EXHIBIT 1.1
EXHIBIT 1.1
ICIFC SECURED ASSETS CORP.
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 199__-__
Class R $__________ ____%
Class A $__________ ____%
UNDERWRITING AGREEMENT
----------------------
______________, 199_
[Underwriter]
- ------------------------
________________________
________________________
Ladies and Gentlemen:
ICIFC Secured Assets Corp., a California corporation (the "Company"),
proposes to sell to you (also referred to herein as the "Underwriter") Mortgage
Pass-Through Certificates, Series 199_-_, Class A and Class R Certificates other
than a de minimis portion thereof (collectively, the "Certificates"), having the
aggregate principal amounts and Pass-Through Rates set forth above. The
Certificates, together with the Class M and Class B Certificates of the same
series, will evidence the entire beneficial interest in the Trust Fund (as
defined in the Pooling and Servicing Agreement referred to below) consisting
primarily of a pool (the "Pool") of conventional, fixed-rate, one- to four-
family residential mortgage loans (the "Mortgage Loans") as described in the
Prospectus Supplement (as hereinafter defined) to be sold by the Company. A de
minimis portion of the Class R Certificates will not be sold hereunder and will
be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
________________________, 199_ (the "Cut-off Date") among the Company, as
seller, [ICI Funding Corporation], as master servicer ("ICIFC"), and
______________________________, as trustee (the "Trustee"). The Certificates
are described more fully in the Basic Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to you.
1. Representations Warranties and Covenants.
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1.1 The Company represents and warrants to, and agrees with you
that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-________) on
Form S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of Mortgage Pass-Through Certificates (issuable in series), including
the Certificates, which registration statement has become effective, and a copy
of which, as amended to the date hereof, has heretofore been delivered to you.
The Company proposes to file with the Commission pursuant to Rule 424(b) under
the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a supplement dated ________________. 199_ (the "Prospectus
Supplement"), to the prospectus dated ______________, 199_ (the "Basic
Prospectus"), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-________) including exhibits
thereto and any information incorporated therein by reference, as amended at the
date hereof, is hereinafter called the "Registration Statement"; and the Basic
Prospectus and the Prospectus Supplement and any information incorporated
therein by reference, together with any amendment thereof or supplement thereto
authorized by the Company on or prior to the Closing Date for use in connection
with the offering of the Certificates, are hereinafter called the "Prospectus".
Any preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 424, or prior to the effective date of the Registration
Statement pursuant to Rule 402(a), or 424(a) is hereinafter called a
"Preliminary Prospectus Supplement."
(b) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "Effective Date"), and the
Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Act and the 1933 Act
Regulations; and the Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date will not, contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto relating to the information identified
in Exhibit D (the "Excluded Information"); and provided, further, that the
Company makes no representations or warranties as to either (i) any information
in any Computational Materials or ABS Term Sheets (each as hereinafter defined)
required to be provided by the Underwriter to the Company pursuant to Section
4.2, except to the extent of any information set forth therein that constitutes
Pool Information (as defined below), or (ii) as to any information contained in
or omitted from the portions of the Prospectus identified in Exhibit E (the
"Underwriter Information"). As used herein, "Pool Information" means
information with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf of the Company to
the Underwriter in final form and set forth in the Prospectus Supplement. The
Company acknowledges that, except for any Computational Materials, the
Underwriter Information constitutes the only information furnished in writing by
you or on your behalf for use in
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connection with the preparation of the Registration Statement, any preliminary
prospectus or the Prospectus, and you confirm that the Underwriter Information
is correct.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of California and has
the requisite corporate power to own its properties and to conduct its business
as presently conducted by it.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) As of the Closing Date (as defined herein) the Certificates will
conform in all material respects to the description thereof contained in the
Prospectus and the representations and warranties of the Company in the Pooling
and Servicing Agreement will be true and correct in all material respects.
1.2 The Underwriter represents and warrants to and agrees with the Company
that:
(a) No purpose of the Underwriter relating to the purchase of any of
the Class R Certificates by the Underwriter is or will be to enable the Company
to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of the
Class R Certificates by the Underwriter will be to enable it to impede the
assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company that the Underwriter intends to
pay taxes associated with holding the Class R Certificates, as they become due,
fully understanding that it may incur tax liabilities in excess of any cash
flows generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it makes of
any of the Class R Certificates, obtain from its transferee the affidavit
required by Section 5.02(i)(B)(1) of the Pooling and Servicing Agreement, will
not consummate any such transfer if it knows or believes that any representation
contained in such affidavit is false and will provide the Trustee with the
Certificate required by Section 5.02(i)(B)(2) of the Pooling and Servicing
Agreement.
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(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or Percentage
Interests of less than $25,000 or 20%, as the case may be, the fair market value
of each such Certificate sold to any person on the date of initial sale thereof
by the Underwriter will not be less than $100,000, and (ii) with respect to each
class of Certificates to be maintained on the book-entry records of The
Depository Trust Company ("DTC"), the interest in each such class of
Certificates sold to any person on the date of initial sale thereof by the
Underwriter shall not be less than an initial Certificate Principal Balance of
$25,000.
