BY IMPAC OR (B) ANY
ACTION, INACTION OR OMISSION OF IMPAC OR ANY EMPLOYEE OR AGENT THEREOF.
4.
STATUS UNDER UCC
SECTION 9-620.
WITH
RESPECT TO UBS'S ELECTION TO RECEIVE THE RELEASE AND CONVEYANCE OF RELEASED
ASSETS PURSUANT TO SECTION 1(A)(II) ABOVE IN PARTIAL CONSIDERATION FOR ITS
RELEASE OF CLAIMS, THIS AGREEMENT SHALL CONSTITUTE A PROPOSAL UNDER UCC SECTIONS
9-620 AND 9-621 TO TAKE SUCH RELEASED ASSETS, TOGETHER WITH THE CASH AND OTHER
RIGHTS PURSUANT TO THIS AGREEMENT, AND IMPAC'S ACCEPTANCE OF AND CONSENT TO SUCH
PROPOSAL.
THE PARTIES TO THIS AGREEMENT AGREE THAT THE ACCEPTANCE OF SUCH
PROPOSALS WILL NOT ELIMINATE OR SATISFY THE OBLIGATIONS TO UBS UNDER THIS
AGREEMENT, AND AGREE THAT SUCH ACCEPTANCE SHALL BE DEEMED TO OCCUR AFTER DEFAULT
FOR THE PURPOSES OF UCC SECTION 9-620.
5.
REPRESENTATIONS AND WARRANTIES.
(I) EACH OF THE PARTIES HERETO HEREBY REPRESENTS AND WARRANTS THAT EACH OF THE
FOLLOWING STATEMENTS IS TRUE, ACCURATE AND COMPLETE AS TO SUCH PARTY AS OF THE
DATE HEREOF:
4
(A)
SUCH PARTY HAS CAREFULLY READ AND FULLY
UNDERSTOOD ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE CREDIT
AGREEMENT;
(B)
SUCH PARTY HAS CONSULTED WITH, OR HAD A FULL
AND FAIR OPPORTUNITY TO CONSULT WITH, AN ATTORNEY REGARDING THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND THE CREDIT AGREEMENT;
(C)
SUCH PARTY HAS HAD A FULL AND FAIR
OPPORTUNITY TO PARTICIPATE IN THE DRAFTING OF THIS AGREEMENT AND THE CREDIT
AGREEMENT;
(D)
SUCH PARTY IS FREELY, VOLUNTARILY, KNOWINGLY
AND INTELLIGENTLY ENTERING INTO THIS AGREEMENT AND THE CREDIT AGREEMENT;
(E)
SUCH PARTY IS NOT PROHIBITED FROM ENTERING
INTO THIS AGREEMENT AND THE CREDIT AGREEMENT, ALL NECESSARY CONSENTS FOR
ENTERING INTO THIS AGREEMENT AND THE CREDIT AGREEMENT AND FOR THE PERFORMANCE OF
ITS OBLIGATIONS HEREUNDER AND THEREUNDER HAVE BEEN OBTAINED, AND THERE ARE NO
PENDING ACTIONS OR INVESTIGATIONS THE OUTCOME OF WHICH COULD ADVERSELY AFFECT
SUCH PARTY'S ABILITY TO PERFORM ITS OBLIGATIONS HEREUNDER;
(F)
IN ENTERING INTO THIS AGREEMENT AND THE
CREDIT AGREEMENT, SUCH PARTY HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT NOT EXPRESSLY SET FORTH HEREIN OR THEREIN;
(G)
EACH OF THIS AGREEMENT AND THE CREDIT
AGREEMENT HAS BEEN DULY AUTHORIZED AND VALIDLY EXECUTED AND DELIVERED BY SUCH
PARTY AND CONSTITUTES SUCH PARTY'S LEGAL, VALID AND BINDING OBLIGATION,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW; AND
(H)
SUCH PARTY IS DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF FORMATION
AND HAS THE FULL POWER AND LEGAL AUTHORITY TO EXECUTE THIS AGREEMENT AND THE
CREDIT AGREEMENT, AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY, AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
(II) EACH OF IMH, IFC AND IWLG HEREBY REPRESENTS AND WARRANTS THAT IT HAS NOT
SETTLED OR RELEASED, IN PART OR IN FULL, ANY CLAIM THAT IT MAY