Exhibit 10.85
INTERCREDITOR AGREEMENT
(Henschels)
INTERCREDITOR AGREEMENT, dated as of November 10, 1999 (the
"Agreement"), between IMC MORTGAGE COMPANY, a Florida corporation (the
"Company"), GREENWICH STREET CAPITAL PARTNERS II, L.P., a Delaware limited
partnership ("GSCP"), GREENWICH FUND, L.P., a Delaware limited partnership, GSCP
OFFSHORE FUND, L.P., a Cayman Islands exempted limited partnership, GREENWICH
STREET EMPLOYEES FUND, L.P., a Delaware limited partnership, TRV EXECUTIVE FUND,
L.P., a Delaware limited partnership (each, including GSCP, a "Facility Lender"
and collectively, the "Facility Lenders"), XXXX XXXXXXXX ("NH") and Xxxxxxx X.
Xxxxxxxx ("JH", and together with NH, the "Henschels").
RECITALS
A. The Company has entered into a Loan Agreement, dated as of
October 12, 1998, amended by Amendment No. 1 thereto, dated as of February 11,
1999 (as the same may be further modified, supplemented or restated from time to
time, the "Loan Agreement"), between the Company, as borrower, and the Facility
Lenders, pursuant to which the Facility Lenders have extended to the Company
loans in the aggregate principal amount of $38,000,000 (the "Loans"), subject to
the terms and conditions set forth in the Loan Agreement, which Loans are
evidenced by notes and entitled to the benefit of certain guarantees and
security provided under certain other documents related to such Loans.
B. The Facility Lenders have succeeded by assignment to the
Company's debt obligations to BankBoston N.A. (together with the Loans, the
"Facility Lender Obligations").
C. The Facility Lenders have made certain additional loans to
the Company pursuant to Note Purchase and Amendment Agreement No. 6, dated as of
October 18, 1999, in the original principal amount of $61,500,000 (the "Facility
Lender Advances"), to fund certain monthly delinquent interest servicing
advances in respect of the Company's securitizations.
D. The Company issued a Promissory Note, dated as of July 1,
1997, in the amount of $12,975,864.30 (as amended and including any additional
Promissory Notes delivered pursuant to Section 7 hereof, the "NH Note") to NH,
and a Promissory
Note, dated as of July 1, 1997, in the amount of $1,441,762.70 (as amended and
including any additional Promissory Notes delivered pursuant to Section 7
hereof, the "JH Note", and, together with the NH Note, the "Notes") to JH,
pursuant to which the Company has certain unsecured payment obligations to the
Henschels (the "Note Obligations").
E. The Company has entered into an Asset Purchase Agreement,
dated as of July 13, 1999, as amended by Amendment No. 1 thereto, dated
September 7, 1999 and a Delinquency and Servicing Advance Purchase Agreement,
dated November _, 1999 (collectively, the "Asset Purchase Agreement"), between
the Company and CitiFinancial Mortgage Company, a Delaware corporation ("CMC"),
pursuant to which CMC would acquire certain assets and assume certain
liabilities of the Company (the "Asset Sale").
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Henschels and the Facility Lenders agree as follows:
Section 1. Standstill. (a) The Henschels agree, subject to the
terms of this Agreement, that for the Standstill Period, they shall not:
(i) file or join in the filing of any involuntary petition in
bankruptcy with respect to the Company or its subsidiaries, or initiate
or participate in any similar proceedings for the benefit of creditors,
including any proceeding for the appointment of a trustee, receiver,
conservator or liquidator of the Company or its subsidiaries or any
portion of its assets;
(ii) seek to collect or enforce by litigation or otherwise,
the Note Obligations;
(iii) make any demands for payment in respect of, or
collateral to secure, the Notes or the Note Obligations;
(iv) declare a default or event of default under, or exercise
or enforce any right or remedy under, or accelerate the maturity of the
Notes or any Note Obligation; or
(v) seek to attach, sequester or otherwise proceed against any
of the assets of the Company.