(g) The Underwriter will use its best reasonable efforts to cause
Trepp & Co. to issue a commitment letter, prior to the Closing Date, to DTC
stating that Trepp & Co. will value the DTC Registered Certificates (hereinafter
defined) on an ongoing basis subsequent to the Closing Date.
(h) The Underwriter will have funds available at ___________________
___, in the Underwriter's account at such bank at the time all documents are
executed and the closing of the sale of the Certificates is completed, except
for the transfer of funds and the delivery of the Certificates. Such funds will
be available for immediate transfer into the account of the Company maintained
at such bank.
(i) As of the date hereof and as of the Closing Date, the Underwriter
has complied with all of its obligations hereunder including Section 4.2, and,
with respect to all Computational Materials and ABS Term Sheets provided by the
Underwriter to the Company pursuant to Section 4.2, if any, such Computational
Materials and ABS Term Sheets are accurate in all material respects when read in
conjunction with the Prospectus Supplement (taking into account the assumptions
explicitly set forth in the Computational Materials, except to the extent of any
errors therein that are caused by errors in the Pool Information). The
Computational Materials and ABS Term Sheets provided by the Underwriter to the
Company constitute a complete set of all Computational Materials and ABS Term
Sheets that are required to be filed with the Commission.
1.3 The Underwriter covenants and agrees to pay directly, or reimburse the
Company upon demand for (i) any and all taxes (including penalties and interest)
owed or asserted to be owed by the Company as a result of a claim by the
Internal Revenue Service that the transfer of any of the Class R Certificates to
the Underwriter hereunder or any transfer thereof by the Underwriter may be
disregarded for federal tax purposes and (ii) any and all losses, claims,
damages and liabilities, including attorney's fees and expenses, arising out of
any failure of the Underwriter to make payment or reimbursement in connection
with any such assertion as required in (i) above. In addition, the Underwriter
acknowledges that on the Closing Date immediately after the transactions
described herein it will be the owner of the Class R Certificates for federal
tax purposes, and the Underwriter covenants that it will not assert in any
proceeding that the transfer of the Class R Certificates from the Company to the
Underwriter should be disregarded for any purpose.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to you, and you agree to purchase from the Company, the
Certificates (other than for a de minimis portion of the Class R Certificates,
which shall be transferred by the Company to the Trustee) at a price equal to
___% of the aggregate principal balance of the Certificates as of the Closing
Date. There will be added to the purchase price of the Certificates an amount
equal to interest accrued thereon from the Cut-off Date to but not including the
Closing Date. The purchase price for the Certificates was agreed to by the
Company in reliance upon the transfer from the Company to the Underwriter of the
tax liabilities associated with the ownership of the Class R Certificates.
3. Delivery and Payment. Delivery of and payment for the Certificates
shall be made at the office of Freshman, Marantz, Orlanski, Cooper & Klein at
7:00 a.m., Los Angeles time, on ____________, 199__ or such later date as you
shall designate, which date and time may be postponed by agreement between you
and the Company (such date and time of delivery and payment for the Certificates
being herein called the "Closing Date"). Delivery of the Certificates (except
for the Class R Certificates (the "Definitive Certificates")) shall be made to
you through the Depository Trust Company ("DTC") (such Certificates, the "DTC
Registered Certificates"), and delivery of the Definitive Certificates shall be
made in registered, certified form, in each case against payment by you of the
purchase price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the Certificates for
sale to the public as set forth in the Prospectus and you agree that all such
offers and sales by you shall be made in compliance with all applicable laws and
regulations.
4.2 It is understood that you may prepare and provide to prospective
investors certain Computational Materials (as defined below) in connection with
your offering of the Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials, including the
No-Action Letter of May 20, 1994 issued by the Commission to Kidder, Peabody
Acceptance Corporation 1, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Kidder/PSA
Letter") as well as the PSA Letter referred to below. The
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Underwriter shall comply with all applicable laws and regulations in connection
with the use of ABS Term Sheets, including the No-Action Letter of February 17,
1995 issued by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the Kidder/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of the Underwriter. For
purposes hereof, "ABS Term Sheets" and "Collateral Term Sheets" as used herein
shall have the meanings given such terms in the PSA Letter but shall include
only those ABS Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of the Underwriter.
(c) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend on each page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY
[Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY OF
ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY, AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS
SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
In the case of Collateral Term Sheets, such legend shall also include the
following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [Except with respect
to the initial Collateral Term Sheet prepared by the Underwriter]
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM
SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [the
Underwriter]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes
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regarding the use of terminology and the right to determine the types
of information appearing therein. Notwithstanding the foregoing, this
subsection (c) will be satisfied if all such Computational Materials
and ABS Term Sheets bear a legend in the form set forth in Exhibit I
hereto.
