Exhibit 10.82
SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT
(Deutsche Lenders)
SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of
November 10, 1999, 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, GREENWICH
STREET EMPLOYEES FUND, L.P., a Delaware limited partnership, and TRV EXECUTIVE
FUND, L.P., a Delaware limited partnership (each a "Facility Lender" and
collectively, the "Facility Lenders"), and GERMAN AMERICAN CAPITAL CORPORATION
(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 (or
as amended by any amendment thereto approved by the Existing Lender).
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 the Notes and entitled to the benefit of certain guarantees and
security provided to the Facility Lenders or to GSCP, as collateral agent (the
"Collateral Agent") under certain of the other Loan Documents.
B. 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
C. Pursuant to (i) the Loan and Security Agreement, dated March 17,
1998, as amended from time to time, by and among the 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 the Existing Lender, as lender (the "GAC Agreement"),
and (ii) the Loan and Security Agreement, dated March 17, 1998, as amended from
time to time, by and among the 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 the Existing Lender, as successor, by
assignment from Aspen Funding Corp. as lender (the "Aspen Loan Agreement", and
collectively with the "GAC 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
have agreed to provide on an uncommitted basis, collateralized interim 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 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").
D. The Company entered into an Acquisition Agreement (the
"Acquisition Agreement"), dated as of February 19, 1999, by and among each of
the Facility Lenders and the Company, pursuant to which the Company would issue
and deliver to the Facility Lenders common stock, par value $0.001 per share, of
the Company representing approximately 93.5% of the Common Stock outstanding
after such issuance.
E. The Company has (i) terminated the Acquisition Agreement and
(ii) entered into an Asset Purchase Agreement, dated as of July 13, 1999, as
amended by Addendum No. 1 thereto, dated September 7, 1999 and a Delinquency and
Servicing Advance Purchase Agreement (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").
F. The Company, the Facility Lenders and the Existing Lender have
previously entered into an Intercreditor Agreement, dated as of October 12,
1998, amended and restated by the Amended and Restated Intercreditor Agreement,
dated as of February 18, 1999 and amended further by Amendment No. 1 to Amended
and Restated Intercreditor Agreements, dated as of March 31, 1999, and letter
agreements dated as of July 15, 1999, August 11, 1999, September 14, 1999 and
October 15, 1999 (as so amended and restated, the "Original Intercreditor
Agreement"). In connection with the entry by the Company into the Asset Purchase
Agreement, the Facility Lenders, the Company and the Existing Lender have agreed
to enter into this agreement amending and restating the Original Intercreditor
Agreement (as so amended and restated, the "Agreement").
G. 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 the Xxxxxxxx Intercreditor Agreement
(defined below), the "NH Note") to Xxxx Xxxxxxxx ("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 the Xxxxxxxx
Intercreditor Agreement, the "JH Note", and, together with the NH Note, the
"Notes") to Xxxxxxx X. Xxxxxxxx ("JH", and together with NH, the "Henschels"),
pursuant to which the Company has certain unsecured payment obligations to the
Henschels (the "Xxxxxxxx Note Obligations").
H. The Company, the Facility Lenders, NH and JH have entered into
an Intercreditor Agreement, dated as of the date hereof (the "Xxxxxxxx
Intercreditor Agreement"), pursuant to which the Henschels have agreed not to
take certain actions specified therein and the Company has agreed to make
certain payments to amortize the Xxxxxxxx Note Obligations as provided therein.
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 to amend and restate the Original Intercreditor
Agreement to read in its entirety 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;
(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 actions to preserve, protect or
perfect its liens in the Collateral;
(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, except as provided in Section 8(f) hereof.
(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 the Existing Loan Agreement
to make to the Existing Lender any scheduled payment of interest, which
failure continues unremedied for two days;
(ii) any intentional fraud or misrepresentation by the
Company;
(iii) immediately in the event any Other Existing Lender takes
any of the actions described in Section 1(a) of its Other Intercreditor
Agreement or either of the Henschels takes any of the actions described
in Section 1(a) of the Xxxxxxxx Intercreditor Agreement, or, in the case
of the Existing Lender, immediately in the event any Facility Lender
takes any of the actions described in Section 1(a) of this Agreement, or,
in the case of the Facility Lenders, immediately in the event the
Existing Lender takes any of the actions described in Section 1(a) of
this Agreement or either of the Henschels takes any of the actions
described in Section 1(a) of the Xxxxxxxx Intercreditor Agreement, in
each case whether or not it shall have given notice of termination of the
Standstill Period;
(iv) a Change of Control or payment of the Take-Out Premium,
except to the extent payable in accordance with Section 5 hereof;
(v)an event shall occur and be continuing for a period of ten
Business Days which permits (x) any holder of indebtedness for borrowed
money of the Company or the Designated Subsidiary outstanding (other than
the Company or any Creditor or Residential Funding Corporation) to
accelerate the maturity of such indebtedness or (y) any holder of such
indebtedness or any holder of any guarantee or other obligation of the
Company or the Designated Subsidiary to exercise remedies with respect to
property of the Company or the Designated Subsidiary
(other than the Company or Residential Funding Corporation solely with
respect to the Mortgage Loans held by it as collateral for its existing
loan), 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;
(vi) the Company shall, at any time on or after the date of
the closing of the Asset Sale, repay all or any portion of the Loans,
except any such repayment of the Loans in accordance with Section 5
hereof;
(vii) the Company shall fail to make any payment required to
be made in accordance with Section 5 or 15 hereof;
(viii) the Company shall incur or pay any Operating Expenses
or incur or pay any obligations, except as expressly contemplated hereby
or by the Monthly Statement; and
(ix) the Company shall breach the covenant set forth in
Section 8(g) or Section 5(h) hereof.
(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 Designated Subsidiary 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 or any Designated 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
Designated 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 Designated Subsidiary shall file an
answer admitting the material allegations of a petition filed against
the Company or such Designated Subsidiary 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
or any Designated 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 Company, a receiver, trustee or liquidator of the
Company or any Designated Subsidiary or of any substantial part of their
respective property, or any substantial part of the property of the
Company or any Designated 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
Designated 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 Designated
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 windingup of corporations which may apply to the
Company or any Designated Subsidiary, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the
Company or any Designated Subsidiary or of any substantial part of their
respective 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. The
Facility Lenders agree to release their lien in respect of any Pledged Loan,
which is sold by the Company (i) to the Existing Lender for a purchase price not
less than the advance rate (or, in the case of any Sixty Day Mortgage Loans or
Ninety Day Mortgage Loans, at not less than 80% or 68.6% of the principal
outstanding on such Mortgage Loans, respectively) in respect of such Pledged
Loan, (ii)
pursuant to Section 8(f) hereof, (iii) pursuant to a securitization of Mortgage
Loans, or (iv) in a sale to an unaffiliated third party.
(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) 91 days after 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, levy on or otherwise exercise remedies with respect to the
Collateral, provided that nothing in this Section 2(b) shall restrict the
Facility Lenders from commencing suit on its Notes or for payment of its Loan,
the BankBoston Debt, the Facility Lender Advances or enforcement (other than by
exercising remedies with respect to the Collateral) of any other obligation
owing to it under the Loan Documents or otherwise by the Company.