(b) The Standstill Period may be terminated by the Henschels
by written notice to the Company, the Facility Lenders and each of the other
creditors listed on
Schedule I hereto who currently hold security interests in assets of the Company
(the "Other Secured Creditors") at the notice addresses set forth on Schedule I
hereto upon the occurrence of any of the following:
(i) a failure by the Company to make to the Henschels
any required payment in respect of the Notes when due pursuant to
Section 7 hereof, or a failure by the Company to make payments to the
Facility Lenders in accordance with the terms of the Other
Intercreditor Agreements (as defined below), in each case, which
failure continues unremedied for five days;
(ii) any intentional fraud or misrepresentation by
the Company;
(iii) immediately in the event the Facility Lenders
or any of the Other Secured Creditors takes any of the actions
described in Section 1(a) of the Other Intercreditor Agreements or
terminates the "standstill period" (as such term is defined in each
Other Intercreditor Agreement) pursuant to Section 1(b) of any Other
Intercreditor Agreement, in each case whether or not it shall have
given notice of termination of the standstill period;
(c) The Standstill Period shall terminate automatically
without notice or other action by any the Henschels or the Facility Lenders upon
the occurrence of any of the following:
(i) the Company shall consent to the appointment of
or taking possession by a receiver, assignee, custodian,
sequestrator, trustee or liquidator (or other similar official) of
itself or of a substantial part of its property; or the Company shall
admit in writing (to any creditor, governmental authority or judicial
court or tribunal) its inability to pay its debts generally as they
come due or shall fail generally to pay its debts as they become due,
or shall make a general assignment for the benefit of its creditors; or
the Company shall file a voluntary petition in bankruptcy or a
voluntary petition or answer seeking liquidation, reorganization or
other relief with respect to itself or its debts under the Federal
bankruptcy laws, as now or hereafter constituted or any other
applicable Federal or State bankruptcy, insolvency or other similar
law, or shall consent to the entry of an order for relief in an
involuntary case under any such law; or the Company shall file an
answer admitting the material allegations of a petition filed against
the Company in any such proceeding, or otherwise seek relief under
the provisions of any existing or future Federal or State bankruptcy,
insolvency or other similar law providing for the reorganization or
winding-up of corporations, or providing for an arrangement,
agreement, composition, extension or adjustment
with its creditors; or the Company shall take or publicly announce its
intention to take corporate action in furtherance of any of the
foregoing; or
(ii) an order, judgment or decree shall be entered in
any proceeding by any court of competent jurisdiction appointing,
without the consent of the Company, a receiver, trustee or liquidator
of the Company or of any substantial part of its property, or any
substantial part of the property of the Company shall be sequestered,
and any such order, judgment or decree of appointment or sequestration
shall remain in force undismissed, unstayed or unvacated for a period
of 30 days after the date of entry thereof; or
(iii) an involuntary petition against the Company in
a proceeding under the Federal bankruptcy laws or other insolvency
laws, as now or hereafter in effect, shall be filed and shall not be
withdrawn or dismissed within 30 days thereafter, or a decree or order
for relief in respect of the Company shall be entered by a court of
competent jurisdiction in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or, under the
provisions of any law providing for reorganization or winding-up of
corporations which may apply to the Company, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the
Company or of any substantial part of its property and such
jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of 30 days.
Section 2. Subordination. (a) Subject to the other terms and
conditions of this Agreement, including, without limitation, those set forth in
Section 7, from and until the expiration of the Standstill Period, the Henschels
hereby subordinate any and all claims now or hereafter owing to them by the
Company under the Notes to any and all claims of the Facility Lenders and the
Other Secured Creditors pursuant to any obligation for borrowed money of, or
agreement to lend money to, (or any purchase obligation under a repurchase
agreement of) the Company, including, without limitation, interest or other
payments paid or accrued after the commencement of any Insolvency Proceeding
(the "Obligations"), and payment of or for adequate protection pursuant to any
Insolvency Proceeding.
