective Mortgage Files or select one or more designees to take
possession thereof. Upon receipt of written direction regarding the foregoing
from Lender and any Third Person with respect to the Pledged Loans in which they
have an interest, as applicable, the Custodian shall deliver all Mortgage Files
to the person so designated within 10 days following delivery to the Custodian
of such written notice. If a successor Custodian is appointed, the Custodian
shall deliver the Mortgage Files in accordance with the written instructions of
Lender and a majority in interest of (calculated with reference to the face
value of the Pledged Loans) Third Person having interests in the Pledged Loans
to the extent such Third Person are permitted to take action with respect
thereto under Section 5 hereof setting forth the name and address of the
successor Custodian. If Lender and, to the extent of its interest, any such
Third Person, fail to jointly designate a successor Custodian or specify one or
more designees within such 60-day period, then the Custodian shall deliver
possession and custody to Lender and, if otherwise permitted under Section 4
hereof, any Third Person, of their respective Mortgage Files, as applicable, at
the address specified in the Custodian's records. The Custodian shall, as part
of the transfer of the Mortgage Files, deliver the Mortgage Assignment for each
Pledged Loan in recordable form and shall endorse the Pledged Note without
recourse, representation and warranties in accordance with Lender's or the
applicable Third Person's instructions. Any successor Custodian hereunder shall
be a financial institution whose deposits are insured by FDIC, have a net worth
of not less than $10,000,000 and shall have secure vault storage facilities
located in the State of New York or such other State as Lender and Borrower may
agree, in which the Mortgage Files are to be retained.
SECTION 13. Limitation on Obligations of the Custodian. The
Custodian shall have no duties or obligations other than those specifically set
forth herein, and no further duties or obligations shall arise by implication or
otherwise. The Custodian agrees to use its best judgment and good faith in the
performance of such obligations and duties and shall incur no liability to
Borrower for its acts or omissions hereunder, except as may result from its
gross negligence or willful misconduct. The Custodian shall also be entitled to
rely (and shall be protected in relying) upon written advice of its legal
counsel and to rely upon any written notice, document, correspondence, request
or directive received by it from Lender, any Third Person (if applicable), or
Borrower, as the case may be, that the Custodian believes to be genuine and to
have been signed or presented by the proper and duly authorized officer or
representative thereof, and shall not be obligated to inquire as to the
authority or power of any Person so executing or presenting such documents or as
to the truthfulness of any statements set forth therein. No provision of this
Agreement shall require the Custodian to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties hereunder
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity is not reasonably assured to it. Borrower agrees to
indemnify, defend and hold the Custodian harmless from and against any claim,
legal action, liability or loss that is initiated against or incurred by
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the Custodian, including court costs and reasonable attorney's fees and
disbursements, and all of the Custodian's other cost, damage or expense incurred
in connection with the Custodian's performance of its duties under this
Agreement, but excluding any such claim, legal action, liability, loss, cost,
damage or expense caused by Custodian's gross negligence or willful misconduct.
The Custodian shall at its own expense maintain at all times
during the existence of this Agreement and keep in full force and effect (a)
fidelity insurance, (b) theft and loss of documents insurance, (c) forgery
insurance, and (d) errors and omissions insurance. All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks which act as the Custodian in
similar Advances. The Custodian shall, upon written request, provide to
Borrower, or to any other Person as Borrower shall direct, a certificate signed
by an authorized officer of the Custodian certifying that the foregoing
insurance policies are in full force and effect. The Custodian shall use its
best efforts to ensure that such insurance shall not terminate prior to receipt
by Lender by registered mail of 30 days' prior written notice thereof.
