Execution Copy
FORBEARANCE AND INTERCREDITOR AGREEMENT
FORBEARANCE AND INTERCREDITOR AGREEMENT, dated as of October 12, 1998,
between IMC MORTGAGE COMPANY, a Florida corporation (the "Company"), GREENWICH
STREET CAPITAL PARTNERS II, L.P., a Delaware limited partnership, GREENWICH
FUND, L.P., a Delaware limited partnership, GSCP OFFSHORE FUND, L.P., a Cayman
Islands exempted limited partnership (each a "Facility Lender" and collectively,
the "Facility Lenders"), and BANKBOSTON, N.A. (the "Existing Lender").
Capitalized terms used in this Agreement without definition have the meanings
given to them in the Loan Agreement (as hereinafter defined) as such terms are
defined in the Loan Agreement on the date hereof.
RECITALS
A. The Company intends to enter into a Loan Agreement, dated as of
October 12, 1998 (as the same may be 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 will agree to extend to
the Company Commitments to loan, in the aggregate, $33,000,000 (the "Loans"),
subject to the terms and conditions set forth in the Loan Agreement, which Loans
are evidenced by the Notes and entitled to the benefit of certain guarantees and
security provided under certain of the other Loan Documents.
B. Pursuant to (i) a Bridge Loan and Security Agreement, dated as of
October 10, 1997, as amended from time to time, by and among the Company,
certain of its Subsidiaries and the Existing Lender (the "Bridge Loan
Agreement"), (ii) a Loan and Security Agreement, dated December 31, 1996, as
amended from time to time, by and among the Company, certain of its Subsidiaries
and the Existing Lender (the "1996 Agreement"), (iii) the Loan and Security
Agreement, dated March 18, 1994, as amended from time to time, by and among the
Company, certain of its Subsidiaries and the Existing Lender (the "Warehouse
Agreement"), (iv) the Loan Agreement, to be dated October 15, 1998, by and among
the Company, certain of its Subsidiaries and the Existing Lender (the "New
Facility"), and together with the Bridge Loan Agreement, the 1996 Agreement, the
Warehouse Agreement (the "Existing Loan Agreements"), and other related
agreements in favor of the Existing Lender (collectively with the Existing Loan
Agreements, the "Existing Loan Documents"), the Existing Lender has agreed to
provide financing to the Company from time to time, to enable the Company to
finance certain
mortgage loans and for other purposes provided therein; and the Company has
granted the Existing Lender a security interest in the New Cash Collateral to
secure its obligations under the New Facility and the Company and certain of its
Subsidiaries have granted a security interest in the Collateral (as hereinafter
defined) in order to secure their respective obligations under the Existing Loan
Documents (the "Existing Obligations").
C. In order to induce the Facility Lenders to enter into the Loan
Agreement, the Facility Lenders, the Company, and the Existing Lender have
agreed to enter into this Agreement (the "Forbearance Agreement"), whereby the
Existing Lender will agree, subject to the terms and conditions of this
Agreement, (i) to refrain from exercising certain rights and remedies it has
under the Existing Loan Agreements for a period of 45 days and, in certain
events, 90 days, (ii) to acknowledge and consent to the creation of a junior
lien on the Collateral, and (iii) to agree that following payment in full of
their obligations under the Existing Loan Agreements, the Existing Lender will
hold the Collateral for the benefit of the Facility Lenders or, if the
Collateral held is subject to any other prior liens of any other creditor for
the benefit of such other creditor.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Existing Lender
and the Facility Lenders agree as follows:
Section 1. Standstill. (a) Each of the Facility Lenders and the
Existing Lender agrees, subject to the terms of this Agreement, that for the
Standstill Period, it 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,
any payment obligations under the Existing Loan Documents or the Loan
Documents; provided that nothing in this Section 1 shall prohibit the
Facility Lenders from exercising their Exchange Option or the Existing
Lender from collecting payments in respect of the Standstill Advances;
(iii) make any Margin Calls or other demands for payment in
respect of, or additional collateral to secure the Existing
Obligations; provided, however, that this clause shall not adversely
affect the right of the Existing Lender to take any
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actions to preserve, protect or perfect its liens in the Collateral or
the New Facility Cash Collateral or the Existing Lender from
collecting payments in respect of the Standstill Advances;
(iv) declare a default or event of default under, or exercise
or enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Loan Document or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any
of the Collateral.