Section 3. Acknowledgment and Priorities. (a) 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, the parties
hereto acknowledge and agree that any security interest in or other rights with
respect to any Collateral granted to secure the Existing Obligations under the
Existing Loan Agreements or otherwise has and shall have priority over any
security interest in such Collateral granted pursuant to this Agreement, 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, the 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, or 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, and the Company acknowledges,
that, promptly following the expiration of 91 days after 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.
(c) Nothing contained in this Agreement shall alter or impair the
Existing Lender's rights under the Existing Loan Documents from and after the
termination of the Standstill Period in accordance herewith or be interpreted to
mean that the Existing Lender has any obligation under the Existing Loan
Documents or otherwise to return any proceeds received on a sale or deemed sale
of any Pledged Securities or Pledged Loan to the Company or any Subsidiary,
except as expressly provided herein.
(d) Each of the parties hereto consents to the transactions
contemplated by the Asset Purchase Agreement.
Section 4. Reserved Rights. (a) Notwithstanding anything in this
Agreement to the contrary, the Company and the Facility Lenders agree that this
Agreement shall in no manner impair any right of the Existing Lender under the
Existing Loan Agreements to enforce any condition precedent to any obligation it
may have thereunder to make future 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 shall not be affected by this Agreement.
(b) In addition and notwithstanding anything to the contrary contained
herein (but subject to Section 8(f) hereof), this Agreement shall not (i) apply
to any Advances made from and after the date hereof, or any other obligation of
the Company or any of its Subsidiaries to the Existing Lender or any of its
Affiliates incurred from and after the
date hereof or (ii) limit the rights of the Existing Lender or any Affiliate
thereof (x) subject to Section 8(f) hereof, to purchase mortgage loans from the
Company or any of its Subsidiaries, (y) to receive principal and/or interest at
the applicable mortgage rate on mortgage loans purchased by such Existing Lender
or any such Affiliate from the Company or any of its Subsidiaries or (z) to sell
mortgage loans to the Company or any of its Subsidiaries.
Section 5. Amortization. During the Standstill Period, the following
provisions contained in this Section 5 shall apply:
(a) From and after the date this Agreement becomes effective and
prior to the date of the closing of the Asset Sale, within five days following
receipt by the Existing Lender each month of Available Cash Flow from
Securitization Receivables, the Existing Lender shall apply ninety percent (90%)
of such Available Cash Flow from Securitization Receivables to the repayment of
principal of the Existing Obligations under the Existing Loan Documents secured
by the Pledged Securities generating such Available Cash Flow from
Securitization Receivables and shall remit the balance of such Available Cash
Flow from Securitization Receivables to the Company.
(b) Upon the closing of the Asset Sale, the Company shall pay to
the Existing Lender the sum of (x) its Pro-Rata Share of the product of (A)
seventy percent (70%) and (B) the Transaction Proceeds Amount, plus (y) the
Warehouse Debt Shortfall with respect to the Existing Lender and minus (z) the
Xxxxxxxx Make-up Amount, in each case to be applied to repayment of principal of
the Existing Obligations under the Existing Loan Documents.
(c) Upon the closing of the Asset Sale, the Company shall pay to
the Facility Lenders and the Henschels, as their interests may appear pursuant
to the Xxxxxxxx Intercreditor Agreement, the sum of (x) the product of (A)
thirty percent (30%) and (B) the Transaction Proceeds Amount plus (y) the
product of (A) three and (B) the Xxxxxxxx Make-up Amount, in the case of the
Facility Lenders, to be applied to repayment of principal of the BankBoston Debt
until such Debt is paid in full, and then to repayment of the Loans and any
other obligations due the Facility Lenders, and, in the case of the Henschels,
to be applied to repayment of the Xxxxxxxx Note Obligations.
(d) Upon the closing of the Asset Sale, the Company shall pay to
the Facility Lenders the sum of the CMC Advance Proceeds and the Delinquent
Interest Advance Shortfall Amount, in each case to be applied to repayment of
all obligations owing in
respect of any outstanding Facility Lender Advances.
(e) Upon the closing of the Asset Sale, the Company shall pay or
reimburse the Existing Lender and the Facility Lenders for any Transaction
Expenses and Professional Fees then due and owing.
(f) Upon the closing of the Asset Sale, the Company shall cause CMC
to pay the Tax Escrow Amount to the escrow agent under the Tax Escrow Agreement
for deposit thereunder and application in accordance with the terms thereof.
(g) Upon the closing of the Asset Sale, the Company shall cause CMC
to pay the Securitization Escrow Amount to the escrow agent under the
Securitization Escrow Agreement for deposit thereunder and application in
accordance with the terms thereof.
(h) Upon the closing of the Asset Sale, the Company shall cause CMC
to deposit a portion of the sale proceeds in an amount equal to the NLC Amount
in a separate bank account with a bank reasonably satisfactory to the Creditors,
solely for the benefit of the Creditors (and not for the benefit of the
Company), and not commingled with any funds of the Company, which shall be
applied from time to time solely for the purpose of making advances for
warehouse financing to National Lending Center, Inc., such warehouse financing
to mature not later than 90 days after the closing of the Asset Sale and to be
on terms and pursuant to documentation reasonably satisfactory to the Creditors,
which financing shall provide for all repayments in respect of such financing to
be paid directly for deposit to such account. Upon the date which is 90 days
after the closing of the Asset Sale and from time to time thereafter upon
receipt of the net proceeds of such warehouse financing, the amount on deposit
in such account shall, pursuant to irrevocable instructions given by the Company
at or before the closing of the Asset Sale, be immediately paid to the escrow
agent under the NLC Escrow Agreement for deposit and application thereunder.
(i) Upon the closing of the Asset Sale, the Company shall apply the
SafeCo Shortfall Amount to payment of the insurance premiums payable to SafeCo.
(j) Upon the closing of the Asset Sale, the Company shall pay to
the Existing Lender and the Facility Lenders any accrued and unpaid interest on
the Existing Obligations, the BankBoston Debt and the Loan Agreement to but not
including the date of such closing.
(k) Any Reserve Release shall be made by the relevant escrow agent
pursuant to the Securitization Escrow Agreement, the NLC Escrow
Agreement or the Tax Escrow Agreement, as the case may be, to the Existing
Lender, the Other Existing Lenders, the Facility Lenders and the Henschels, as
their interests may appear pursuant to such escrow agreements.
(l) Promptly upon receipt by the Company of any Mortgage Sale
Excess Proceeds, the Company shall pay (x) to the Existing Lender an amount
equal to its Pro-Rata Share of the product of seventy percent (70%) and any
Mortgage Sale Excess Proceeds, to be applied to repayment of principal of the
Existing Obligations under the Existing Loan Documents, and (y) to the Facility
Lenders and the Henschels, as their interests may appear pursuant to the
Xxxxxxxx Intercreditor Agreement, the product of thirty percent (30%) and any
Mortgage Sale Excess Proceeds, in the case of the Facility Lenders, to be
applied to repayment of principal of the BankBoston Debt until such Debt is paid
in full, and then to repayment of the Loans and any other obligations due the
Facility Lenders, and, in the case of the Henschels, to be applied to repayment
of the Xxxxxxxx Note Obligations.