(d) The Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their first
use, to the extent such forms have not previously been approved by the Company
for use by the Underwriter. The Underwriter shall provide to the Company, for
filing on Form 8-K as provided in Section 5.9, copies (in such format as
required by the Company) of all Computational Materials that are required to be
filed with the Commission pursuant to the No-Action Letters. The Underwriter
may provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational Materials and
ABS Term Sheets described in this subsection (d) must be provided to the Company
not later than 10:00 a.m. New York time one business day before filing thereof
is required pursuant to the terms of this Agreement. The Underwriter agrees
that it will not provide to any investor or prospective investor in the
Certificates any Computational Materials or ABS Term Sheets on or after the day
on which Computational Materials and ABS Term Sheets are required to be provided
to the Company pursuant to this Section 4.2(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the Company
in accordance with this Section 4.2(d) for filing pursuant to Section 5.9),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(e) All information included in the Computational Materials shall be
generated based on substantially the same methodology and assumptions that are
used to generate the information in the Prospectus Supplement as set forth
therein; provided that the Computational Materials and ABS Term Sheets or ABS
Term Sheets, as the case may be, may include information based on alternative
assumptions if specified therein. If any Computational Materials or ABS Term
Sheets that are required to be filed were based on assumptions with respect to
the Pool that differ from the final Pool Information in any material respect or
on Certificate structuring terms that were revised prior to the printing of the
Prospectus, the Underwriter shall prepare revised Computational Materials or ABS
Term Sheets, as the case may be, based on the final Pool Information and
structuring assumptions, circulate such revised Computational Materials and ABS
Term Sheets to all recipients of the preliminary versions thereof that indicated
orally to the underwriter they would purchase all or any portion of the
Certificates and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company pursuant
to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials that have been determined to contain any material error or omission.
In the event that any Computational Materials or ABS Terms Sheets are
determined, within the period which the Prospectus relating to the Certificates
is required to be delivered under
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the Act, to contain a material error or omission, the Underwriter shall prepare
a corrected version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials to all recipients of the prior
versions thereof that indicated orally to the Underwriter they would purchase
all or any portion of the Certificates and shall deliver copies of such
corrected Computational Materials and ABS Term Sheets (marked, "as corrected")
to the Company for filing with the Commission in a subsequent Form 8-K
submission (subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials, which shall be at the expense
of the Underwriter), provided that if any such letter is required to be revised
solely because of a change in the Pool Information, fifty percent of any
additional expenses for such letter resulting from the change in Pool
Information shall be paid by each of the Underwriter and the Company.
(g) If the Underwriter does not provide any Computational Materials
or ABS Term Sheets to the Company pursuant to subsection (d) above, the
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the No-Action
Letters, and the Underwriter shall provide the Company with a certification to
that effect on the Closing Date.
(h) In the event of any delay in the delivery by the underwriter to
the Company of all Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5.9, the
Company shall have the right to delay the release of the Prospectus to investors
or to the Underwriter, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply with
its agreement set forth in Section 5.9 to file the Computational Materials and
ABS Term Sheets by the time specified therein.
(i) The Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable legal
requirements of the No-Action Letters with respect to the generation and use of
Computational Materials and ABS Term Sheets in connection with the offering of
the Certificates.
4.3 You further agree that on or prior to the sixth day after the Closing
Date, you shall provide the Company with a certificate, substantially in the
form of Exhibit F attached hereto, setting forth (i) in the case of each class
of Certificates, (a) if less than 10% of the aggregate principal balance of such
class of Certificates has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit F hereto, or, (b) if 10% or
more of such class of Certificates has been sold to the public as of such date
but no single price is paid for at least 10% of the aggregate principal balance
of such class of Certificates, then the weighted average price at which the
Certificates of such class were
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sold expressed as a percentage of the principal balance of such class of
Certificates sold, or (c) the first single price at which at least 10% of the
aggregate principal balance of such class of Certificates was sold to the
public, (ii) the prepayment assumption used in pricing each class of
Certificates, and (iii) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Certificates to the extent such
information can in the good faith judgment of the Underwriter be determined by
it.
5. Agreements. The Company agrees with you that:
5.1 Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Certificates, the Company will furnish you
with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
5.3 If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which it
is necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
5.4 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.19 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.20
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company.
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5.6 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as you may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of the Certificates; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
5.7 If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse you for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by you in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you have
reasonably requested pursuant to Section 5.6 above and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
Underwriter. Except as herein provided, you shall be responsible for paying all
costs and expenses incurred by you, including the fees and disbursements of your
counsel, in connection with the purchase and sale of the Certificates.
5.8 If, during the period after the Closing Date in which a
prospectus relating to the Certificates is required to be delivered under the
Act, the Company receives notice that a stop order suspending the effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise you of the issuance of such
stop order.
5.9 The Company shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by the Underwriter under Section 4.2(f) with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to the Underwriter or, the case of any Collateral
Term Sheet required to be filed prior to such date, by 10:00 a.m. on the second
business day following the first day on which such Collateral Term Sheet has
been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from ___________________________,
certified public accountants, satisfactory in form and substance to the Company
and its counsel, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Company, as a
result of which they determined that all information that is included in the
Computational Materials (if any) provided by the Underwriter to the Company for
filing on Form 8-K, as provided in Section 4.2 and this Section 5.9, is accurate
without exception. The foregoing letter shall be at the sole expense of the
Underwriter. The Company shall file any corrected Computational Materials
described in Section 4.2(t)
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as soon as practicable following receipt thereof. The Company also will file
with the Commission within fifteen days of the issuance of the Certificates a
Current Report on Form 8-K (for purposes of filing the Pooling and Servicing
Agreement).