(b) The Standstill Period may be terminated by the Existing
Lender or the Facility Lenders by written notice to the Company and each other
Creditor upon the occurrence of any of the following:
(i) a failure by the Company under any Existing Loan
Agreement to make to the Existing Lender any scheduled payment of
interest, which failure continues unremedied for two days, or any
payment of principal due in respect of the Standstill Advances required
to be repaid in accordance with Section 8 hereof;
(ii) any intentional fraud or misrepresentation by the
Company;
(iii) immediately upon a failure of the Facility
Lenders to make an Advance (as defined in the Loan Agreement) under the
Loan Agreement following a request of the Company thereunder;
(iv) immediately in the event any Other Existing
Lender takes any of the actions described in Section 1(a) of its Other
Intercreditor Agreement, whether or not it shall have given notice of
termination of the Standstill Period;
(v) the conditions to the obligations of the Facility
Lenders to fund the Initial Advance shall not have been satisfied or
waived by the Facility Lenders and the Facility Lenders, if requested
by the Company to fund the Initial Advance, shall not have funded the
Initial Advance at or before 12:00 noon, New York City time, on October
16, 1998;
(vi) the condition contained in clause (y) of the
definition of "Standstill Period" to the extension of the Standstill
Period beyond the date which
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is 45 days from and after the date hereof shall not have been
satisfied on or before such date;
(vii) a Change of Control or payment of the Take-Out
Premium; or
(viii) an event shall occur and be continuing for a
period of ten Business Days which permits any holder of indebtedness
for borrowed money of the Company or any Subsidiary outstanding (other
than any Creditor) to accelerate the maturity of such indebtedness or
exercise remedies with respect to property of the Company or any
Subsidiary, without such indebtedness being paid or the rights of such
holder to take such action being waived, stayed or subjected to a
standstill or other agreement of such holder to forbear from exercising
remedies, reasonably satisfactory to the Creditors.
(c) The Standstill Period shall terminate automatically without notice
or other action by any Creditor upon the occurrence of any of the following:
(i) the Company or any Subsidiary shall consent to the
appoint ment 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 or any Subsidiary 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 or any Subsidiary
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 or any Subsidiary 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, agree ment, composition, extension or adjustment with its
creditors; or the Company or any Subsidiary 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
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Company, a receiver, trustee or liquidator of the Company or any Subsidiary or
of any substantial part of its property, or any substantial part of the property
of the Company or any Subsidiary 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 or any
Subsidiary 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 or any Subsidiary 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 any Subsidiary 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. Grant of Security Interest. (a) In order to secure full and
timely payment of the Obligations under the Loan Agreement, and to secure the
performance of all of the other obligations of the Company under the Loan
Documents, the Company and each Subsidiary hereby mortgages, pledges and assigns
and transfers to the Facility Lenders, and grants to the Facility Lenders, a
continuing perfected security interest in, and a lien in the Collateral (other
than the New Facility Cash Collateral). The Facility Lenders agree to release
their lien in respect of any whole loan mortgage, which is sold by the Company
to the Existing Lender for a purchase price not less than the advance rate in
respect of such mortgage and to the extent necessary to permit payments of
interest under the Existing Loan Documents and/or principal required hereunder
with respect to the Standstill Advances.
(b) The Facility Lenders agree for the benefit of the Existing Lender
that during the continuance of the Standstill Period and thereafter until the
earlier of (i) the satisfaction of the Existing Obligations in full, (ii) the
exercise by the Existing Lender of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill Period, the
Facility Lenders will not seek to attach, sequester, foreclose or otherwise
exercise remedies with respect to the Collateral or the New Facility Cash
Collateral, provided that nothing herein shall restrict the Facility Lenders
from commencing suit on its Notes or for payment of its Loan or enforcement of
any other obligation owing to it under the Loan Documents.