(m) Promptly upon the sale of any Mortgage Loan securing (or
purchased subject to a repurchase obligation comprising) any Existing
Obligations that gives rise to a Mortgage Sale Shortfall, the Company shall pay
the Existing Lender the amount of such Mortgage Sale Shortfall.
(n) Within five days following receipt by the Existing Lender of
Available Cash Flow from Securitization Receivables during the month in which
the closing of the Asset Sale occurs, the Existing Lender shall (a) apply ninety
percent (90%) of the Available Cash Flow from Securitization Receivables for
such month to the repayment of principal of the Existing Obligations under the
Existing Loan Documents and (b) remit the balance of such Available Cash Flow
from Securitization Receivables to the Facility Lenders for payment to the
Facility Lenders and the Henschels, as their interests may appear pursuant to
the Xxxxxxxx Intercreditor Agreement, in the case of the Facility Lenders, for
application to the repayment of principal of the BankBoston Debt, until such
Debt is paid in full, and then to repayment of principal of the Loans and any
other obligations due the Facility Lenders, and, in the case of the Henschels,
to be applied to repayment of the Xxxxxxxx Note Obligations.
(o) Not later than the 15th calendar day (or the next business day,
if the 15th is not a business day) after the end of each calendar month ending
on or after the closing of the Asset Sale, the Company shall prepare and deliver
to the Existing Lender a Monthly Statement and, following the receipt of such
Monthly Statement by the Existing Lender, the Available Post-Transaction Cash
Flow with respect to such month shall be distributed in each such month as
follows:
(i) within five days following receipt by the Existing Lender of the
Monthly Statement for such month but not sooner than one business
day after receipt by the Existing Lender of the Available Cash Flow
from Securitization Receivables paid to the Existing Lender that
month, the Existing Lender or the Collateral Agent, if it shall
have received the Collateral pursuant to Section 3(b) hereof, shall
remit to the Company the Existing Lender's Allocable Share of the
Monthly Cash Flow Shortfall Amount, if any, from such Available
Cash Flow from Securitization Receivables, if any; provided , that
in the event there is a dispute (including any dispute arising from
the failure of the requisite Creditors to approve any Monthly
Statement) with respect to the calculation of the Monthly Cash Flow
Shortfall Amount, the Existing Lender shall remit to the Company
such portion of the Monthly Cash Flow Shortfall Amount as
calculated by the Company as is not in dispute and shall remit any
balance promptly upon resolution of such dispute (it being
understood and agreed that the Existing Lender's obligation under
this clause (i) for any month shall not exceed the Available Cash
Flow from Securitization Receivables actually received that month);
(ii) until such time as the Existing Obligations have been repaid in
full:
(A) the Existing Lender shall (a) apply ninety percent (90%) of the
Available Cash Flow from Securitization Receivables for such month
remaining after the payment, if any, of the Existing Lender's
Allocable Share of the Monthly Cash Flow Shortfall Amount pursuant
to subsection (i) above, to the repayment of principal of the
Existing Obligations under the Existing Loan Documents and (b)
remit the balance, if any, of such Available Cash Flow from
Securitization Receivables to the Facility Lenders for payment to
the Facility Lenders and the Henschels, as their interests may
appear pursuant to the Xxxxxxxx Intercreditor Agreement, in the
case of the Facility Lenders, for application to the repayment of
principal of the BankBoston Debt, until such Debt is paid in full,
and then to repayment of principal of the Loans and any other
obligations due the Facility Lenders, and, in the case of the
Henschels, to be applied to repayment of the Xxxxxxxx Note
Obligations; and
(B) the Company shall (a) remit to the Existing Lender for
application to the repayment of principal of the Existing
Obligations under the Existing Loan Documents the Existing Lender's
Allocable Share of an amount equal to 90%
of the Monthly Free Cash Flow Amount, if any, and (b) remit an
amount equal to 10% of the Monthly Free Cash Flow Amount to the
Facility Lenders for payment to the Facility Lenders and the
Henschels, as their interests may appear pursuant to the Xxxxxxxx
Intercreditor Agreement, in the case of the Facility Lenders, to be
applied to repayment of principal of the BankBoston Debt until such
Debt is paid in full, and then to repayment of principal of the
Loans and any other obligations due the Facility Lenders, and, in
the case of the Henschels, to be applied to repayment of the
Xxxxxxxx Note Obligations.
(iii) after such time as the Existing Obligations shall have been repaid
in full and until all obligations due to the Facility Lenders and
the Henschels have been paid in full:
(A) the Existing Lender, or the Collateral Agent, if it shall have
received the Collateral pursuant to Section 3(b) hereof, shall
remit the Existing Lender's Allocable Share of the Monthly Cash
Flow Shortfall Amount to the Company as provided in subsection (i)
above and remit 100% of the Available Cash Flow from Securitization
Receivables remaining after the remittance, if any, in respect of
the Monthly Cash Flow Shortfall Amount pursuant to subsection (i)
above, to the Facility Lenders for payment to the Facility Lenders
and the Henschels, as their interests may appear pursuant to the
Xxxxxxxx Intercreditor Agreement, in the case of the Facility
Lenders, to be applied to repayment of principal of the BankBoston
Debt until such Debt is paid in full, and then to repayment of
principal of the Loans and any other obligations due the Facility
Lenders, and, in the case of the Henschels, to be applied to
repayment of the Xxxxxxxx Note Obligations, and
(B) the Company shall remit 100% of the Monthly Free Cash Flow
Amount, if any, to the Facility Lenders and the Henschels, as their
interests may appear pursuant to the Xxxxxxxx Intercreditor
Agreement, in the case of the Facility Lenders, to be applied to
repayment of principal of the BankBoston Debt until such Debt is
paid in full, and then to repayment of principal of the Loans and
any other obligations due the Facility Lenders, and, in the case of
the Henschels, to be applied to repayment of the Xxxxxxxx Note
Obligations.
(p) The Company shall immediately repay the amount outstanding
under the Existing Loan Documents by the amount equal to the Net Proceeds of
Sale of Securitization Receivables in respect of any Pledged Securities and the
net proceeds of any sale of Mortgage Loans comprising a portion of the
Collateral, in each case which are sold or otherwise disposed of by the Company
or any Subsidiary. The Company shall not
sell or otherwise dispose of any Pledged Securities or any such Mortgage Loan
without the Existing Lender's and, in the case of any Pledged Securities, each
other Creditor's consent, such consent not to be unreasonably withheld or
delayed by the Existing Lender, such other Creditors or the Company (it being
understood and agreed that the delivery by the Existing Lender of a release of
its lien in respect of a Mortgage Loan being sold shall constitute conclusive
evidence of such consent). The parties agree that it would be reasonable for the
Existing Lender and each other Creditor to withhold its consent to any such sale
if, in its sole discretion, the Existing Lender or, in the case of any sale of
any Pledged Securities, such other Creditor concludes that (i) such sale will
impair its ability to be paid the Existing Obligations or the obligations due
such other Creditor, (ii) such sale will adversely affect the Available Cash
Flow from Securitization Receivables or Available Cash Flow from Other Creditor
Residuals, as the case may be, (iii) the selling price for the Pledged
Securities or any such Mortgage Loan should be higher or (iv) the Pledged
Securities or any such Mortgage Loan has not been adequately marketed.