(b) Except as set forth in this paragraph (b) and Section 19
hereof, from and until the expiration of the Standstill Period, the Henschels
agree not to accept any
payment of the Note Obligations nor make any transfer to third parties not party
to this Agreement or take any other action designed to secure directly or
indirectly from the Company or any other person or entity any payment on account
of the Note Obligations, without the express, prior written agreement of the
Facility Lenders, and, except as set forth below in this paragraph (b), the
Henschels agree to pay over to the Facility Lenders any funds that may be
received by them from the Company as a payment on account of the Note
Obligations. Notwithstanding the foregoing, the Henschels shall be entitled to
receive and retain their share of any payment made in accordance with Section 7
hereof.
(c) Except as otherwise expressly provided in Section 7 hereof
and to the extent the same resulted from a payment arising during any period for
which the Note Obligations are subordinated pursuant to subsection (a) hereof,
in the event of any payment, distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the property, assets or business of the Company or any of its
subsidiaries, or the proceeds thereof, or any securities of the Company, to the
Henschels, by reason of any liquidation, dissolution or other winding up of the
Company or its business or by reason of any sale or any insolvency,
receivership, bankruptcy, dissolution, liquidation, or reorganization
proceeding, or in any other proceeding, whether voluntary or involuntary, by or
against the Company, under any bankruptcy or insolvency law or laws, Federal or
state, relating to the relief of debtors of any jurisdiction, whether now or
hereafter in effect, and in any out-of-court composition, assignment for the
benefit of any creditor, readjustment of indebtedness, reorganization, extension
or other debt arrangement of any kind (collectively, "Insolvency Proceeding"),
then any such payment or distribution of any kind or character, whether in cash,
property or securities, which, but for the subordination provisions of this
Section 2, would otherwise be payable or deliverable upon or in respect of the
Note Obligations, shall instead be paid over or delivered directly to the
Facility Lenders, for application to the payment of the Obligations, to the
extent necessary to make payment of the Obligations remaining unpaid after
giving effect to any concurrent payment or distribution to the Facility Lenders.
(d) Nothing contained in this Agreement shall alter or impair
the Henschels' rights under the Notes or the Note Obligations from and after the
termination of the Standstill Period in accordance herewith or be interpreted to
mean that the Henschels have any obligation under the Notes or the Note
Obligations or otherwise to return any proceeds received in respect of the Notes
or the Note Obligations to the Company or any subsidiary of the Company, except
as expressly provided herein.
Section 3. Turnover of Prohibited Transfers. If any payment,
distribution or security, or the proceeds thereof, are received by the Henschels
on account of or with
respect to any of the Note Obligations other than as expressly permitted herein,
the Henschels shall forthwith deliver same to the Facility Lenders in the form
received (except for the addition of any endorsement or assignment necessary to
effect a transfer of all rights therein to the Facility Lenders) for application
to the Obligations or, at the Facility Lenders' option, the Henschels shall pay
to the Facility Lenders the amount thereof on demand. The Facility Lenders are
irrevocably authorized to supply any required endorsement or assignment which
may have been omitted. Until so delivered, any such payment, distribution or
security shall be held by the Henschels in trust for the Facility Lenders, and,
if the Henschels knew or reasonably should have known that any such receipts
should be held in trust pursuant hereto, shall not be commingled with other
funds or property of the Henschels, and upon request the Henschels promptly
shall pay such funds over to the Facility Lenders pursuant to the first sentence
of this Section 3.
Section 4. Waiver of Marshaling. The Henschels agree that the
Facility Lenders shall have no obligation to marshal any part of the assets of
the Company or any other property, instruments, documents, agreements or
guaranties before enforcing their rights against any assets of the Company.