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Section 3. Acknowledgment and Priorities. The Existing Lender hereby
acknowledges and consents to the entrance by the Company into the Loan Documents
and the granting of the lien in the Collateral granted pursuant to Section 2;
provided, however, notwithstanding anything to the contrary contained in the
Loan Agreement, the Notes or any of the Loan Documents, any security interest in
or other rights with respect to any Collateral or the New Facility Cash
Collateral granted to secure the Existing Obligations under the Existing Loan
Agreements or otherwise has and shall have priority, to the extent of the
Existing Obligations, over any security interest in such Collateral granted
pursuant to the Loan Agreement or the other Loan Documents irrespective of:
(i) the time, order or method of attachment or perfection of
the security interest created by this Agreement, any Loan Agreement or
any Loan Document;
(ii) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in any Collateral;
(iii) anything contained in any filing or agreement to which
the Facility Lenders, the Company, the Collateral Agent under the
Security Documents now or hereafter may be a party, and
(iv) the rules for determining priority under the U.C.C. or
other laws governing the relative priorities of secured creditors.
(b) The Existing Lender hereby agrees that, following payment in full
of all the Existing Obligations hereunder, any Collateral, including any books
and records (including, without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, held by it shall be held for the
benefit of the Facility Lenders, provided that if such Collateral is then
subject to the prior lien of another creditor, the Existing Lender may hold it
for the benefit of such other creditor and the Facility Lenders as their
interests may appear. If the Existing Lender has elected not to hold such
Collateral following payment in full of the Existing Obligations, it shall
promptly forward any Collateral, including any books and records (including,
without limitation, computer files, printouts and other computer materials and
records) relating to the Collateral, as well as all proceeds and products of
such Collateral, to the Collateral Agent, provided that if such Collateral is
then subject to the prior lien of another creditor, the Existing Lender may
forward such Collateral, proceeds and products thereof to such other creditor
or, in the event of a dispute, to such party as a court of competent
jurisdiction may direct.
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Section 4. Reserved Rights. Notwithstanding anything in this Agreement
to the contrary, but subject to Section 8 hereof, the Company and the Facility
Lenders agree that this Agreement (except as expressly provided in Section 8)
shall in no manner impair any right of the Existing Lender or the Facility
Lenders under any Existing Loan Agreement or the Loan Agreement, respectively,
to enforce any condition precedent to any obligation it may have thereunder to
make future Advances or Facility Advances to the Company and its Subsidiaries,
nor shall this Agreement limit the right of the Existing Lender to make Margin
Calls in respect of the hedging transactions with respect to U.S. treasury
securities that the Company may have entered into with the Existing Lender
outside of the Existing Loan Documents. All rights and obligations of the
Existing Lender under the Existing Loan Documents to make Advances or not make
Advances and all rights of the Facility Lenders to make Facility Advances or not
make Facility Advances shall not be affected by this Agreement, except as
otherwise provided in Section 8 hereof.
Section 5. Additional Interest. In consideration of the Existing
Lender's entering into this Agreement, the Company shall pay the Existing Lender
additional interest of $1,000,000 payable in immediately available funds to such
account at such bank as the Existing Lender may direct upon the earlier of (i)
expiration of the Standstill Period or (ii) repayment of the Existing
Obligations in full.
Section 6. Conditions Precedent. The obligations of the parties hereto
under this Agreement to carry out their obligations hereunder shall be subject
to the condition that each of the other existing Lenders listed on Schedule I
(the "Other Existing Lenders") shall have entered into intercreditor agreements
substantially the same as this Agreement (the "Other Intercreditor Agreements"),
and if any Other Existing Lender shall have entered into an intercreditor
agreement which by its terms is, in the reasonable judgment of the Existing
Lender, more favorable to such Other Existing Lender, it shall be a condition to
the performance of the Existing Lender hereunder that the Company and the
Facility Lenders amend this Agreement to provide the Existing Lender with the
benefit of such more favorable terms (other than any fee payable pursuant to
Section 5 hereof or of any Other Intercreditor Agreement or any other economic
consideration payable to any Other Existing Lender under any other agreement).
The Company shall furnish the Existing Lender complete and correct copies of
each such Other Intercreditor Agreement.
Section 7. Certain Definitions.
"Advance" means any advance made by the Existing Lender under the
Existing Loan Agreements.