(q) In the event the Company shall fail to pay when due any amount
due to the Existing Lender under this Agreement, the Existing Lender may set off
such amount against Available Cash Flow from Securitization Receivables or
payments on Pledged Loans otherwise payable to the Company hereunder.
Section 6. Conditions Precedent. The effectiveness of this
Agreement 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 an Other Intercreditor Agreement in the form annexed hereto, and the
Company, the Facility Lenders and the Henschels shall have entered into the
Xxxxxxxx Intercreditor Agreement and the Company, the Creditors and the
applicable escrow agents shall have entered into the Tax Escrow Agreement, the
NLC Escrow Agreement and the Securitization Escrow Agreement. The Company shall
furnish the Existing Lender complete and correct copies of each such Other
Intercreditor Agreement and the Xxxxxxxx Intercreditor Agreement within one
business day of its execution.
Section 7. Certain Definitions.
"Additional Collateral" means cash or additional collateral
reasonably acceptable to the Existing Lender transferred to the Existing Lender
pursuant to the applicable Existing Loan Agreement.
"Advance" means any advance made or assumed by the Existing Lender
under the applicable Existing Loan Agreement.
"Allocable Share" means, with respect to the Monthly Cash Flow
Shortfall Amount, the percentage obtained by dividing (i) Available Cash Flow
from Securitization Receivables for such month by (ii) the sum of Available Cash
Flow from Securitization Receivables and Available Cash Flow from Other Creditor
Residuals for such month and, with respect to any Monthly Free Cash Flow Amount,
means the percentage determined by dividing (i) the aggregate amount of Residual
Debt then outstanding owing to the Existing Lender by (ii) the aggregate amount
of Residual Debt then outstanding owing to the Existing Lender or any Other
Residual Lender.
"Assets" means the collective reference to Mortgage Loans, Lender
Mortgages and Pledged Securities.
"Asset Sale" has the meaning specified in the recitals.
"Available Cash Flow from Other Creditor Residuals" means the
amount of any distribution with respect to, or repayment of, the Residuals
pledged or sold, subject to repurchase obligations, by the Company and its
Subsidiaries to any Other Existing Lender and accepted by such Lender in
connection with the financing of such Residuals.
"Available Cash Flow from Securitization Receivables" means the
amount of any distribution with respect to, or prepayment of, any Pledged
Securities.
"Available Post-Transaction Cash Flow" means the sum of (i) the
Available Cash Flow from Securitization Receivables, (ii) the Available Cash
Flow from Other Creditor Residuals, (iii) the Non-Residual Cash Proceeds, and
(iv) plus or minus the Operating Expense Differential, (v) minus the Operating
Expenses for the third succeeding month (except for any such month to which the
Initial Operating Expenses Amount relates) and (vi) minus for each of the months
of January and February, 2000, the cash interest payable to Creditors for that
month.
"BankBoston Debt" means the indebtedness of the Company owing to
the Facility Lenders in respect of the (i) 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 BankBoston N.A., to which the GSCP
Funds have succeeded by assignment and (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 BankBoston N.A., to which the GSCP Funds have
succeeded by assignment.
"Borrowers" means any of 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., American Home Equity Corporation, Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc., National
Lending Group, Inc. and any additional Persons that may become Borrowers under
either Existing Loan Agreement.
"Business Plan" means a business plan of the Company and its
Subsidiaries prepared each month, which shall not provide for the conduct of any
business except that permitted pursuant to Section 8(g) hereof, and showing on a
monthly basis (a) an estimate of all Operating Expenses for the succeeding
twelve month period, and (b) actual Operating Expenses for the prior three
months (or such shorter period commencing on the day of the closing of the Asset
Sale), which plan shall have been prepared by the Company and approved, in the
case of the Initial Business Plan and the Business Plan for each successive
twelve-month period succeeding that covered by the Initial Business Plan (each
such Business Plan so approved, a "Subsequent Approved Business Plan"), by GSCP
and two of the other Creditors, or, if there are at least one but fewer than
three other Creditors with outstanding Existing Obligations (as defined herein
or in their respective Other Intercreditor Agreements), by GSCP and at least one
such Other Creditor and, in the case of each other Business Plan, by GSCP, such
approval not to be unreasonably withheld or delayed.
"Cash Collateral Account" means a cash collateral account
established and maintained by the Existing Lender pursuant to the terms and
conditions of the Existing Loan Agreements.
"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 or the closing of the
Asset Sale):
(i) the Company consummates any sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Company, in any transaction or series of transactions not in the
ordinary course of business and not contemplated by a Business
Plan; or
(ii) the Company engages in a merger, consolidation or similar
business combination with any third party.
"CMC Advance Proceeds" means any payments received by the Company
from CMC upon the closing of the Asset Sale in connection with CMC's purchase
from the Company of certain delinquent interest servicing advances funded by and
securing the Facility Lender Advances.
"Collateral" means all of the Company's or any Borrower's right,
title and interest in, to and under each of the following items of property,
whether now owned or hereafter acquired, now existing or hereafter created and
wherever located:
all Assets;
all Collateral Documents, including without limitation all promissory
notes relating to or evidencing the Assets, and all Servicing Records, servicing
agreements and any other collateral pledged or otherwise relating to such
Collateral, together with all files, documents, instruments, surveys,
certificates, correspondence, appraisals, computer programs, computer storage
media, accounting records and other books and records relating thereto;
all securities, monies or property representing dividends or interest on
any of the foregoing, or representing a distribution in respect of the
foregoing, or resulting from a split-up, revision, reclassification or other
like change of the foregoing or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or otherwise
in respect of, the foregoing;
all Pooling and Servicing Agreements;
all Collection Accounts and amounts on deposit therein;
all Cash Collateral Accounts and amounts on deposit therein;
all guaranties and insurance (issued by governmental agencies or
otherwise including without limitation, FHA Mortgage Insurance) and any
insurance certificate or other document evidencing such guaranties or insurance
relating to any item of Collateral and all claims and payments thereunder;
all other insurance policies and insurance proceeds relating to any item
of Collateral;
all Interest Rate Protection Agreements;
all Additional Collateral provided to the Existing Lender;
all of the Company's or any Borrower's rights, but not their obligations,
under any purchase agreements and servicing agreements and all servicing rights
covering or relating to any item of the Collateral to which the Company or any
of the Borrowers are a party;
all "general intangibles" as defined in the Uniform Commercial Code
relating to or constituting any and all of the items listed in the foregoing
items;
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
any and all replacements, substitutions, distributions on or proceeds of
any and all of the foregoing.