Accordingly, the parties hereto agree that the Facility Lenders may liquidate
the assets of the Company in any order in their sole discretion.
Section 5. No Contest of Security Interests. During the
Standstill Period, the Henschels shall not contest the validity, perfection or
enforceability of any security interest granted to the Facility Lenders or the
Other Secured Creditors by (or any purchase subject to a repurchase obligation
of) the Company, or any payment on the Obligations or the allowance of the
Obligations as a senior secured claim, and the Henschels agree to cooperate in
the defense of any action contesting the validity, perfection or enforceability
of such liens or security interests or such payment or allowance. Nothing in
this Agreement shall be construed as in any way limiting a party's right to
enforce the order of priorities of debts set forth herein as against any other
person or entity.
Section 6. Subordination Not Affected, Etc. Nothing in this
Agreement shall be construed as affecting or in any way limiting the extension
of any new or additional financial accommodation by the Facility Lenders and the
Other Secured Creditors to the Company and the terms and conditions hereof shall
apply to such new and additional financial accommodations. Notwithstanding the
preceding sentence or
anything contained in this Agreement to the contrary, none of the provisions of
this Agreement shall be deemed or construed to constitute a commitment or an
obligation on the part of the Facility Lenders or any Other Secured Creditors to
make any future loans, advances or other extensions of credit or financial
accommodation to the Company. The Henschels understand and agree that all
accrued interest, charges, expenses, attorneys' fees and other liabilities and
obligations under the Loan Agreement and related documents and any agreement of
the Company to borrow money from the Other Secured Creditors shall constitute
part of the Obligations, and nothing in this Agreement shall be construed as
affecting or in any way limiting any indulgence granted by the Facility Lenders
or any Other Secured Creditors with respect to any existing financial
accommodation to the Company. The subordinations effected hereby shall not be
affected by (a) any amendment of or any addition of or supplement to any
instrument, document or agreement relating to the Obligations, (b) any exercise
or non-exercise of any right, power or remedy under or in respect of the
Obligations or any instrument, document or agreement relating thereto, (c) the
release, sale, exchange or surrender, in whole or in part, of any part of any
collateral (or of property subject to repurchase obligation) to which the
Facility Lenders or any Other Secured Creditors may become entitled, (d) any
waiver, consent, release, indulgence, extension, renewal, modification, delay or
other action, inaction or omission in respect of the Obligations or any
instrument, document or agreement relating thereto or any security therefor or
pledge or guaranty thereof, whether or not the Henschels shall have had notice
or knowledge of any of the foregoing and regardless of whether the Henschels
shall have consented or objected thereto. Any provision of any document,
instrument or agreement evidencing, or otherwise relating to the Note
Obligations purporting to limit or restrict in any way the Company's ability to
enter into any agreement with the Facility Lenders and the Other Secured
Creditors to amend or modify any document, instrument or agreement evidencing,
securing or otherwise relating to the Obligations shall be deemed of no force or
effect.
Section 7. Principal and Interest Payments. (a) Upon
consummation of the Asset Sale and simultaneously upon payment by the Company to
the Facility Lenders of such monies other than Excepted Proceeds, the Facility
Lenders shall pay to the Henschels 10% of the first $7.5 million of the Facility
Lender Asset Sale Proceeds and 5% of the Facility Lender Asset Sale Proceeds in
excess of $7.5 million up to a maximum aggregate amount to be paid to the
Henschels hereunder of $1.25 million; provided that the Facility Lenders shall
pay Henschels not less than $600,000 from the Facility Lender Asset Sale
Proceeds (the "Minimum Payment"), in each case to be applied first to repayment
of any accrued and unpaid interest owed to the Henschels on the Note Obligations
and then to the principal of the Note Obligations under the Notes.