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"Change of Control" means the occurrence of any of the following events
(other than as a consequence of the issuance of the Preferred Stock to the
Facility Lenders upon exercise of the Exchange Option):
(i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has
the right to acquire within one year), directly or indirectly,
of more than 50% of the Voting Stock of the Company; or
(ii) the Company consummates any sale, lease,
exchange or other disposition of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a
whole, in any transaction or series of transactions not in the
ordinary course of business; or
(iii) the Company engages in a merger, consolidation
or similar business combination with any third party.
"Collateral" means (i) all of the Company's or any Subsidiary's rights
to payment of money arising out of, related to, or created in connection with
(whether such rights are classified under the applicable Uniform Commercial Code
as general intangibles, accounts, certificated securities, uncertificated
securities or otherwise): (a) all Securitization Receivables and any other
interest of the Company or any Subsidiary, in the Securitization Transactions
(other than cash paid to or for the account of the Company in respect of the
transfer by the Company or any Subsidiary of mortgage loans to the Trustee in
respect of a Securitization Transaction) and similar rights or interests of the
Company or any Subsidiary, (b) all payments to be paid to the Company or any
Subsidiary pursuant to such Securitization Transactions (other than cash paid to
or for the account of the Company in respect of the transfer by the Company of
mortgage loans to the Trustee in respect of a Securitization Transaction) and
(c) all Servicing Fees, Servicing Rights, Servicing Advances and any similar
rights or interests of the Company or any Subsidiary in respect of any of the
foregoing (a) through (c); (ii) all business records, computer tapes, software,
microfiche, or recorded data of any kind or nature, regardless of the medium,
necessary to identify, locate and collect the foregoing; (iii) all cash from
time to time deposited in any deposit account of any of the Company or any
Subsidiary with the Existing Lender, in connection with this Agreement,
including, without limitation, the Loan Collateral Account; (iv) all other
collateral described in Schedule II hereto, including, without limitation, all
accounts, inventory, equipment, general intangibles, investment property
(including the capital stock of the Subsidiaries),
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(v) any other right, interest or property of the Company or any Subsidiary now
or hereafter securing the performance by the Company or any Subsidiary of the
Existing Obligations; and (vi) any and all replacements, substitutions,
distributions on or proceeds of any and all of the foregoing.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Creditor" means any of the Facility Lenders, the Existing Lender or
any Other Existing Lender.
"Facility Advance" means any advance made by the Facility Lenders under
the Loan Agreement.
"Letter of Intent" means a non-binding letter of intent between the
Company and one or more creditworthy Persons having the financial and other
capacity to consummate the transaction contemplated thereby, providing for (i) a
merger, consolidation, share exchange, business combination or other similar
transaction involving the Company in which the outstanding Common Stock is
converted into the right to receive cash or securities of a Qualifying Issuer;
(ii) a sale, conveyance, lease, exchange, transfer or other disposition of all
or substantially all the assets of the Company and its Subsidiaries, taken as a
whole, in a single transaction or in a series of transactions outside of the
ordinary course of business in return for cash or securities of a Qualifying
Issuer; or (iii) a tender offer or exchange offer for any and all of the
outstanding shares of Common Stock in return for cash or securities of a
Qualifying Issuer, in each case which, upon consummation of the transactions
contemplated thereby, would result in a Change of Control and which letter of
intent contemplates the repayment of all of the Existing Obligations in full.
"Loan Collateral Account" means the demand deposit account established
by the Company with the Existing Lender pursuant to the Existing Loan Agreements
for collection of the cash flow from the Collateral (other than cash flow from
Servicing Rights) and into which the Company has instructed all relevant parties
to deposit all Cash Flow from Collateral (other than cash flow from Servicing
Rights).
"Margin Call" means the right of the Existing Lender or the Facility
Lender to give notice to require the Company to transfer to the Existing Lender
or the Facility Lender cash or additional Collateral.
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"New Facility Cash Collateral" means cash in an amount not less than
110% of the amount of any Standstill Advance outstanding under the New Facility
to be deposited with, and pledged to, the Existing Lender to secure the New
Facility.
"Qualifying Issuer" means an issuer the outstanding common stock or
other common equity securities of which is listed on the New York Stock Exchange
or NASDAQ National Market System.