"Collateral Documents" means, with respect to the items of
Collateral, the documents comprising the Collateral File for such Collateral.
"Collateral File" means, with respect to each Mortgage Loan, those
documents that are delivered to the Custodian or which at any time come into
the possession of the Custodian, pursuant to the terms and conditions of either
Custodial Agreement.
"Collection Account" means a collection account established and
maintained by the Existing Lender pursuant to the terms and conditions of the
Existing Loan Agreements.
"Common Stock" means the Company's common stock, par value $0.001
per share.
"Company" means IMC Mortgage Company, a Florida corporation, and
any successor by merger and any entity purchasing all or substantially all of
the assets of the Company (other than pursuant to the Asset Purchase Agreement).
"Creditor" means any of the Facility Lenders, the Existing Lender
or any Other Existing Lender.
"Custodial Agreements" means separate Custodial Agreements by among
the
Company, certain of its Subsidiaries, Custodian and the Existing Lender, as the
same shall be modified and supplemented and in effect from time to time.
"Custodian" means BankBoston, N.A., as custodian under the
Custodial Agreements, and its successors and permitted assigns thereunder.
"Delinquent Interest Advance Shortfall Amount" means the amount of
any obligations owing to the Facility Lenders in respect of the Facility Lender
Advances after giving effect to the payment by the Company to the Facility
Lenders of the CMC Advance Proceeds, which is estimated to be approximately the
amount set forth on Schedule III hereto corresponding to the line entitled
"Delinquent interest advance shortfall."
"Delinquent Mortgage Loan" means any Mortgage Loan which, as of any
date of determination, is more than 90 days delinquent in payment of any
principal or interest due thereunder.
"Designated Subsidiary" means National Lender Center until 366 days
after the date on which any remaining advances made by the Company to National
Lending Center, Inc. shall have been repaid or written off and the net proceeds
thereof paid to the escrow agent under the NLC Escrow Agreement pursuant to
Section 5(h) hereof.
"FHA" means the Federal Housing Administration, an agency within
the United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
"FHA Loan" means a Mortgage Loan which is the subject of FHA
Mortgage Insurance.
"FHA Mortgage Insurance" means mortgage insurance authorized under
the National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Regulations" means regulations promulgated by HUD under the
National Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Xxxxxxxx Make-up Amount" means the product of (i) 25% and (ii) the
excess if any of (A) $600,000 over (B) the amount the Henschels would have
received pursuant to Section 7(a) of the Xxxxxxxx Intercreditor Agreement if the
Facility Lenders had no obligation to pay the Minimum Payment (as defined in
Section 7(a) of the Xxxxxxxx Intercreditor Agreement).
"HUD" means the Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance, including subdivisions
thereof such as the FHA.
"Initial Business Plan" means the initial Business Plan, a copy of
which is attached hereto as Schedule IV.
"Initial Operating Expenses Amount" means a good faith estimate of
the Company of Operating Expenses for the period commencing with the day of the
closing of the Asset Sale and ending on the last day of the third full calendar
month thereafter (except for cash interest payable to the Creditors for the
months of January and February, 2000).
"Interest Rate Protection Agreement" means, with respect to any or
all of the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
similar arrangements providing for protection against fluctuations in interest
rates or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Lender Mortgage" means, with respect to any REO Property owned or
to be owned by the Borrowers a duly executed and recorded mortgage, deed of
trust or similar instrument in favor of the Existing Lender on such REO
Property, which Lender Mortgage shall (A) name the Existing Lender as the
mortgagee thereon or the beneficiary thereof and (B) be on a FNMA uniform
instrument (or another form acceptable to the Existing Lender).
"LIBOR" means the London interbank offered rate for one-month U.S.
Dollar deposits as it appears on page five of the Telerate screen at or about
9:00 a.m. (New York City time).
"Lien" means, as defined in the Uniform Commercial Code in effect
in any jurisdiction, with respect to the mortgages, liens, pledges, charges,
security interests or similar encumbrances created pursuant to the applicable
Existing Loan Agreement.
"Margin Call" means the right of the Existing Lender to give notice
to require the Company or any Subsidiary to transfer to the Existing Lender cash
or additional collateral.
"Monthly Free Cash Flow Amount" means, for any month, the amount,
if any, by which (i) the sum of (x) the Non-Residual Cash Proceeds, and (y) any
negative Operating Expense Differential exceeds (ii) the sum of (a) the
Operating Expenses for the third succeeding month (but only to the extent not
provided for in the Initial Operating Expenses Amount), (b) any positive
Operating Expense Differential, in each case, as set forth on the Monthly
Statement and (c) for each of the months of January and February, 2000, the cash
interest payable to the Creditors for that month.
"Monthly Cash Flow Shortfall Amount" means, for any month, the
amount, if any, by which (i) the sum of (a) the Operating Expenses projected by
the Company for the third succeeding month (but only to the extent not provided
for in the Initial Operating Expenses Amount), (b) any positive Operating
Expense Differential and (c) for each of the months of January and February,
2000, the cash interest payable to the Creditors for that month exceeds (ii) the
sum of (x) the Non-Residual Cash Proceeds, and (y ) any negative Operating
Expense Differential, in each case, as set forth on the Monthly Statement.
"Monthly Statement" means a monthly cash flow statement and
projection prepared by the Company and approved in advance by GSCP or, if GSCP
declines to approve such statement, by two of the three other Creditors (and, if
the Operating Expenses (other than taxes, cash interest payable on any
obligations of the Company and any Mortgage Sale Shortfall) to be incurred in
any month are greater than the Operating Expenses (other than taxes, cash
interest payable on any obligations of the Company and any Mortgage Sale
Shortfall) for such month contained in the Initial Business Plan or any
Subsequently Approved Business Plan by more than (i) 10%, by two of the three
other Creditors, and (ii) 25%, by each Creditor), setting forth the following:
(i) the Available Cash Flow from Securitization Receivables received during the
prior month, (ii) the Available Cash Flow from Other Creditor Residuals received
during the prior month, (iii) the Non-Residual Cash Proceeds received by the
Company during the prior month, (iv) the amount of any Reserve Release during
the prior month, (v) the amount remaining on deposit under the Tax Escrow
Agreement, the NLC Escrow Agreement and the Securitization Escrow Agreement,
respectively, (vi) the estimated Operating Expenses to
be incurred by the Company and its Subsidiaries during the current month and the
third succeeding month, consistent with the Business Plan, (vii) the Operating
Expense Differential, (viii) any Mortgage Sale Excess Proceeds received or
Mortgage Sale Shortfall incurred, as the case may be, during the prior month,
(ix) any Monthly Cash Flow Shortfall Amount or Monthly Free Cash Flow Amount, as
the case may be, and, in the case of the Monthly Cash Flow Shortfall Amount, the
Existing Lender's and each Other Residual Lender's Allocable Share thereof, (x)
the Business Plan, and (xi) a capitalization table showing the indebtedness
owing to each creditor of the Company both as of the end of the prior month and
after the application of all amounts to be paid to such creditor pursuant to
this Monthly Statement and Section 5 hereof.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on the fee in real property
securing the Mortgage Note.