(b) The Notes are hereby amended so that the Company shall pay
monthly in arrears on the first business day of each month, commencing December
1, 1999, interest at the rate of 10% per annum on the then outstanding principal
balance (including interest which has been capitalized) due under the Notes. As
of the date hereof, prior to the capitalization of interest and expenses, the
outstanding principal balance under the NH Note is $11,615,221.80 and under the
JH Note is $1,290,580.20. As of November 12, 1999, the outstanding accrued and
unpaid interest under the NH Note equals $177,081.28 and under the JH Note
equals $19,675.70 which interest shall be capitalized as of November 12, 1999.
As of November 12, 1999, the outstanding expenses related to the NH Note are
$150,750.00 and related to the JH Note are $16,750.00 which expenses shall be
capitalized as of the date hereof. As of November 12, 1999, including the
capitalization of interest and expenses, the outstanding principal balance under
the NH Note equals $11,943,053.08 and under the JH Note equals $1,327,005.90.
All accrued and unpaid interest and capitalized expenses shall be payable in
kind by delivery of additional Notes, and any interest so paid in kind shall
then be considered outstanding principal due under the Notes for all purposes
herein.
(c) Until such time as the Note Obligations shall have been
paid in full and simultaneously upon payment by the Company to the Facility
Lenders of such monies other than Excepted Proceeds, the Facility Lenders shall
pay to the Henschels the following amounts: (i) 3% of all Facility Lender
Residual Proceeds until such time as total Facility Lender Receipts equal $104
million; (ii) 7.5% of all Facility Lender Residual Proceeds during such time as
total Facility Lender Receipts are between $104 million and $144 million; and
(iii) 20% of all Facility Lender Residual Proceeds after such time as total
Facility Lender Receipts are in excess of $144 million. All such payments to the
Henschels shall be applied first to accrued and unpaid interest owed to the
Henschels on the Note Obligations and then to repayment of principal on the Note
Obligations under the Notes.
(d) The Company shall not sell any Residuals unless,
contemporaneously with such sale, the Company shall make any payment to the
Facility Lenders that is contemplated by the Other Intercreditor Agreements, and
simultaneously with any such payment from the Company, the Facility Lenders
shall make payment on the Note Obligations in respect of the Facility Lender
Residual Proceeds generated by the sale of such Residuals as required by Section
7(b) and 7(c) above. In addition, the Facility Lenders agree that they shall not
cause or permit to occur a sale of Residuals to themselves or any of their
affiliates for a purchase price equal to less than the fair market value of such
Residuals. For purposes of the preceding sentence only, the fair market value of
such Residuals may be determined by third party bids for such Residuals or by an
independent appraisal.
(e) Upon reasonable request of the Henschels, the Facility
Lenders will provide the Henschels with information as to the amount of Excepted
Proceeds due to them at such time. The Company shall provide to the Henschels
the Monthly Statement (as such term is defined in the Other Intercreditor
Agreements) and any other information that the Company provides to the Other
Secured Creditors.
(f) The Company or the Facility Lenders shall pay amounts due
pursuant to this Agreement to each of NH or JH as notified in writing in advance
by either NH or JH, such notification to be conclusive and binding on both NH
and JH regardless of whether NH or JH provides such notice.
Section 8. Certain Definitions.
"Asset Sale" has the meaning specified in the recitals.
"Common Stock" means the Company's common stock, par value
$0.001 per share.
"Company" has the meaning specified in the recitals.
"Excepted Proceeds" means any payments received by the
Facility Lenders in respect of (i) principal and accrued interest with respect
to Facility Lender Advances, (ii) Expense Reimbursements, (iii) Surety Bond
Payments or (iv) the Xxxxxxxx Make-up Amount.
"Expense Reimbursements" means any payments received by the
Facility Lenders in respect of (i) the payment or reimbursement from time to
time of expenses, including reasonable attorneys' fees and disbursements,
payable to the Facility Lenders pursuant to the Facility Lender Obligations as
in effect on the date hereof, and (ii) a $1,000,000 fee to be paid to the
Facility Lenders out of the proceeds of the Asset Sale.