SECTION 14. Notices. Any notice, demand or consent required or
permitted by this Agreement shall be in writing and shall be effective and
deemed delivered only when received by the party to which it is sent. Any such
notice, demand or consent shall be delivered in person or transmitted by a
recognized private courier service or deposited with the United States Postal
Service, certified mail, postage prepaid, return receipt requested, addressed as
follows, unless such address is changed by written notice hereunder:
If to Borrower:
IMC Mortgage Company
3450 Bushwood Park Drive, Suite 250
Tampa Bay, Florida 33618
Attention: Stuart Marvin, CPA & Chief Financial Officer
Telephone: (813) 915-2548
Telecopy: (813) 933-6023
If to Lender:
Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: George Mangiaracina, First Vice President
Telephone: (212) 713-3734
Telecopy: (212) 265-3881
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If to the Custodian:
First National Bank of Boston
100 Federal Street
Mail Location: 01-1B-06
Boston, Massachusetts 02110
Attention: David L. Hall, Senior Manager, Vault Services
Telephone:
Telecopy:
SECTION 15. No Assignment or Delegation by the Custodian. The
Custodian shall not assign, transfer, pledge or grant a security interest in any
of its rights, benefits or privileges hereunder nor delegate or appoint any
other person to perform or carry out any of its duties, responsibilities or
obligations under this Agreement; any act or instrument purporting to effect any
such assignment, transfer, pledge, grant, delegation or appointment shall be
void.
SECTION 16. Controlling Law. This Agreement and all questions
relating to validity, interpretation, performance and enforcement shall be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of New York, without regard to any New York or other
conflict-of-law provisions.
SECTION 17. Agreement for the Exclusive Benefit of Parties.
This Agreement is for the exclusive benefit of the parties hereto, and their
respective successors and permitted assigns, and shall not be deemed to create
or confer any legal or equitable right, remedy or claim upon any other person
whatsoever except a Third Person to the extent rights are explicitly conferred
on any one or more Third Person pursuant to this Agreement.
SECTION 18. Entire Agreement. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof, including any prior
custody agreements. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing signed by Lender, Borrower and the Custodian.
SECTION 19. Exhibits. All Exhibits referred to herein or
attached hereto are hereby incorporated by reference into, and made a part of,
this Agreement.
SECTION 20. Indulgences, Not Waivers. Neither the failure nor
any delay on the part of a party hereto to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege
14
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with respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the parties asserted to have
granted such waiver.
SECTION 21. Titles Not to Affect Interpretation. The titles of
sections and subsections contained in this Agreement are for convenience only,
and they neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
SECTION 22. Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
SECTION 23. Representations and Warranties of the Custodian.
The Custodian represents, warrants to, and covenants with Lender that on the
date hereof, and on the date of the issuance of any Trust Receipt by the
Custodian:
(1) The Custodian is (i) a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and (ii) duly qualified and in good standing
and in possession of all requisite authority, power, licenses, permits
and franchises in order to execute, deliver and comply with its
obligations under the terms of this Agreement;
(2) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action and the
execution and delivery of this Agreement by the Custodian in the manner
contemplated herein and the performance of and compliance with the
terms hereof by it will not (i) violate, contravene or create a default
under any applicable laws, licenses or permits to the best of its
knowledge, or (ii) violate, contravene or create a default under any
charter document or bylaw of the Custodian or to the best of the
Custodian's knowledge any contract, agreement, or instrument to which
the Custodian or by which any of its property may be bound and will not
result in the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its property;
(3) The execution and delivery of this Agreement by the
Custodian and the performance of and compliance with its obligations
and covenants hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required, it
has been obtained;
(4) This Agreement, and the original Trust Receipt issued
hereunder, when executed and delivered by the Custodian will constitute
valid, legal and binding obligations of the Custodian, enforceable
against the Custodian in accordance with their respective terms, except
as the enforcement thereof may be limited by applicable debtor relief
laws and that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or at law;
15
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(5) Custodian does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(6) To Custodian's knowledge after due inquiry, there is no
litigation pending or threatened which, if determined adversely to
Custodian, would adversely affect the . execution, delivery or
enforceability of this Agreement, or any of the duties or obligations
of Custodian thereunder, or which would have a material adverse effect
on the financial condition of Custodian;
(7) Upon written request of Lender or any Third Person, and
assurance reasonably satisfactory to Custodian that its costs of doing
so will be timely reimbursed and that Custodian will receive reasonable
compensation (in addition to the compensation provided for elsewhere in
this Agreement) for doing so, Custodian shall take such steps as may be
reasonably requested by Lender or any Third Person (consistent with
Custodian's undertakings hereunder) to protect or maintain any interest
in any real property securing the Pledged Loan owned by such owner and
any insurance applicable thereto.