6. Conditions to the Obligations of the Underwriter. The Underwriter's
obligation to purchase the Certificates shall be subject to the following
conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since __________, 199_ there shall have been no material adverse
change (not in the ordinary course of business) in the condition of the Company.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company to the effect that the signer of such certificate has examined this
Agreement, the Prospectus, the Pooling and Servicing Agreement and various other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct in all
material respects; and
(b) the Company has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
6.4 You shall have received the opinions of Freshman, Marantz,
Orlanski, Cooper & Klein, special counsel for the Company and ICIFC, dated the
Closing Date and substantially to the effect set forth in Exhibit A-1, Exhibit
A-2 and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an
opinion dated the Closing Date in form and substance satisfactory to the
Underwriter.
6.6 The Underwriter shall have received from certified public
accountants, a letter dated the date hereof and satisfactory in form and
substance to the Underwriter and the Underwriter's counsel, to the effect that
they have performed certain specified procedures, all of which have been agreed
to by the Underwriter, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Description of the Mortgage Pool",
"Pooling and Servicing Agreement", "Description of the Certificates" and
"Certain Yield and
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Prepayment Considerations" agrees with the records of the Company excluding any
questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by [Standard &
Poor's Ratings Services] and [Fitch Investor's Service, L.P.]
6.8 You shall have received the opinion of [Trustee's Counsel], dated
the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from Freshman, Marantz, Orlanski, Cooper
& Klein, special counsel to the Company, and from Freshman, Marantz, Orlanski,
Cooper & Klein, general counsel to the Company, reliance letters with respect to
any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch
Investor Services, L.P.].
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution.
7.1 The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of either Section 15 of the
Act or Section 20 of the Securities Exchange Act of 1934, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference therein, or in the
Prospectus or incorporated by reference therein (if used within the period set
forth in Section 5.3 hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein 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, except insofar as such
losses, claims, damages, or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon any information
with respect to which the Underwriter has agreed to indemnify the Company
pursuant to Section 7.2; provided, that neither the Company, or you will be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein relating to the Excluded
Information.
7.2 You agree to indemnify and hold harmless the Company, its
directors or officers and any person controlling the Company to the same extent
as the indemnity set forth in clause 7.1 above from the Company to you, but only
with respect to (1) the Underwriter Information and (ii) the Computational
Materials and ABS Term Sheets, except to the extent of any errors in the
Computational Materials or ABS Term Sheets that are caused by errors in the Pool
Information. In addition, you agree to indemnify and hold
12
harmless the Company its directors or officers and any person controlling the
Company against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) caused by, resulting
from, relating to, or based upon any legend regarding original issue discount on
any Certificate resulting from incorrect information provided by the Underwriter
in the certificates described in Section 4.3 hereof.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either clause 7.1 or 7.2, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (1) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you, in the case of parties indemnified
pursuant to clause 7. 1 and by the Company, in the case of parties indemnified
pursuant to clause 7.2. The indemnifying party may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel reasonably satisfactory to the indemnified
party in connection therewith provided that the counsel so designated would have
no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense
of any proceeding, it shall be entitled to settle such proceeding with the
consent of the indemnified party or, if such settlement provides for release of
the indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under clause 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
13
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and the Underwriter on the other from
the offering of the Certificates but also the relative fault of the Company on
the one hand and of the Underwriter, on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Underwriter on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
7.5 The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in clause 7.4, above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to clause 7.4; which expenses the indemnifying, party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. 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.
7.6 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless (i) any
termination of this Agreement, (ii) any investigation made by the Underwriter or
on behalf of the Underwriter or any person controlling the Underwriter or by or
on behalf of the Company and its respective directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Certificates.
8. Termination. This Agreement shall be subject to termination by notice
given to the Company, if the sale of the Certificates provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate
14
this Agreement in accordance with this Section 8, the Company will reimburse you
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the
Certificates.
9. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of the Company, and you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by you or on your
behalf or made by or on behalf of the Company or any of its officers, directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter will be mailed,
delivered or telegraphed and confirmed to you at
____________________________________________________, Attention:
_______________________or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ICIFC Secured Assets Corp., 20371 Irvine
Avenue, Suite 200, Santa Ana Heights, California 92707.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be executed in any number of
counterparts, of which shall be deemed an original, which taken together shall
constitute one and the same instrument.
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between the Company and you.
Very truly yours,
ICIFC SECURED ASSETS CORP.
By:________________
Name:
Title: Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
_________________________
By:_______________________
Name:
Title:
16
EXHIBIT A-1
[Freshman, Marantz, Orlanski, Cooper & Klein Letterhead]
______________, 199_
ICIFC Secured Assets Corp.
20371 Irvine Avenue, Suite 200
Santa Ana Heights, California 92707
ICI Funding Corporation
20371 Irvine Avenue, Suite 200
Santa Ana Heights, California 92707
[Underwriter]
- -------------------------------
_______________________________
_______________________________
[Trustee]
- -------------------------------
_______________________________
_______________________________
Re: ICIFC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 199_
---------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to ICIFC Secured Assets Corp. (the
"Company") and ICI Funding Corporation (the "Master Servicer") in connection
with the issuance and sale by the Company of Mortgage Pass-Through Certificates,
Series 199_, ___ (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of __________________, 199_ (the "Pooling and Servicing
Agreement"), among the Company, the Master Servicer and ____________, as trustee
(the "Trustee"). The Certificates consist of ____________ classes designated as
Class A and Class R (collectively, the "Senior Certificates") and ______________
classes of subordinated certificates designated as Class M and Class B. Only the
Senior Certificates and the Class M Certificates (collectively, the "Offered
Certificates") are offered under the Prospectus.