"Facility Lender Advances" has the meaning specified in the
recitals.
"Facility Lender Asset Sale Proceeds" means any proceeds from
the Asset Sale paid to the Facility Lenders, except for the Excepted Proceeds,
for application to payment of the Facility Lender Obligations and the Note
Obligations as contemplated by
the Other Intercreditor Agreements; for the avoidance of doubt, Facility Lender
Asset Sale Proceeds shall include any distributions to the Facility Lenders
pursuant to the Securitization Escrow Agreement, the Tax Escrow Agreement or the
NLC Escrow Agreement (as such terms are defined in the Other Intercreditor
Agreements).
"Facility Lender Receipts" means the amount paid to the
Facility Lenders in respect of the Facility Lender Asset Sale Proceeds or the
Facility Lender Residual Proceeds.
"Facility Lender Residual Proceeds" means all proceeds of
distribution on or liquidation of Residuals and other assets of the Company or
other monies paid to the Facility Lenders pursuant to the Other Intercreditor
Agreements or otherwise, except in each case for the Excepted Proceeds, and
excluding any Facility Lender Asset Sale Proceeds.
"Facility Lenders" has the meaning specified in the recitals.
"Xxxxxxxx Make-up Amount" shall mean an amount equal to the
product of (i) 75% and (ii) the excess if any of (A) $600,000 over (B) the
amount the Henschels would have received pursuant to Section 7(a) hereof if the
Facility Lenders had no obligation to pay the Minimum Payment.
"Insolvency Proceeding" has the meaning specified in Section
2(c).
"Obligations" has the meaning specified in Section 2(a).
"Other Intercreditor Agreements" means, collectively: (i) the
Second Amended and Restated Intercreditor Agreement, dated as of November 10,
1999, between the Company, the Facility Lenders and Xxxxx Xxxxxx Real Estate
Securities Inc.; (ii) the Second Amended and Restated Intercreditor Agreement,
dated as of November 10, 1999, between the Company, the Facility Lenders, Bear
Xxxxxxx Home Equity Trust, Bear, Xxxxxxx International Limited and certain other
parties enumerated therein; and (iii) the Second Amended and Restated
Intercreditor Agreement, dated as of November 10, 1999, between the Company, the
Facility Lenders and German American Capital Corporation.
"Residual" means any residual, subordinated or interest strip
class of asset-backed security (i) issued in connection with a securitization in
which any creditor of the Company or its designee acted as lead or co-lead
underwriter or placement agent and (ii) pledged or sold, subject to repurchase
obligation, by the Company and its
subsidiaries and accepted by such creditor in connection with the financing of
such security.
"Standstill Period" means a period ending on the first to
occur of (i) the repayment in full of all Note Obligations, or (ii) termination
of the Standstill Period in accordance with Section 1(b) hereof.
"Surety Bond Payments" means any payments pursuant to the
Reimbursement Agreement, dated as of May 20, 1999 (as the same may be amended,
the "Reimbursement Agreement"), among the Company, and GSCP, providing for
reimbursement of amounts paid pursuant to certain indemnification obligations
undertaken by GSCP in favor of issuers of surety bonds issued on behalf of the
Company and its subsidiaries.