SECTION 24. Counterparts. For the purpose of facilitating the
execution of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterpart shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
SECTION 25. Additional Borrowers. At the request of Borrowers
and upon the prior written consent of Lender, any affiliate of IMC Mortgage
Company may be added as a Borrower under this Custody Agreement by execution and
delivery to the Custodian of a Borrower Addition Agreement in the form of
Exhibit J hereto.
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IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date set forth above.
IMC MORTGAGE COMPANY
By:_____________________________________
Name:
Title:
IMC CORPORATION OF AMERICA
By:_____________________________________
Name:
Title:
INDUSTRY MORTGAGE COMPANY, L.P.
By:_____________________________________
Name:
Title:
IMC INVESTMENT CORP.
By:_____________________________________
Name:
Title:
COREWEST BANC
By:_____________________________________
Name:
Title:
17
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FIRST NATIONAL BANK OF BOSTON
as Custodian
By:_____________________________________
Name:
Title:
PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:_____________________________________
Name:
Title:
18
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<PAGE>
EXHIBIT A
LETTER OF TRANSMITTAL
To: [Custodian] From: [Borrower]
[Address] [Address]
Pursuant to the Custody Agreement dated as of ___________,
199_ (the "Custody Agreement") among _____________________ (the "Custodian),
_________________________ ("Borrower"), and Paine Webber Real Estate Securities
Inc., Borrower hereby delivers to you (i) the documents described below in
connection with the Pledged Loans identified on the attached schedule and (ii)
an updated Pledged Loan Schedule identifying each Pledged Loan in your custody
(including the Pledged Loans referred to in clause (i) above).
We understand that the list set forth below indicates in
summary fashion the materials for transmittal; it is not intended to describe
fully all the required characteristics of each item. We further understand that
each item sent to the Custodian must comply with the applicable requirements of
the Custody Agreement, and that all required documents must be delivered
together before the Custodian will accept the Pledged Loans.
[With respect to each of the "Wet Mortgage Loans" referred to
in clause (i) above, Borrower shall deliver, or cause to be delivered, to the
Custodian by not later than the 7th day after the date hereof, the following
documents:]
[With respect to each of the Pledged Loans referred to in
clause (i) above, Borrower has delivered, to the extent required by the Custody
Agreement, the following documents:]
Section 2
(1) Letter of Transmittal (original and one copy)
(2) Original Pledged Note (endorsed in blank), including all intervening
endorsements
Power of Attorney (if applicable)
(3) Original of any loan agreement and guarantee executed in connection
with the Pledged Notes, if applicable
(4) Mortgage
Original, or
Conformed Copy, together with the appropriate certificate
(5) Assignment of Mortgage in blank
original, or
Conformed Copy, together with the appropriate certificate
(6) Intervening Mortgage Assignment, if any
original, or
Conformed Copy, together with the appropriate certificate
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(7) originals of all assumption, modification, consolidation or extension
agreements
(8) other.
Submitted The Custodian acknowledges receipt of the
By:____________________ documents referred to and agrees to hold and retain
possession thereof pursuant to the terms of the
Date:__________________ Custody Agreement.
Telephone Number:______ ______________, as Custodian
By:
Name:
Title:
A-2
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<PAGE>
EXHIBIT B
NOTICE TO THE CUSTODIAN
TO: _____________________, as Custodian
FROM: Paine Webber Real Estate Securities Inc.
DATE: ___________________________
Pursuant to the Custody Agreement dated as of ___________,
199_, among _________________________, Paine Webber Real Estate Securities Inc.
and _____________________, as Custodian ("Custody Agreement"), the undersigned
hereby notifies you that it has transferred its interest in the Mortgage Files
with respect to the Pledged Loans identified in the mortgage loan schedule
attached hereto (the "Notice Loan Schedule") to [TRANSFEREE NAME AND ADDRESS].