"Securitization Receivables" means all rights of the Company or any
Subsidiary to receive payments (including, without limitation, assets classified
as residual strips, certificates, or interest only strips on the Company's
financial statements) under a Securitization Transaction but excluding rights to
receive payments in respect of Servicing Fees.
"Securitization Transaction" means any transaction, however named,
between the Company or any Subsidiary and any one or more purchasers and/or
investors which provides for the monetization of a discrete pool of mortgage
loans and/or mortgage notes through debt securities or ownership interests
issued by a special purpose vehicle supported or backed by mortgage loans and/or
mortgage notes that have been transferred to the special purpose vehicle by the
Company or any such Subsidiary.
"Servicing Advances" means all remittances advanced by the Company or
any Subsidiary to a Trustee under the Company's or any such Subsidiary's
servicing agreement, and the right to receive a payment of such advances.
"Servicing Fees" means all payments arising out of, related to, or
created in connection with a Person's duties and obligations as a servicer
pursuant to the terms of a Securitization Transaction.
"Servicing Rights" means all of any Company's and any Subsidiary's
rights to payment arising out of, related to, or created in connection with its
role as servicer under any of the Securitization Transactions or in connection
with its performance of a similar role with respect to any other transaction or
arrangement.
"Standstill Advances" has the meaning given in Section 8.
"Standstill Commitment" has the meaning given in Section 8.
"Standstill Period" means a period ending on the first to occur of (i)
the later of (x) 45 days from and after October 12, 1998 and (y) if the Company
shall have,
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on or before the 45th day from and after October 12, 1998, entered into a Letter
of Intent and delivered (by facsimile transmission or otherwise in accordance
with Section 16 hereof) to each Creditor a complete and correct copy thereof,
together with an Updated Business Plan showing the projected working capital
requirements of the Company for the period ending on the expected date of
closing of the transaction contemplated by the Letter of Intent and commitments
from creditworthy parties which, in the aggregate, are sufficient to satisfy the
Company's projected working capital requirements during such period, 90 days
from and after October 12, 1998, or (ii) termination of the Standstill Period in
accordance with Section 1(b) or 1(c) hereof.
"Subsidiary" or "Subsidiaries" means those Subsidiaries which are
signatories hereto and any other entities which hereafter become a subsidiary of
the Company (or of any of the Company's Subsidiaries).
"Trustee" means the trustee under the trust established for the benefit
of the purchasers under a Securitization Transaction.
Section 8. Advances under the Loan Agreement and Standstill Advances
under the Existing Loan Agreements; etc. (a) During the Standstill Period, the
Existing Lender will make Advances ("Standstill Advances") from time to time at
the request of the Company up to the sum of Two Million Five Hundred Thousand
Dollars ($2,500,000) as a bridge loan under the 1996 Loan Agreement and Five
Million Dollars ($5,000,000) under the New Facility (collectively, the
"Standstill Commitment"), subject to compliance with the conditions to such
Standstill Advances under the 1996 Loan Agreement and the New Facility,
respectively, which New Facility shall contain terms and conditions mutually
satisfactory to the parties hereto, provided that during the Standstill Period
the absence of a payment default in respect of the Existing Loan Agreements
(other than in respect of required repayments of Standstill Advances as
hereinafter provided) or any default or event of default thereunder in respect
of the indebtedness owing to any Other Existing Lender or the Facility Lenders
shall not be a condition to the Existing Lender's obligation to make such
Standstill Advances. Notwithstanding the foregoing, the Existing Lender shall
not be obligated to make Standstill Advances in the event of the occurrence of
any of the events described in Section 1(b) or 1(c) hereof (without regard to
any grace period provided therein). Standstill Advances under the New Facility
will be made on a revolving basis and Standstill Advances may be repaid and, in
the case of Standstill Advances under the New Facility, reborrowed from time to
time by the Company, provided that the Existing Lender's obligations to make
Standstill Advances will be conditioned on, and the Company agrees that, such
Standstill Advances will be made, repaid and, in the case of Standstill Advances
under the New Facility, reborrowed only pro rata with the Facility
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Advances under the Loan Agreement based on the Existing Lender's and Facility
Lenders' respective Standstill Commitment and Commitments. Interest shall accrue
on such Advances at the rate of 10% per annum except that upon the occurrence
and during the continuance of events described in Section 1(b) or (c) herein,
interest shall accrue at 14%.