Section 9. Acknowledgment of Obligations. The Company
acknowledges that its obligations under the Notes and the Note Obligations
remain in full force and effect, and that the Company has no defenses,
counterclaims or offsets to its obligations under the Notes and the Note
Obligations. The Company hereby waives the application of the automatic stay in
any bankruptcy proceeding in respect of the Notes and the Note Obligations
provided that the foregoing shall not be construed to modify the provisions of
Sections 2 hereof. This document shall not constitute a waiver, amendment or
modification of the Notes and the Note Obligations except as expressly provided
herein and shall not be construed as a waiver or consent to any future action on
the part of the Company that would require a waiver or consent of the Henschels
or the Facility Lenders, respectively, except to the extent expressly provided
herein. The Company and each subsidiary hereby releases the Henschels, their
respective officers, directors and participants from any and all claims in
respect of the Notes and in respect of actions taken or not taken in connection
therewith on or prior to the date of execution and delivery hereof, excluding,
however, any obligation under any agreement by such person for the payment of
money, return of property or any contractual obligations. Effective upon the
closing of the Asset Sale and the receipt by the Henschels of the payments to be
received hereunder from the proceeds of the Asset Sale, the Henschels hereby
releases the executive officers and the directors of the Company from any and
all claims in respect of the Notes and in respect of the actions taken or not
taken in connection therewith on or prior to the date of execution and delivery
hereof, excluding, however, any obligations under any agreement by such person
for the payment of money, return of property or any
contractual obligations, and also excluding any claims in respect of fraud or
intentional misconduct.
Section 10. Notices (a) The Company shall give the Henschels
and the Facility Lenders prompt written notice of any event that would permit
termination of the Standstill Period pursuant to Section 1(b) hereof.
(b) The Company shall give the Henschels prompt written notice
of the consummation of the Asset Sale and any amendment of the Reimbursement
Agreement.
Section 11. Waiver of Stay. The Company hereby waives the
application of the automatic stay in any bankruptcy proceeding in respect of the
obligations under the Loan Agreement, and the Company and each creditor consents
to the modification of the stay to permit the exercise by the Facility Lenders,
the Other Secured Creditors or the Henschels of their rights in respect of the
assets of the Company, provided that the foregoing shall not be construed to
modify the provisions of Sections 2 to 6 hereof.
Section 12. Amendments, Etc. No amendment, modification,
supplement, termination, consent or waiver of this Agreement or any term or
provision of this Agreement shall be effective and binding unless in writing and
signed by the Henschels, the Company, Facility Lenders and the Other Secured
Creditors. Any such waiver will be effective only in the specific instance and
for the specific purpose for which it is given.
Section 13. Severability. Any provision of this Agreement
which is illegal, invalid, prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating or impairing
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
Section 14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR
EQUITABLE ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
Section 15. GOVERNING LAW; VENUE AND JURISDICTION. THE
VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT
HEREOF AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF. EACH OF THE
PARTIES HERETO SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF, AND AGREES THAT ALL
ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT MAY BE TRIED
AND LITIGATED IN FEDERAL OR, IN THE ABSENCE OF FEDERAL SUBJECT MATTER
JURISDICTION, STATE COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK
UNLESS SUCH ACTIONS OR PROCEEDINGS ARE REQUIRED TO BE BROUGHT IN ANOTHER COURT
TO OBTAIN SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF
THE PARTIES WAIVES, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE IN ANY PROCEEDING
BROUGHT IN ACCORDANCE WITH THE IMMEDIATELY PRECEDING SENTENCE. SERVICE OF
PROCESS SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST SUCH PARTY
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS
ADDRESS INDICATED IN SECTION 16.
Section 16. Notices. All notices, requests and other
communications to any party hereunder shall be in writing and shall be given
to such party by facsimile transmission or by hand delivery at the following
address or facsimile number, or such other address or facsimile number as such
party may hereafter specify for the purpose by notice to each other party. (a)
If to the Facility Lenders, Greenwich Street Capital Partners II, L.P., c/o
Greenwich Street Capital Partners, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn.: Xxxxxx Xxxxx; Tel: (000) 000-0000, Fax: (000) 000-0000; with
a copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxxxxx Xxxxxx, Esq., Tel: (000) 000-0000, Fax: (000) 000-0000; (b) if to
the Company, IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
Attn.: President, Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to
Xxxxxxxx X. Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000; and (c) and
if to the Henschels: 000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx Xxxx, XX 00000, Tel.: (800) 950-3314 ext. 1101, Fax: (000) 000-0000;
with a copy to Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx X. Xxxxxx, P.C., Tel: (212)
000-0000; Fax: (000) 000-0000. Each
such notice, request or other communication shall be effective when sent by
facsimile transmission to the facsimile number or when delivered by hand to the
address specified in this Section, provided that a facsimile transmission
shall be deemed to have been sent only so long as the transmitting machine has
provided an electronic confirmation of such transmission.