Included with this notice is the original Trust Receipt for
amendment of the Pledged Loan Schedule attached thereto. Capitalized terms used
herein without definition are as defined in the Custody Agreement.
PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
[Name of transferee] hereby acknowledges
that (i) the Pledged Loans listed on the
Notice Loan Schedule are being held for
it by the Custodian pursuant to the
terms of the Custody Agreement, (ii) it
agrees to be bound by the Custody
Agreement, (iii) the Custodian shall not
comply with the request of a Third
Person to deliver Mortgage Files unless
such Third Person has delivered to the
Custodian an executed Notice of Default
Certificate and (iv) it is responsible
for payment of any fees and expenses of
the Custodian
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incurred in connection with the issuance
of periodic reports to it or in
complying with its requests.
[NAME OF TRANSFEREE]
By:_____________________________________
Name:___________________________________
Title:__________________________________
cc: [Borrower]
B-2
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EXHIBIT C
TRUST RECEIPT
[Date]
[TO BE ADDRESSED TO THE REGISTERED HOLDER]
Re: Custody Agreement dated as of ___________, 199_, among
____________________, Paine Webber Real Estate Securities Inc.
and_________________________, as Custodian
Gentlemen:
In accordance with the provisions of Paragraph 4 of the
above-referenced Custody Agreement (the "Custody Agreement"), the undersigned,
as Custodian, hereby certifies that as to each Pledged Loan described in the
Pledged Loan Schedule, a copy of which is attached hereto, it has reviewed the
Mortgage File and has determined that, except as set forth on the Exception
Report attached hereto, (i) all documents required to be delivered to it
pursuant to the Custody Agreement are in its possession, (ii) such documents
have been reviewed by it and appear regular on their face and relate to such
Pledged Loan, and (iii) based on its examination of the foregoing documents,
such documents on their face satisfy the requirements set forth in Sections
3(a)(1) through 3(a)(6) of the Custody Agreement.
The Custodian hereby confirms that it is holding each such
Mortgage File as agent and bailee of and custodian for and for the exclusive use
and benefit of Paine Webber Real Estate Securities Inc. ("PWRES") or its
transferee pursuant to the terms of the Custody Agreement.
This Trust Receipt is not a negotiable instrument. PWRES may,
however, transfer this receipt by a special endorsement to one other party. The
party that takes this receipt from PWRES or its affiliate by special endorsement
may only transfer this receipt by a second endorsement in PWRES's or its
affiliate's favor.
The Custodian will accept and act on instructions with respect
to the Pledged Loans only upon surrender of this receipt at its Corporate Trust
Office, [ADDRESS], Attention: ________________. If the receipt has been endorsed
and is held by a Person other than PWRES or one of its affiliates, we will
accept and act on instructions from the endorsee only if the attached Notice of
Default Certificate is executed and delivered to us stating that an Event of
Default has occurred under a repurchase agreement relating to this Trust Receipt
between PWRES and the endorsee.
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All initially capitalized terms used herein shall have the
meanings ascribed to them in the above-referenced Custody Agreement.
_____________________, as Custodian
By:________________________________
Name:
Title:
C-2
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EXHIBIT E
NOTICE OF DEFAULT CERTIFICATE
_______________, 199_
________________________
as Custodian [ADDRESS]
Gentlemen:
As the transferee of a Trust Receipt for certain Pledged
Loans, which Trust Receipt is attached hereto, we hereby notify you that an
event of default has occurred under our agreement with and we are entitled to
receive the Pledged Loans subject to the aforementioned Trust Receipt.
[_________________________________]
By:_______________________________
Name:
Title:
Notice Received by Custodian
on [Date]:
By:__________________________________
Title:
Date:
<PAGE>
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EXHIBIT F
__________________________,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_, among
_________________________, Paine Webber Real Estate
Securities Inc. and ___________________________, as
Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of PWRES
evidencing entitlement to the Pledged Loans described on Schedule A hereto and
held by you as Custodian. You issued that receipt pursuant to our agreement with
_________________________ dated as of ________ __, 199_. The trust receipt has
been [lost, destroyed, etc.]. Every effort was made to recover the receipt;
those efforts were unsuccessful. It is, therefore, now unavailable for surrender
to you.