"Mortgage Loan" means a mortgage loan which the Custodian has been
instructed to hold for the Existing Lender pursuant to a Custodial Agreement,
and which Mortgage Loan includes, without limitation, (i) a Mortgage Note and
related Mortgage and (ii) all of the Company's or any Borrowers' right, title
and interest in and to the Mortgaged Property covered by such Mortgage.
"Mortgage Note" means the original executed promissory note or
other evidence of the indebtedness of a mortgagor/borrower with respect to a
Mortgage Loan.
"Mortgage Sale Excess Proceeds" means (i) with respect to any Sixty
Day Mortgage Loan, the amount of any proceeds from the sale or other disposition
of such loan in excess of eighty percent (80%) of the principal outstanding on
such Sixty Day Mortgage Loan as of November 5, 1999, and (ii) with respect to
any Ninety Day Mortgage Loan, the amount of any proceeds from the sale or other
disposition of such loan in excess of sixty-eight and 60/100's percent (68.6%)
of the principal outstanding on such Ninety Day Mortgage Loan as of November 5,
1999.
"Mortgage Sale Shortfall" means (i) with respect to any Sixty Day
Mortgage Loan, the amount of any deficit of any proceeds from the sale or other
disposition of such loan relative to eighty percent (80%) of the principal
outstanding on such Sixty Day Mortgage Loan as of November 5, 1999, (ii) with
respect to any Ninety Day Mortgage Loan, the amount of any deficit of any
proceeds from the sale or other disposition of such loan relative to sixty-eight
and 60/100's percent (68.6%) of the principal outstanding on
such Ninety Day Mortgage Loan as of November 5, 1999 and (iii) with respect to
any Mortgage Loan (other than any Sixty Day Mortgage Loan or Ninety Day Mortgage
Loan) sold or otherwise disposed of after the closing of the Asset Sale and not
included in the proposed securitization of Mortgage Loans to which the
Securitization Escrow Agreement relates, any amount remaining outstanding on the
applicable Creditor's advances in respect of such Mortgage Loan after applying
the net proceeds of the sale of such Mortgage Loan (and after applying any
amount distributed to the applicable Creditor under the Securitization Escrow
Agreement in respect of such Mortgage Loan to repayment of the related advance)
to repayment of the related advance.
"Mortgaged Property" means the real property (including all
improvements, buildings, fixtures, building equipment and personal property
thereon and all additions, alterations and replacements made at any time with
respect to the foregoing) and all other collateral securing repayment of the
debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor on a Mortgage Note.
"Net Asset Sale Proceeds" means the cash proceeds received by the
Company upon the closing of the Asset Sale (including, without limitation, the
proceeds from the purchase by CMC of the servicing advances), net of any
Transaction Expenses and Professional Fees, and exclusive of the CMC Advance
Proceeds.
"Net Proceeds of Sale of Securitization Receivables" means the
proceeds, net of any reasonable out-of-pocket costs of sale or disposition,
realized by the Company or any Subsidiary from any sale, lease or other
disposition of any Pledged Securities.
"Ninety Day Mortgage Loans" means Mortgage Loans financed
(including by purchase subject to a repurchase obligation) by a Creditor which
are more than 90 days delinquent on November 5, 1999.
"NLC Amount" means the amount set forth on Schedule III hereto
corresponding to the line entitled "NLC 90-day warehouse financing", which
represents the amount required to be reserved for warehouse financing to be
provided by the Company to National Lending Center, Inc. for a period not to
exceed 90 days following the closing of the Asset Sale.
"NLC Escrow Agreement" means an escrow agreement among the Company,
each of the Creditors, and a bank acting as escrow agent, reasonably acceptable
to each Creditor, which agreement is satisfactory in form and substance to each
Creditor, providing for the deposit of the proceeds of the warehouse financing
to be provided by
the Company to National Lending Center, Inc. upon the closing of the
transactions contemplated by the Asset Purchase Agreement into escrow
thereunder.
"Non-Residual Cash Proceeds " means any cash inflow to the Company
other than the Available Cash from Securitization Receivables, the Available
Cash from Other Creditor Residuals and the cash proceeds received upon the
closing of the Asset Sale, but only to the extent such cash proceeds are applied
or remain in reserve for application to the purpose for which such proceeds were
reserved as contemplated by Schedule III hereto.
"One-Time Working Capital Amount" means an amount representing the
Company's good faith estimate of the amount required to be reserved for the
payment of certain expenses and the run off of certain working capital items and
set forth on Schedule III hereto corresponding to the line entitled "One-time
working capital amount."
"Operating Expense Differential" means, with respect to any Monthly
Statement, the difference (positive or negative) between the actual Operating
Expenses for the prior month and the estimated Operating Expenses for such month
reflected in the prior Monthly Statement (or, for the first such statement, in
the Initial Business Plan).
"Operating Expenses" means, for any period, the operating expenses
of the Company and its Subsidiaries incurred or to be incurred in accordance
with the current Monthly Statement or Initial Operating Expenses Amount
estimate, as the case may be, including, without limitation, any Mortgage Sale
Shortfall and any cash interest payable on any obligations of the Company.
"Other Existing Lender" has the meaning specified in Section 6.
"Other Intercreditor Agreements" means the separate intercreditor
agreements among the Company, an Other Existing Lender and the Facility Lenders.
"Other Residual Lenders" means the Other Existing Lenders which are
owed Residual Debt.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan that is
pledged by the Company or its Subsidiaries and accepted by the Existing Lender
in connection with an Advance.
"Pledged Securities" means the Subordinated Securities pledged to
the Existing Lender from time to time and held by the Existing Lender as
Collateral under the applicable Existing Loan Agreement.
"Pooling and Servicing Agreement" means any pooling and servicing
agreement, sale and servicing agreement, trust agreement or other agreement
pursuant to which the Mortgage Loans ultimately underlying any of the Pledged
Securities are serviced or administered or the Pledged Securities are issued or
exchanged.
"Pro-Rata Share" means the fraction derived by dividing (A) the
Residual Debt owing to the Existing Lender by (B) the aggregate amount of the
Company's obligations in respect of Residual Debt, determined as of the date of
the closing of the Asset Sale.
"REO Property" means a fee in real property acquired by the
Borrowers pursuant to or in connection with a purchase agreement, including a
Mortgaged Property acquired through foreclosure of a Mortgage Loan or by deed in
lieu of such foreclosure.
"Reserve Release" means any release of funds to the Existing
Lender, the Other Existing Lenders, the Facility Lenders or the Henschels
pursuant to the Securitization Escrow Agreement, the Tax Escrow Agreement or the
NLC Escrow Agreement.
"Residual" means any residual, subordinated or interest strip class
of asset-backed security (i) issued in connection with a securitization in which
any Creditor 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.
"Residual Debt" the amount of any indebtedness of the Company or
any Subsidiary owing to the Existing Lender or any Other Existing Lender and
incurred in connection with the financing of any Residual.