(b) The Company shall give prior written notice to the Existing Lender
and the Facility Lenders of each request for a Facility Advance under Section
2.10 of the Loan Agreement and each request for a Standstill Advance
contemporaneously with making such request to the Facility Lenders and the
Existing Lender. The Company shall give written notice to the Existing Lender
and the Facility Lenders immediately upon either the funding of a Facility
Advance or a Standstill Advance, as applicable (together with such evidence
thereof as the Existing Lender, in the case of a Facility Advance, or the
Facility Lenders, in the case of a Standstill Advance, may reasonably request)
or the refusal of Facility Lender to fund such Facility Advance or of the
Existing Lender to fund such Standstill Advance, as the case may be.
(c) Except as provided in Section 8(a), the Company shall not be
entitled to receive, and the Existing Lender shall have no obligation to make
any loans and advances under any of the Existing Loan Documents.
(d) The New Facility shall be secured by the Collateral and the New
Facility Cash Collateral.
(e) The Company shall give each Creditor prompt written notice of any
event which upon notice or lapse of time or both would constitute an event of
default in respect of any of its outstanding Debt.
(f) Notwithstanding the provisions of the Existing Loan Agreement,
during the Standstill Period, the Company shall pay interest on the principal
amount outstanding under the Existing Loan Agreements to the Existing Lender
weekly on Friday of each week or, if Friday is not a Business Day, on the next
Business Day.
(g) During the Standstill Period (without limiting any obligations
under the Existing Loan Documents), the Company shall deliver to the Existing
Lender at the same time it delivers to the Facility Lenders, the Disclosure
Letter, the Three-Month Business Plan, any Updated Business Plan and all other
financial statements and reports required to be provided to the Facility Lenders
pursuant to Section 5.5 of the Loan Agreement. The Company shall cooperate with
the Existing Lender and its financial consultants and provide the Existing
Lender and such consultants with such information
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and the opportunity to consult with its executive officers and accountants as
the Existing Lender may reasonably request.
Section 9. Acknowledgment of Obligations. The Company and each
Subsidiary acknowledges that, as of the date hereof, the principal balance of
the obligations under the Existing Loan Agreements are as follows: (a) the
Bridge Loan Agreement: $45,000,000; (b) the 1996 Agreement: $42,500,000; and (c)
the Warehouse Agreement: $0. The Company and each Subsidiary acknowledges that
its obligations under the Existing Loan Documents and the liens on the
Collateral securing the Existing Obligations remain in full force and effect,
that the Existing Obligations under the 1996 Agreement and the Bridge Loan
Agreement matured on October 10, 1998 and have not been paid, and that the
Company and each such Subsidiary have no defenses, counterclaims or offsets to
its obligations under the Existing Loan Documents and that such liens are valid,
perfected and enforceable. The Company and each Subsidiary hereby waives the
application of the automatic stay in any bankruptcy proceeding in respect of the
Existing Obligations and the obligations under the Loan Documents and the
Company, each Subsidiary and each Creditor consents to the modification of the
stay to permit the exercise by the Existing Lender or the Facility Lenders of
their rights in respect of the Collateral, provided that the foregoing shall not
be construed to modify the provisions of Sections 2(b) and 3 hereof. This
document shall not constitute a waiver, amendment or modification of the
Existing Loan Documents, the Existing Obligations, any defaults by the Company
under the Existing Loan Documents or the Loan Documents and shall not be
construed as a waiver or consent to any future action on the part of the Company
or any Subsidiary that would require a waiver or consent of the Existing Lender
or the Facility Lenders. The Company and each Subsidiary hereby releases the
Existing Lender, its officers, directors and participants from any and all
claims in respect of the Existing Loan Documents and in respect of actions taken
or not taken on or prior to the date of execution and delivery hereof.
Section 10. 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 Existing Lender, the Other Existing Lenders and the Facility Lenders. Any
such waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
Section 11. 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.