At the time of its [loss, destruction, etc.], the receipt was
held by us under [the terms of original issue, special . endorsement]. Since its
[issuance, endorsement] to us, we have not sold, assigned, transferred, pledged
or otherwise granted an interest in the trust receipt that has not been released
prior to the date hereof. Accordingly, this letter authorizes you to act on our
instructions regarding such Pledged Loans without surrender of the receipt to
you.
We hereby agree to indemnify and hold you harmless against any
loss, liability or expense that you may incur as a result of acting on our
instructions regarding such Pledged Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT G
______________________,
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_, among
_________________________, Paine Webber Real Estate
Securities Inc.
and ___________________________, as Custodian
Gentlemen:
On [date] you issued a trust receipt in the name of Paine
Webber Real Estate Securities Inc. evidencing entitlement to the Pledged Loans
described on Schedule __ hereto and held by you in the name of
_______________________, as Custodian. You issued that receipt pursuant to our
agreement with _________________________ dated as of ___________, 1997. The
trust receipt has been [lost, destroyed, etc.]. Every effort was made to recover
the receipt; those efforts were unsuccessful. It is, therefore, now unavailable
for surrender to you.
At the time of its [loss, destruction, etc.], the receipt was
held by [name of transferee] under a special endorsement by us. We have attached
to this letter a special endorsement, from [name of transferee] conveying to us
its interest in the trust receipt and authorizing us to issue instructions
regarding the Pledged Loans subject thereto without surrender of the receipt.
[name of transferee] has represented to us that it has not sold, assigned,
transferred, pledged or otherwise granted an interest in the trust receipt to
any party other than PWRES. Accordingly, this letter authorizes you to act on
our instructions regarding such Pledged Loans without surrender of the receipt
to you.
We hereby agree to indemnify and hold you harmless against any
loss, liability or expense that you may incur as a result of acting on our
instructions regarding such Pledged Loans without our surrender of the receipt
to you, excluding, however, any such loss, liability or expense caused by your
gross negligence or willful misconduct.
If the trust receipt is ever recovered by us, we will immediately
notify you, cancel the receipt and surrender the receipt to you.
PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:________________________________
Name:
Title:
<PAGE>
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EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: _______________________
as Custodian
[ADDRESS]
Re: Custody Agreement dated as of ___________, 199_,
among _________________,
Paine Webber Real Estate Securities Inc.
and _____________________, as
Custodian____________________________________________
In connection with the administration of Pledged Loans held by
you as Custodian for Lender and Third Person from time to time pursuant to the
above-referenced Custodial Agreement, we hereby request the release, and
acknowledge receipt, of the [specify documents] [related Mortgage Files] for the
Pledged Loans described in the attached Pledged Loan Schedule, for the reason
indicated.
Mortgagor's Name Address and Zip Code:
Pledged Loan Number:
Reason for Requesting Documents (check one):
______1. Pledged Loan paid in full. (The Custodian shall delete the
Pledged Loan from the applicable Pledged Loan Schedule and
send the amended Pledged Loan Schedule to Lender and any
related Third Person.)
______2. Payment of Advance of Pledged Loan pursuant to the Loan
Agreement. (The Custodian shall delete the Pledged Loan from
the applicable Pledged Loan Schedule and send the amended
Pledged Loan Schedule to Lender and any related Third Person.)
______3. Pledged Loan in foreclosure or otherwise released for
servicing.
If box 1 or 2 above is checked, and if all or part of the
Mortgage Files were previously released to IMC Mortgage Company please release
to IMC Mortgage Company its previous request and receipt on file with you, as
well as any additional documents in your possession relating to the specified
Pledged Loan.
If box 3 above is checked, upon the return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
IMC Mortgage Company understands and agrees that all documents
delivered to IMC Mortgage Company or its subservicer pursuant to this request
for release (other than with
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respect to Items 1 or 2 shall be returned to the Custodian no later than
twenty-one (21) days from the date hereof. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Custody
Agreement.