"SafeCo Shortfall Amount" means the shortfall in the amount
received from CMC in connection with CMC's purchase of certain insurance
receivables of the Company in connection with the Asset Sale compared with the
corresponding insurance premium payables, an estimate of which is set forth on
Schedule III hereto corresponding
to the line entitled "SafeCo shortfall."
"Securitization Escrow Agreement" means an escrow agreement among
the Company, each of the Creditors, and a bank acting as escrow agent,
reasonably acceptable to each Creditor, which agreement is satisfactory in form
and substance to each Creditor, providing for the deposit of the Securitization
Escrow Amount upon the closing of the transactions contemplated by the Asset
Purchase Agreement into escrow thereunder.
"Securitization Escrow Amount" means the amount set forth on
Schedule III hereto corresponding to the line entitled "Securitization Escrow
Amount."
"Securitization Transaction" means all underwritings or private
placements of (1) securities issued by or sponsored by and (2) backed by
Mortgage Loans or substantially similar assets acquired by or owned by
Borrowers or the Company (or any of their respective Affiliates), including
without limiting the generality of the foregoing, any of either entity's
securitization and other collateralized term financing transactions that involve
Mortgage Loans or substantially similar assets.
"Seller's Guide" means the "IMC Mortgage Company Client Operations
Manual", together with the underwriting guidelines of the Company and its
Subsidiaries, a true and correct copy of which was previously provided to the
Existing Lender by the Company and its Subsidiaries.
"Servicing Records" means any and all servicing agreements, files,
documents, records, data bases, computer tapes, copies of computer tapes, proof
of insurance coverage, insurance policies, appraisals, other closing
documentation, payment history records, and any other records relating to or
evidencing the servicing of Collateral.
"Sixty Day Mortgage Loans" means Mortgage Loans financed (including
by purchase subject to a repurchase obligation) by a Creditor which are more
than 60 days but not more than 90 days delinquent on November 5, 1999.
"Sold Mortgage Loan" means any Mortgage Loan (other than any Sixty
Day Mortgage Loan or Ninety Day Mortgage Loan), sold or otherwise disposed of by
the Company prior to the closing of the Asset Sale.
"Standstill Period" means a period ending on the first to occur of
(i) the repayment in full of all Existing Obligations, all obligations owed to
the Facility Lenders
and the Xxxxxxxx Note Obligations, (ii) termination of the Standstill Period in
accordance with Section 1(b) or 1(c) hereof, (iii) termination of the Asset
Purchase Agreement or (iv) December 3, 1999, if the closing of the Asset Sale
shall not have occurred by such date.
"Subordinated Securities" means interest-only strips, residual
interests, subordinated interests or reserve certificates issued and
transferred to the Company or Borrowers in connection with any Securitization
Transaction or any other collateral as the Existing Lender may deem appropriate.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
such Person.
"Tax Escrow Agreement" means an escrow agreement among the Company,
each of the Creditors, and a bank acting as escrow agent, reasonably acceptable
to each Creditor, which agreement is satisfactory in form and substance to each
Creditor, providing for the deposit of the Tax Escrow Amount upon the closing
of the transactions contemplated by the Asset Purchase Agreement into escrow
thereunder.
"Tax Escrow Amount" means the amount set forth on Schedule III
hereto corresponding to the line entitled "Tax Escrow Amount", which, together
with the NLC Amount, represents the Company's good faith estimate of the amount
required to be reserved for the payment of tax liabilities of the Company
associated with Federal and state income taxes payable with respect to the year
ended December 31, 1999.
"Transaction Expenses and Professional Fees" means any unpaid
transaction expenses or professional fees payable in connection with the Asset
Sale, the preparation or negotiation of the various intercreditor agreements,
the documentation relating to the Facility Lender Advances and any prior monthly
servicing advances, the Acquisition Agreement, the Asset Purchase Agreement, any
transactions contemplated by or related to such agreements or transactions or
otherwise, an estimate of which is set forth in Schedule III hereto,
corresponding to the line entitled "Transaction expenses and professional fees."
"Transaction Proceeds Amount " means the amount derived by
subtracting from the Net Asset Sale Proceeds (A) the Tax Escrow Amount, (B ) the
Securitization Escrow Amount, (C) the One-Time Working Capital Amount, (D ) the
Delinquent Interest Advance Shortfall Amount, (E) the SafeCo Shortfall Amount,
(F) the Initial Operating
Expenses Amount, (G) the Warehouse Debt Shortfall and (H) the NLC Amount.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York.
"Warehouse Debt Shortfall" means the amount representing (i) with
respect to Sixty Day Mortgage Loans, the excess, if any, of the principal
outstanding on the applicable Creditor's advances in respect of such Sixty Day
Mortgage Loans on November 5, 1999 over 80% of the outstanding principal amount
of such Sixty Day Mortgage Loan; (ii) with respect to Ninety Day Mortgage Loans,
the excess, if any, of the principal outstanding on the applicable Creditor's
advances in respect of such Ninety Day Mortgage Loans on November 5, 1999 over
68.6% of the outstanding principal amount of such Ninety Day Mortgage Loan and
(iii) with respect to Sold Mortgage Loans, any amount remaining outstanding on
the applicable Creditor's advances in respect of such Sold Mortgage Loan after
applying the net proceeds of the sale of such Sold Mortgage Loan to repayment of
the related advance.
"Wet Mortgage Loan" means any residential mortgage loan originated
by the Company and its Subsidiaries in accordance with the Seller's Guide, with
respect to which all of the related documents required to be delivered in
connection with any Advance have not been deposited with the custodian on or
prior to the related Advance Date.
Section 8. Notice of Advances under the Loan Agreement; etc. (a)
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.
(b) The Company shall give the Existing Lender and the Facility
Lenders prompt written notice of any event that would permit termination of the
Standstill Period pursuant to Section 1(b) hereof.
(c) The Company shall give the Existing Lender prompt written
notice of the entering into any amendment to the Asset Purchase Agreement and
the closing of the Asset Sale.
(d) 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 Agreement to the Existing Lender
weekly on Friday of each week or, if Friday is not a Business Day, on the next
Business Day and from and after the
closing of the Asset Sale, the interest rate applicable to the Existing
Obligations shall be equal to LIBOR plus 300 basis points.
(e) The Company shall not repay any principal outstanding under the
Loan Agreement during the Standstill Period, except pursuant to Section 5
hereof.
(f) In the event all remaining Mortgage Loans securing (or
purchased subject to a repurchase obligation comprising) any Existing
Obligations have not been sold by the Company on or before the date which is 180
days following the closing of the Asset Sale, the Existing Lender may buy such
Mortgage Loans at their then fair market value (as determined by independent
third-party bid) or arrange for the sale of such Mortgage Loans to third parties
at such fair market value, and the Company shall take such actions and execute
such customary agreements and instruments as may be necessary to effect such
sale and transfer good and marketable title to such Mortgage Loans to the
purchaser thereof.