ICIFC Secured Assets Corp. 2.
ICI Funding Corporation
________________,199_
The Senior Certificates in the aggregate and the Class M Certificates will
evidence initial undivided interests of approximately ___% and ___%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first mortgage loans (the
"Mortgage Loans") held by __________________________, as custodian (the
"Custodian"), pursuant to a Custodial Agreement, dated as of ______________,
199_, among the Company, the Master Servicer, the Custodian and the Trustee (the
"Custodial Agreement"). ("The Purchaser") acquired the Mortgage Loans through
its mortgage loan purchase program from various seller/servicers. The Purchaser
transferred the Mortgage Loans to the Company pursuant to an Assignment and
Assumption Agreement, dated _______________, 199_ (the "Assignment and
Assumption Agreement"), in exchange for immediately available funds, the Class M
and Class B Certificates. The Company will sell the Class A and the Class R
Certificates other than a de minimis portion thereof (the "Underwritten
Certificates") to __________________________________ (the "Underwriter"),
pursuant to an Underwriting Agreement, dated _____________________, 199_,
between the Company and the Underwriter (the "Underwriting Agreement", the
Pooling and Servicing Agreement, the Custodial Agreement, the Underwriting
Agreement and the Assignment and Assumption Agreement, collectively, the
"Agreements"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreements. This opinion letter is rendered pursuant
to Section 6.4 of the Underwriting Agreement.
In connection with rendering this opinion letter, we have examined the
Agreements and such records and other documents as we have deemed necessary. As
to matters of fact, we have examined and relied upon representations of the
parties contained in the Agreements and, where we have deemed appropriate,
representations or certifications of officers of the Company, the Master
Servicer, the Trustee or public officials. We have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies. We have assumed that all parties, except
for the Company and the Master Servicer, had the corporate power and authority
to enter into and perform all obligations under such documents. As to such
parties, we also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such documents.
We have assumed that there is not and will not be any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreements.
ICIFC Secured Assets Corp. 3.
ICI Funding Corporation
________________,199_
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of California and the federal law of the
United States, nor do we express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States. To the extent that we have relied
on the foregoing opinion letter, the opinions set forth below are subject to the
same assumptions, qualifications, exceptions and other limitations set forth
therein. We do not express any opinion on any issue not expressly addressed
below.
Based upon the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the Securities
Act of 1933, as amended (the "Act"), and, to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no
proceedings for that purpose have been instituted or threatened under
Section 8(d) of the Act.
2. The Registration Statement, at the Effective Date, and the Prospectus,
as of the date of the Prospectus Supplement, other than any financial
or statistical information or Computational Materials contained or
incorporated by reference therein, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations thereunder.
3. To our knowledge, there are no material contracts, indentures, or
other documents (not including computational materials) of a character
required to be described or referred to in either the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
4. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
5. The statements made in the Prospectus under the heading "Description
of the Certificates", insofar as such statements purport to summarize
certain provisions of the Offered Certificates and the Pooling and
Servicing Agreement, provide a fair summary of such provisions. The
statements made in the Basic Prospectus and the Prospectus Supplement,
as the case may be,
ICIFC Secured Assets Corp. 4.
ICI Funding Corporation
________________,199_
under the headings "Certain Federal Income Tax Consequences", "Certain
Legal Aspects of Mortgage Loans and Related Matters--Applicability of
Usury Laws", and "--Alternative Mortgage Instruments", and "ERISA
Considerations", to the extent that they constitute matters of State
of California or federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of
investment in the Offered Certificates are correct in all material
respects with respect to those consequences or matters that are
discussed therein.
6. Each class of the Senior Certificates and the Class M Certificates
will be "mortgage related securities", as defined in Section 3(a)(41)
of the Securities Exchange Act of 1934, as amended, so long as such
class is rated in one of the two highest rating categories by at least
one nationally recognized statistical rating organization.
7. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund
created by the Pooling and Servicing Agreement is not required to be
registered under the Investment Company Act of 1940, as amended.
8. No consent, approval, authorization or order of any federal or State
of California court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except (a) such as have
been obtained under the Act and (b) such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
the offer and sale of the Underwritten Certificates by the
Underwriter, as to which we express no opinion.
9. Neither the sale of the Underwritten Certificates to the Underwriter
pursuant to the Underwriting Agreement, nor the consummation of any
other of the transactions contemplated by, or the fulfillment by the
Company or the Master Servicer of the terms of the Agreements, will
result in a breach of any term or provision of any federal or State of
California statute or regulation or, to the best of our knowledge,
conflict with, result in a breach, violation or acceleration of or
constitute a default under any order of any federal or State of
California court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or the Master
Servicer.
ICIFC Secured Assets Corp. 5.
ICI Funding Corporation
________________,199_
10. Each of the Agreements has been duly authorized, executed and
delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by the other parties thereto,
each will constitute a valid, legal and binding agreement of the
Company and the Master Servicer, enforceable against the Company and
the Master Servicer in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding, in equity or at
law, and (iii) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of any of the Agreements which
purport to provide indemnification with respect to securities law
violations.
11. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for federal income tax purposes, the Trust Fund will
qualify as a real estate mortgage investment conduit ("REMIC") within
the meaning of Sections 860A through 860G (the "REMIC Provisions") of
the Internal Revenue Code of 1986, the Offered Certificates (other
than the Class R Certificates) will be "regular interests" in the
Trust Fund and the Class R Certificates will be the sole class of
"residual interests" in the Trust Fund, within the meaning of the
REMIC Provisions in effect on the date hereof.
12. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for State of California income and corporation franchise
tax purposes, the Trust Fund will be classified as a REMIC and not as
a corporation, partnership or trust, in conformity with the federal
income tax treatment of the Trust Fund. Accordingly, the Trust Fund
will be exempt from all State of California taxation imposed on its
income, franchise or capital stock, and its assets will not be
included in the calculation of any franchise tax liability.
ICIFC Secured Assets Corp. 6.
ICI Funding Corporation
________________,199_
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon without our
prior written consent. Copies of this opinion letter may not be furnished to
any other person or entity, nor may any portion of this opinion letter be
quoted, circulated or referred to in any other document, without our prior
written consent.
Very truly yours,
FRESHMAN, MARANTZ, ORLANSKI, COOPER &
KLEIN
EXHIBIT A-2
[Freshman, Marantz, Orlanski, Cooper & Klein Letterhead]
____________, 199_
ICIFC Secured Assets Corp.
20371 Irvine Avenue, Suite 200
Santa Ana Heights, California 92707
[Underwriter]
- -----------------------------
_____________________________
_____________________________
[Trustee]
- -----------------------------
_____________________________
_____________________________
Re: ICIFC Secured Assets Corp.
Mortgage Pass-Through Certificates,
Series 199_-__
----------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to ICIFC Secured Assets Corp. (the
"Company") and ICI Funding Corporation (the "Master Servicer") in connection
with the issuance and sale by the Company of Mortgage Pass-Through Certificates,
Series 199 _-__ (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of _____________________, 199_ (the "Pooling and Servicing
Agreement"), among the Company, the Master Servicer and _______________________
as trustee (the "Trustee"). The Certificates consist of __________________
classes designated as Class A and Class R (collectively, the "Senior
Certificates") and ________________________________________ classes of
subordinated certificates designated as Class M and Class B.
ICIFC Secured Assets Corp. 2.
[Underwriter]
[Trustee]
____________________, 199_
The Senior Certificates in the aggregate and the Class M Certificates will
evidence Initial undivided interests of approximately - ___ % and ___%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first mortgage loans (the
"Mortgage Loans held by _____________________________________________________
_______, as custodian (the "Custodian"), pursuant to a Custodial Agreement,
dated as of ___________________, 199_, among the Company, the Master Servicer,
the Custodian and the Trustee (the "Custodial Agreement").____________________
______________________________________________ ("The Purchaser") acquired the
Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to an Assignment and Assumption Agreement, dated ____________________
_____________ 1, 199_ (the "Assignment and Assumption Agreement"), in exchange
for immediately available funds, the Class M and Class B Certificates and a de
minimis portion of the Class R Certificates. The Company will sell the Class A
Certificates and the Class R Certificates other than a de minimis portion
thereof (the "Underwritten Certificates") to _________________________ (the
"Underwriter"), pursuant to an Underwriting Agreement, dated 199_ between the
Company and the Underwriter (the "Underwriting Agreement"; the Pooling and
Servicing Agreement, the Custodial Agreement, the Underwriting Agreement and the
Assignment and Assumption Agreement, collectively, the "Agreements").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreements. This letter is rendered pursuant to Section 6.4 of the
Underwriting Agreement.
Because the primary purpose of our professional engagement was not to
establish factual matters and because of the wholly or partially non-legal
character of many determinations involved in the preparation of the Registration
Statement and the Prospectus, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except to the extent
expressly set forth in paragraph numbered 5 of our opinion letter relating to
certain securities matters, dated the date hereof and addressed to the Company,
the Master Servicer, the Underwriter and the Trustee (the "Closing Opinion"),
and make no representation that we have otherwise independently verified the
accuracy, completeness or fairness of such statements, except as aforesaid. In
particular and without limiting the foregoing, we have not examined any
accounting, financial or statistical records not included in either the
Registration Statement or the Prospectus from which the information and
statements included therein are derived, and we express no belief as to any such
accounting, financial or statistical information contained in either the
Registration Statement or the Prospectus or the information included under the
caption "Method of Distribution" contained in the Prospectus Supplement, or as
to any Computational Materials. We also note that we are not experts with
respect to any portion of the
ICIFC Secured Assets Corp. 3.
[Underwriter]
[Trustee]
____________________, 199_
Registration Statement or the Prospectus, including without limitation such
accounting, financial or statistical information, except to the extent we may be
deemed to be "experts" within the meaning of the Securities Act of 1933 or the
rules and regulations thereunder with respect to the matters specifically
mentioned in paragraph numbered 5 of the Closing Opinion.