Section 17. Binding Effect; Third Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns, including any successor of the
Company by merger or any entity which purchases all or substantially all of the
assets of the Company (other than pursuant to the Asset Sale), and, solely in
respect to Section 12 hereof, to each of the Other Secured Creditors, each of
which (in respect of such Section 12 hereof) is an intended third-party
beneficiary hereof.
Section 18. Counterparts; Section Headings. This Agreement may
be executed in any number of counterparts, each of which is an original, but all
of which together constitute but one instrument. Except as otherwise indicated,
references herein to any "Section" means a "Section" of this Agreement, and
the section headings in this Agreement are for purposes of reference only and
shall not limit or define the meaning hereof.
Section 19. Assignment. The Henschels may sell, assign,
participate or otherwise transfer or dispose of all or any portion of the Notes
or the Note Obligations to any person or entity, subject to the prior written
consent of the Facility Lenders (the "Facility Lender Consent"), which consent
shall not be unreasonably withheld, and provided that any such person or entity
shall have assumed and agreed to be bound by the terms hereof by written
instrument in form reasonably satisfactory to the Company and the Facility
Lenders; provided further that, in the case of any transfer to an immediate
family member of the Henschels or a trust for the benefit of the immediate
family members of the Henschels, written confirmation from the Facility Lenders
and the Company that such person or entity has assumed and agreed to be bound by
the terms hereof by written instrument in form reasonably satisfactory to the
Company and the Facility Lenders shall constitute the Facility Lender Consent.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first above written.
IMC MORTGAGE COMPANY
By: /s/
-----------------------------------
Name:
Title:
XXXX XXXXXXXX
By: /s/
-----------------------------------
XXXXXXX X. XXXXXXXX
By: /s/
-----------------------------------
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II,
L.L.C., their General Partner
By: /s/
-----------------------------------
Name:
Title: Managing Member
Notice Address for Other Secured Creditors
Bear, Xxxxxxx & Co., Inc.
if to Bear, Xxxxxxx: Bear Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Xxxxxx X. Cedar, Tel.: (000) 000-0000, Fax: (000) 000-0000 and
Xxxx Xxxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, with a copy to;
Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.
Xxxxx X. Xxxxxxx, Esq., Tel.: (000) 000-0000, Fax: (000) 000-0000;
Deutsche Lenders
if to German American Corporation, to: German American Capital Corporation, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxxxxxx, Tel.:
(000) 000-0000, Fax: (000) 000-0000, with a copy to: Deutsche Bank A.G., as
agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxx Xxxxxxx, Tel.:
(000) 000-0000, Fax: (000) 000-0000, and Xxxxxxx Xxxxx, Tel.: (000) 000-0000,
Fax: (000) 000-0000; and in either case described in clause (i) or (ii) above;
with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn.: Xxxxx Xxxxxxx, Esq., Tel: (000) 000-0000, Fax: (000) 000-0000
Xxxxx Xxxxxx
if to Xxxxx Xxxxxx, to: PaineWebber Real Estate Securities, Inc., 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxxxxxxxxxx, Tel: (212)
000-0000, Fax: (000) 000-0000; with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxxx X. Xxxxxx, Esq., Tel:
(000) 000-0000; Fax: (000) 000-0000
BankBoston Facility
if to the Facility Lenders, as successors in interest to BankBoston, to: the
address provided for notice to the Facility Lenders pursuant to Section 16 of
the foregoing Agreement