(g) Until all of the Company's obligations under this Agreement,
the Other Intercreditor Agreements, the Existing Loan Documents and the Loan
Agreement have been satisfied in full, the Company shall not conduct any
business or engage in any activities other than (a) liquidating its assets in
an orderly fashion and performing its obligations under (i) the Asset Purchase
Agreement, (ii) this Agreement (including its obligations under the Existing
Loan Documents), (iii) the Other Intercreditor Agreements and the Xxxxxxxx
Intercreditor Agreement and the agreements evidencing the indebtedness owing to
such other Creditors and the Henschels, (iv) the Tax Escrow Agreement, the NLC
Escrow Agreement and the Securitization Escrow Agreement, (v) any other
agreements existing on the date hereof and (v) satisfying its other obligations
and liabilities, (b) transacting any other lawful business under its
certificate of incorporation and by-laws that is incident, necessary and
appropriate to accomplish the foregoing, including defending any actions or
proceedings. The Company shall maintain not more than a commercially reasonable
number of employees necessary to conduct the foregoing activities. The Company
shall not incur any indebtedness for borrowed money other than liabilities
incurred in the ordinary course of its business (as such business is limited
under the preceding provision), and not grant any new liens (except as may be
incidental to the foregoing permitted activities).
Section 9. Acknowledgment of Obligations. The Company acknowledges
that its obligations under the Existing Loan Documents and the lien on the
Collateral securing the Existing Obligations remain in full force and effect,
and that the Company has no
defenses, counterclaims or offsets to its obligations under the Existing Loan
Documents and that such liens are valid, perfected and enforceable. The Company
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 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 or the Loan Documents except
as expressly referred to 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 Existing Lender or the Facility Lenders, respectively,
except to the extent expressly provided herein. 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 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 Creditors of the payments to be received hereunder from the
proceeds of the Asset Sale, the Existing Lender hereby releases the executive
officers and the directors of the Company from any and all claims in respect of
the Existing Loan Documents 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. 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 Lender 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.
Section 12. Letter Agreement. The Company and the Facility Lenders
agree that notwithstanding any of the provisions of this Agreement, this
Agreement does not
supersede the provisions of the (i) the Letter Agreement regarding certain
issues in connection with the Existing Loan Agreements, dated as of October 12,
1998 by and between the Company and the Existing Lender and (ii) the Letter
Agreement re: DBS Underwriting Mandate, dated October 12, 1998, as amended,
between Deutsche Bank Securities and IMC Mortgage Company and each such Letter
Agreement shall remain in full force and effect in conformance with the terms
thereof.
Section 13. 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 14. 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 17.
Section 15. 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 and review
and negotiation of all related documents, including the Asset Purchase Agreement
and the Loan Agreement, and monitoring performance of all related documents. If
such costs and expenses are not paid by the Company within 30 days of
submission, the Existing Lender may pay such costs and expenses from Available
Cash Flow from Securitization Receivables and payments on Pledged Loans, in
which event appropriate adjustments shall be made to such Existing Lender's and
each Other Residual Lender's Allocable Share of Available Cash Flow from
Securitization Receivables as if such costs and expenses were paid by the
Company as Operating Expenses.
Section 16. 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 17. 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 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: (212)
000-0000; with a copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Xxxxxx Xxxxxx, Esq., Tel: (000) 000-0000, Fax: (212)
000-0000; (b) if to the Company, IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxx 00000, Attn.: President, Tel: (000) 000-0000, Fax: (813)
000-0000; with a copy to Xxxxxxxx X. Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, Tel: (000) 000-0000, Fax: (000) 000-0000; and (c) and if to the
Existing Lender: German American Capital Corporation, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxxxxxx, Tel.: (000) 000-0000, Fax: (212)
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: (212)
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; and if to any of the Other Existing Lenders, to such person
and at the address and facsimile number provided in Schedule II hereto. 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 17 or Schedule II hereto, 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 18. 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 to each of
the other Creditors, and, as to Section 3(d) hereto, CMC, 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 19. 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.
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:
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/
---------------------------
Name:
Title:
By: /s/
---------------------------
Name:
Title:
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
This Intercreditor Agreement is hereby acknowledged and agreed to by:
IMC CORPORATION OF AMERICA
IMC CREDIT CARD, INC.
IMC MORTGAGE COMPANY CANADA, LTD.
AMERICAN HOME EQUITY CORPORATION
IMC INVESTMENT CORPORATION
IMC INVESTMENT LIMITED PARTNERSHIP
ACG FINANCIAL SERVICES (IMC), INC.
AMERICAN MORTGAGE REDUCTION, INC.
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
COREWEST BANC
EQUITY MORTGAGE CO. (IMC), INC.
IMCC INTERNATIONAL, INC.
MORTGAGE AMERICA (IMC), INC.
NATIONAL LENDING CENTER, INC.
NATIONAL LENDING CENTER TILT, INC.
NATIONAL LENDING GROUP, INC.
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By: /s/
-------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: /s/
-------------------------------
Name:
Title:
BEAR XXXXXXX HOME EQUITY TRUST
By: /s/
-------------------------------
Name:
Title:
BEAR XXXXXXX INTERNATIONAL LIMITED
By: /s/
-------------------------------
Name:
Title:
Schedule I
to the
Deutsche Lenders Intercreditor Agreement
Other Existing Lenders
1. 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.
2. Master Repurchase Agreement, dated as of May 1, 1997 between Bear,
Xxxxxxx International Limited and Industry Mortgage Company, L.P.
3. Institutional Account Agreement, dated October 23, 1996, between and
among Industry Mortgage Company, L.P. and Bear Xxxxxxx.
4. 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.
5. (i) 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 BankBoston N.A., to which the Facility Lenders have
succeeded by assignment, and (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 BankBoston N.A., to which the
Facility Lenders have succeeded by assignment.
Schedule II
to the
Deutsche Lenders Intercreditor Agreement
Notice Address for Other Existing Lender
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;
Xxxxx Xxxxxx
if to Xxxxx Xxxxxx, to: Xxxxx Xxxxxx 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: (212)
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 17 of
the foregoing Agreement
Sources and Uses of Cash from Asset Sale
($000)
Sources:
Proceeds from Asset Sale $____
Reimbursement of corporate servicing advances $____
Less Discount 10.45% $____
Reimbursement of delinquent interest advance
Less discount
Net reimbursement $____
Total net sources of cash $____
Uses:
Transaction expenses and professional fees:
Debevoise & Xxxxxxxx
DLJ
Xxxxxx, Xxxxx
Bear, Xxxxxxx
Bear, Xxxxxxx
DMG
Greenwich Capital
Commercial Credit
CoreWest settlement
Others (proxy solicitation, accountants, etc.)
Total transaction expenses and professional fees
Tax Escrow Amount
NLC 90-day warehouse financing
Securitization Escrow Amount
SafeCo shortfall
Delinquent interest advance shortfall
Warehouse shortfall
One-time working capital amount:
Vacation pay
Interest expense on November 15, 1999
Litigation costs
Accounts payable and accrued expenses estimated at
November 15, 1999 (IMC parent)
Accounts payable and accrued expenses estimated at
November 15, 1999 (subsidiaries)
Miscellaneous/unknown/working capital
Total one-time working capital amount $_____
Total uses of cash $_____
Excess of sources over uses of cash $_____