[BORROWER]
By:_____________________________
Name:___________________________
Title:__________________________
Date:___________________________
Acknowledged and Agreed:
PAINE WEBBER REAL ESTATE SECURITIES INC.
(Required if documentation relating to more than three (3) Mortgage Files are
outstanding or the release of a Pledged Note or Mortgage Assignment is
requested.)
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
Acknowledgement of documents returned to the Custodian, for the reasons listed
in item 3:
Custodian
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
H-2
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EXHIBIT I
CONFIRMATION OF REPAYMENT AND RECEIPT
To: _____________________, as Custodian
[Borrower]
Date: __________ ___, 199_
Re: Custody Agreement, dated as of ___________, 199_, among Paine Webber
Real Estate Securities Inc. (the "Lender"), _________________________
(the "Borrower") and _________________, as custodian thereunder
Lender hereby:
(a) Acknowledges receipt of $____________in immediately available funds
on behalf of Borrower;
(b) Acknowledges that the funds referred to in clause (a) above
constitute sufficient consideration under the terms of the Loan Agreement, dated
as of ___________, 1997 among Lender and Borrower, for the release by Lender of
its interest in the Pledged Loans listed on Schedule A hereto;
(c) Confirms that it has released to Borrower all of its right, title
and interest in and to the Pledged Loans listed on Schedule A hereto; and
(d) Confirms that it has not granted or created any interest in the
Pledged Loans listed on Schedule A hereto other than interests that have been
fully discharged or satisfied on or prior to the date hereof.
Dated: ________________ ___, 199_ PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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EXHIBIT J
BORROWER ADDITION AGREEMENT
Reference is made to the Custody Agreement dated as of February 28,
1997 (as amended from time, the "Custody Agreement") by and among IMC
CORPORATION OF AMERICA, INDUSTRY MORTGAGE COMPANY, L.P., IMC INVESTMENT CORP.
and COREWEST BANC, INC. (jointly and severally, each a "Borrower" and
collectively "Borrowers"), PAINE WEBBER REAL ESTATE SECURITIES INC. ("Lender"),
such other "Borrowers" (as defined therein) which may from time to time become a
party thereto, and FIRST NATIONAL BANK OF BOSTON (the "Custodian"). Capitalized
terms not defined herein have the respective meanings assigned thereto in the
Custody Agreement.
By their signatures below, _____________, Lender, Borrower and the
Custodian agree that effective as of ___________ __, 199_, ______________ will
become a "Borrower" under the Custody Agreement with all the rights and
obligations of a Borrower thereunder on and after such date. By its signature
below, the Custodian agrees to provide written notice thereof to each other
Borrower under the Custody Agreement that effective as of the above-referenced
date ______________________ has complied with the provisions of Section __ of
the Custody Agreement and is a "Borrower" for all purposes thereunder.
IN WITNESS WHEREOF, the parties have signed this Borrower Addition
Agreement as of _____________ __, 1997.
IMC MORTGAGE COMPANY
By:___________________________________
Name:_________________________________
Title:________________________________
IMC CORPORATION OF AMERICA
By:___________________________________
Name:_________________________________
Title:________________________________
I-2
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INDUSTRY MORTGAGE COMPANY, L.P.
By:___________________________________
Name:
Title:
IMC INVESTMENT CORP.
By:___________________________________
Name:
Title:
COREWEST BANC, INC.
By:___________________________________
Name:
Title:
FIRST NATIONAL BANK OF BOSTON
as Custodian
By:___________________________________
Name:
Title:
PAINE WEBBER REAL ESTATE
SECURITIES INC.
By:___________________________________
Name:
Title:
I-3
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Amendment No. 4 to the registration
statement on Form S-1 (File No. 333-21823) of our report, which includes an
explanatory paragraph with respect to a change in the Company's method of
accounting for mortgage servicing rights, dated February 21, 1997 on our audit
of the consolidated financial statements of IMC Mortgage Company and
Subsidiaries. We also consent to the reference to our firm under the captions
'Summary Consolidated Financial Data,' 'Selected Consolidated Financial Data,'
and 'Experts.'
/S/ COOPERS & LYBRAND, L.L.P.
Tampa, Florida
April 21, 1997
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