However, in the course of our acting as counsel to the Company in
connection with its preparation of the Registration Statement or the Prospectus,
we met in conferences and participated in telephone conversations involving
representatives of the Company, representatives of the Master Servicer,
representatives of the Underwriter, representatives of the Trustee,
representatives of the Custodian, ________________________ in their capacity as
counsel to the Underwriter, and ____________________ in their capacity as
counsel to the Master Servicer, during which conferences and telephone
conversations the contents of the Registration Statement and the Prospectus and
related matters were discussed. In addition, we reviewed the minutes of the
Board of Directors of the Company and of the Master Servicer, which minutes were
represented to us by the Company or the Master Servicer, as applicable, to
__________________________ 199_, and certain documents furnished to us by the
Company and the Master Servicer or otherwise in our possession. We have not
otherwise undertaken any procedures that were intended or likely to elicit
information concerning the accuracy, completeness or fairness of the statements
made in the Registration Statement or the Prospectus.
Based on the foregoing, our understanding of applicable law and the
experience we have gained in our practice thereunder, we hereby advise the
Underwriter that no information has come to our attention that causes us to
believe that the Registration Statement, as of the Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of the date of the Prospectus Supplement and as of
the Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
ICIFC Secured Assets Corp. 4.
[Underwriter]
[Trustee]
____________________, 199_
This letter is rendered for the sole benefit of each addressee hereof, and
no other person or entity is entitled to rely hereon without our prior written
consent. Copies of this letter may not be furnished to any other person or
entity, nor may any portion of this letter be quoted, circulated or referred to
in any other document, without our prior written consent.
Very truly yours,
FRESHMAN, MARANTZ, ORLANSKI, COOPER &
KLEIN
EXHIBIT B
[Freshman, Marantz, Orlanski, Cooper & Klein Letterhead]
______________, 199_
[Trustee]
- -------------------------
_________________________
_________________________
[Underwriter]
- -------------------------
_________________________
_________________________
Re: ICIFC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 199_-__
---------------------------------------------------
Ladies and Gentlemen:
Our firm is General Counsel to ICIFC Secured Assets Corp. (the "Company")
and ICI Funding Corporation (the "Master Servicer"). In that capacity, we are
familiar with the issuance and sale by the Company of Mortgage Pass-Through
Certificates, Series 199_-__ (the "Certificates"), pursuant to a Pooling and
Servicing Agreement, dated as of _________________, 199_ (the "Pooling and
Servicing Agreement"), among the Company, the Master Servicer and
____________________________, as trustee (the "Trustee"). The Certificates
consist of _______________ classes designated as Class A and Class R
(collectively, the "Senior Certificates") and ________________ classes of
subordinated certificates designated as Class M and Class B. Only the Senior
Certificates and the Class M Certificates (collectively, the "Offered
Certificates") are offered under the Prospectus.
The Senior Certificates in the aggregate and the Class M Certificates will
evidence initial undivided interests of approximately ___% and ___%,
respectively, in a trust fund (the "Trust Fund") consisting primarily of a pool
of conventional, fixed-rate, one- to four-family first mortgage loans (the
"Mortgage Loans") held by ___________________________________________________
_______________________, as custodian (the "Custodian"), pursuant to a Custodial
Agreement, dated as of _________________ 1, 199_, among the Company, the Master
Servicer, the Custodian and the Trustee (the "Custodial Agreement"). The Master
Servicer acquired the Mortgage Loans through its mortgage loan purchase program
from various seller/servicers. The Master Servicer transferred the Mortgage
Loans to the Company pursuant to an Assignment and Assumption Agreement, dated
________________________, 199_ (the "Assignment and Assumption Agreement") in
exchange for immediately available Funds, the Class M and the Class B
Certificates. The Company will sell the Class A Certificates and the Class R
Certificates other than a minimum portion thereof (the "Underwritten
Certificates") to __________________________ (the "Underwriter") pursuant to an
Underwriting
ICIFC Secured Assets Corp. 2.
[Underwriter]
[Trustee]
____________________, 199_
Agreement, dated 199_, between the Company and the Underwriter (the
"Underwriting Agreement"; the Pooling and Servicing Agreement, the Custodial
Agreement, the Underwriting Agreement and the Assignment and Assumption
Agreement, collectively, the "Agreements"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Agreements. This opinion
letter is rendered pursuant to Section 6.4 of the Underwriting Agreement.
In connection with rendering this opinion letter, we have examined the
Agreements and such other records and other documents as we have deemed
necessary. As to matters of fact, we have examined and relied upon
representations of the parties contained in the Agreements and, where we have
deemed appropriate, representations and certifications of officers of the
Company, the Master Servicer, the Trustee or public officials. We have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the original of all documents submitted to us as copies. We have assumed that
all parties, except for the Company and the Master Servicer, had the corporate
power and authority to enter into and perform all obligations thereunder. As to
such parties, we also have assumed the due authorization by all requisite
corporate action, the due execution and delivery and the enforceability of such
documents. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreements.
In rendering this opinion letter, we do not express any opinion
concerning law other than the law of the State of California and the federal law
of the United States, and we do not express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. We do
not express any opinion on any issue not expressly addressed below.