13
Section 12. 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 13. 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 COMMONWEALTH OF
MASSACHUSETTS WITHOUT GIVING EFFECT OT 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 SUFFOLK, COMMONWEALTH OF
MASSACHUSETTS 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 14. Expenses. In addition to the foregoing, the Company will
also reimburse the Existing Lender and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective obligations and duties hereunder and, to the extent the
Existing Loan Documents so provide, under the Existing Loan Documents, and for
any reasonable fees and expenses of legal or other professional advisors to the
Existing Lender and the Facility Lenders engaged in connection with the
preparation and negotiation of this Agreement.
14
Section 15. Agreement May Constitute Financing Statement. The
Company and the Existing Lender consents to the filing of this Agreement or a
photocopy thereof as a financing statement under the UCC as in effect in any
jurisdiction in which the Facility Lenders may determine such filing to be
necessary or desirable.
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 the other party and each other Creditor.
(a) if to the Lender, 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, 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 Existing
Lender: BankBoston, N.A., 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
Attn.:Xx. Xxxxxxxx Xxxxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000; with a
copy to Xxxxxx & Xxxxxxxxxx, Attn.: Xxxxx X. Xxxxxx, Esq., Tel: (000) 000-0000;
Fax: (000) 000-0000; and if to any of the Other Existing Lenders, to such person
and at the address and facsimile number provided in the corresponding section of
the Other Intercreditor Agreement for notice to such Other Existing Lender. 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 Sec tion 16 or such section of such Other
Intercreditor Agreement, 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 and to each of the other Creditors,
each of which is an intended third-party beneficiary hereof. Neither the
Facility Lenders nor the Existing Lender may sell, assign, participate or
otherwise transfer or dispose of all or any portion of the Loan or the Existing
Obligations to any Person unless such Person shall have assumed and agreed to be
bound by the terms hereof by written instrument in form reasonably satisfactory
to the Company and each other Creditor.
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
15
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.
16
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:
BANKBOSTON, N.A.
By /s/
-------------------------
Name:
Title:
00
XXXXXXXXX XXXXXX CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By /s/
-------------------------
Name:
Title:
18
This Forbearance and Intercreditor Agreement
is hereby acknowledged and agreed to by:
IMC CORPORATION OF AMERICA
By /s/
----------------------
Name:
Title:
IMC CREDIT CARD, INC.
By /s/
----------------------
Name:
Title:
IMC MORTGAGE COMPANY CANADA, LTD.
By /s/
----------------------
Name:
Title:
19
AMERICAN HOME EQUITY CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT LIMITED PARTNERSHIP
By /s/
----------------------
Name:
Title:
ACG FINANCIAL SERVICES (IMC), INC.
By /s/
----------------------
Name:
Title:
AMERICAN MORTGAGE REDUCTION, INC.
By /s/
----------------------
Name:
Title:
20
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
COREWEST BANC
By /s/
----------------------
Name:
Title:
EQUITY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
IMCC INTERNATIONAL, INC.
By /s/
----------------------
Name:
Title:
MORTGAGE AMERICA (IMC), INC.
By /s/
----------------------
Name:
Title:
21
NATIONAL LENDING CENTER, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING CENTER TILT, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING GROUP, INC.
By /s/
----------------------
Name:
Title:
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By /s/
----------------------
Name:
Title:
22
Schedule I to the Forbearance
and Intercreditor Agreement
Other Existing Lenders
Master Repurchase Agreement, dated as of March 29, 1996, as amended from time to
time, by and among Bear Xxxxxxx Home Equity Trust and the Company and certain of
the Company's Subsidiaries.
Master Repurchase Agreement, dated as of May 1, 1997 Between Bear, Xxxxxxx
International Limited and Industry Mortgage Company, L.P.
Institutional Account Agreement, dated October 23, 1996, between and among
Industry Mortgage Company, L.P. and Bear Xxxxxxx.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as lender.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and Aspen Funding
Corp., as lender
Loan and Security Agreement, dated as of February 28, 1997, between IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Industry Mortgage Company, L.P., Corewest
Banc, IMC Investment Corp., and IMC Investment Limited Partnership, as
borrowers, and Xxxxx Xxxxxx Real Estate Securities, Inc., as lender.
Schedule II to the Forbearance and
Intercreditor Agreement
Additional Collateral
[see attached description]
2