Based upon the foregoing, we are of the opinion that:
1. The Company and the Master Servicer are duly incorporated and are
validly existing as corporations in good standing under the laws of the State of
California and each has the requisite power and authority, corporate or other,
to own its properties and conduct its business, as presently conducted by it,
and to enter into and perform its obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by other parties thereto, will constitute
the valid, legal and binding agreements of the Company and the Master Servicer,
enforceable against the Company and the Master
[Trustee] 3.
[Underwriter]
_______________, 199_
Servicer, in accordance with its terms, except as enforceability may be limited
by (1) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of the Agreements which purport to provide
indemnification with respect to securities law violations.
3. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement, will be entitled to the benefits of the Pooling and Servicing
Agreement.
4. No consent, approval, authorization or order of the State of
California or federal court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except for those consents,
approvals, authorizations or orders which previously have been obtained.
5. Neither the sale, issuance and delivery of the Underwritten
Certificates as provided in the Agreements, nor the consummation of any other of
the transactions contemplated by, or the fulfillment of any other of the terms
of, the Agreements, will result in a breach of any term or provision of the
charter or bylaws of the Company or the Master Servicer or any State of
California or federal statute or regulation or conflict with, result in a
breach, violation or acceleration of or constitute a default under the terms of
any indenture or other material agreement or instrument to which the Company or
the Master Servicer is a party or by which it is bound or any order or
regulation of any State of California or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company
or the Master Servicer.
[Trustee] 4.
[Underwriter]
_______________, 199_
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon without our
prior written consent. Copies of this opinion letter may not be furnished to any
other person or entity, nor may any portion of this opinion letter be quoted,
circulated or referred to in any other document without our prior written
consent.
Very truly yours,
FRESHMAN, MARANTZ, ORLANSKI, COOPER &
KLEIN
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
___________________, 199_
[Underwriter] ICIFC Secured Assets Corp.
- ----------------------------- 20371 Irvine Avenue, Suite 200
_____________________________ Santa Ana Heights, California 92707
_____________________________
ICI Funding Corporation [Trustee]
20371 Irvine Avenue, Suite 200 --------------------------------
Santa Ana Heights, CA 92707 ________________________________
________________________________
Re: ICIFC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 199__-__
-----------------------------------------------------------
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ________________,
199_ (the "Pooling and Servicing, Agreement"), among ICIFC Secured Assets Corp.,
as Company, ICI Funding Corporation, as Master Servicer and
____________________________, as trustee (the "Trustee"), we have been asked to
furnish this opinion. Capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined and relied
upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis to the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute and
deliver the Pooling and Servicing Agreement, the Custodial Agreement
and the Certificates and to perform its obligations under the Pooling
and Servicing Agreement and the Custodial Agreement.
[Trustee] 2.
[Underwriter]
______________, 199_
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by the
Trustee, and the Trustee has duly executed and delivered the
Certificates as provided in the Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership and similar laws
affecting the rights of creditors generally, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforcement is considered in a proceeding at law or in equity.
4. In the event that the Master Servicer defaults in its obligation to
make Advances pursuant to Section 4.03(b) of the Pooling and Servicing
Agreement, the Trustee is not, as of the date hereof, prohibited by
any provision of its Amended Articles of Organization or By-Laws or by
any provision of the banking and trust laws of the State of New York
from assuming, pursuant to Section 7.02 of the Pooling and Servicing
Agreement, the obligation to make such Advances.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This opinion
may not be used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
__________________________
EXHIBIT D
Excluded Information
EXHIBIT E
Underwriter Information
EXHIBIT F
_______________, 199_
ICIFC Secured Assets Corp.
20371 Irvine Avenue, Suite 200
Santa Ana Heights, California 92707
Re: ICIFC Secured Assets Corp.,
Mortgage Pass-Through Certificates,
Series 199_-__,Class A and Class R
-------------------------------------------
Pursuant to Section 4 of the Underwriting Agreement, dated _______________
199_, between ICIFC Secured Assets Corp. and ________________________ (the
"Underwriter") relating to the Certificates referenced above (the "Underwriting
Agreement"), the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was __%
SPA.
(b) Set forth below is (i), the first price, as a percentage of the
principal balance of each class of Certificates, in which 10% of the aggregate
principal balance of each such class of Certificates was sold to the public at a
single price, if applicable, or (ii) if more than 10% of a class of Certificates
have been sold to the public but no single price is paid for at least 10% of the
aggregate principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates, or (iii) if
less than 10% of the aggregate principal balance of a class of Certificates has
been sold to the public, the purchase price for each such class of Certificates
paid by the Underwriter expressed as a percentage of the principal balance of
such class of Certificates calculated by: (1) estimating the fair market value
of each such class of Certificates as of ___________________________, 199_; (2)
adding such estimated fair market value to the aggregate purchase price of each
class of Certificates described in clause (1) or (ii) above; (3) dividing each
of the fair market values determined in clause (1) by the sum obtained in clause
(2); (4) multiplying the quotient obtained for each class of Certificates in
clause (3) by the purchase price paid by the Underwriter for all the
Certificates; and (5) for each class of Certificates, dividing the product
obtained from such class of Certificates in clause (4) by the original
principal balance of such class of Certificates:
2.
Class A: ___________________
Class R: ___________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
_______________________
By:____________________
Name:__________________
Title:_________________
EXHIBIT G
[Form of Legend]