Draft--October 12, 1998
EXHIBIT B
BORROWER SECURITY AGREEMENT
BORROWER SECURITY 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 "Lender" and collectively, the "Lenders")
and GREENWICH STREET CAPITAL PARTNERS, II, L.P., as collateral agent (the
"Collateral Agent").
RECITALS
A. Pursuant to the 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 Lenders, the Lenders have
extended 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.
B. In order to induce the Lenders to enter into the Loan Agreement and
to extend the Loans, the Company has agreed to enter into this Agreement to
grant to the Collateral Agent for the benefit of the Lenders a continuing
perfected security interest in the Collateral (as defined in Section 1) to
secure the performance of its obligations under the Loan Agreement, all upon the
terms and conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby agrees with the
Collateral Agent and the Lenders as follows:
Section 1. Definitions. Capitalized terms used in this Agreement
without definition have the meanings given to them in the Loan Agreement. The
following terms, as used in this Agreement, have the following meanings:
"Cash Flow from Loan Collateral" means all payments received by the
Company in respect of Servicing Rights and Securitization Receivables.
"Existing Liens" means the Liens existing on the Collateral as of the
date hereof identified in reasonable detail on Schedule 5.11 to the Discosure
Letter, as granted to the Persons and pursuant to the agreements or instruments
listed on such Schedule 5.11.
"Loan Collateral Account" means the demand deposit account established
by the Company with BankBoston, N.A. ("BankBoston") pursuant to the Bridge Loan
and Security Agreement, dated as of October 10, 1997, among the Company,
Industry Mortgage Company, L.P. and BankBoston for collection of the cash flow
from the Loan Collateral (other than cash flow from Servicing Rights) and into
which the Company has instructed all relevant parties to deposit all Cash Flow
from Loan Collateral (other than cash flow from Servicing Rights) and for the
payment to the Lenders, by automatic debit, of interest, fees and any other
amounts payable from time to time hereunder.
"Secured Obligations" means (i) the full and prompt payment of the
principal of and premium (including, without limitation, Take-Out Premium) and
interest on the Loans (including, without limitation, interest accruing after
the date of any filing by the Company of any petition in bankruptcy or the
commencement of any bankruptcy, insolvency or similar proceeding with respect to
the Company), as and when the same becomes due and payable in accordance with
the terms of the Loan Agreement, (ii) the payment of all other indebtedness and
other amounts payable by the Company under the Loan Agreement, the Notes, this
Agreement (including, without limitation, amounts due under Sections 10, 13 and
15 of this Agreement), and the other Loan Documents (including, without
limitation, interest accruing after the date of any filing by the Company of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with respect to the Company), (iii) the due and punctual
performance by the Company of and compliance by the Company with all its
obligations under the Loan Agreement, the Notes, this Agreement and all other
Loan Documents, and (iv) any renewals or extensions of any of the foregoing.
"Secured Parties" means Lenders and each assignee of the Loans, as
obligees of any or all of the Secured Obligations, and their respective
successors, and the Collateral Agent.
"Securitization Receivables" means all rights of the Company to receive
payments (including, without limitation, assets classified as residual strips,
certificates, or
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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 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.
"Security Interests" means the security interests in the Collateral
granted pursuant to this Agreement securing the Secured Obligations.
"Servicing Advances" means all remittances advanced by the Company to a
Trustee under the Company'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 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.
"Supplemental Documentation" means agreements, instruments, documents,
financing statements, warehouse receipts, bills of lading, notices of assignment
of accounts, (including, without limitation, notices given pursuant to Section
3(o)) Schedules of accounts assigned, mortgages, writings, filings, trust
certificates, certificates of interest, REMIC certificates, servicing
agreements, and any other written matter requested (whether or not required) by
the Collateral Agent to perfect and maintain a perfected Lien upon, and (if
applicable) a perfected first priority security interest in, any Collateral, and
to assist the Collateral Agent's realization thereon (including, without
limitation, the right to receive, endorse, and collect all instruments made
payable to the Company representing any dividend, interest payment or other
distribution or proceeds in respect of any Collateral).
"Trustee" means the trustee under the trust established for the benefit
of the purchasers under a Securitization Transaction.
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"UCC" means the Uniform Commercial Code as in effect on the date hereof
in the State of New York; provided, that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the
security interest granted hereunder in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than New York, "UCC" shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
Section 2. Grant of Security Interest. In order to secure full and
timely payment of the Secured Obligations, and to secure the performance of all
of the other obligations of the Company under the Loan Documents, the Company
hereby mortgages, pledges and assigns and transfers to the Collateral Agent and
grants to the Collateral Agent, for the benefit of the Collateral Agent and the
other Secured Parties, a continuing perfected security interest in, and a lien
upon, all of the following property of the Company, in each case whether now
owned or hereafter acquired or arising and regardless of where located
(collectively, the "Collateral"), subject to no Liens other than Permitted
Liens:
(a) All "accounts" (as defined in the UCC), including all
accounts receivable, contract rights (including, without limitation,
Servicing Rights, Servicing Fees and Servicing Advances), book debts,
notes, drafts and other obligations or indebtedness owing to the Company
arising from the sale, lease or exchange of goods or other property by
it and/or the performance of services by it (including, without
limitation, any such obligation that might be characterized as an
account, contract right or general intangible under the Uniform
Commercial Code in effect in any jurisdiction) and all of the Company's
rights in, to and under all purchase orders for goods, services or other
property, and all of the Company's rights to any goods, services or
other property represented by any of the foregoing and all monies due to
or to become due to the Company under all contracts for the sale, lease
or exchange of goods or other property and/or the performance of
services by it (whether or not yet earned by performance on the part of
the Company), including, without limitation, the right to receive the
proceeds of said purchase orders and contracts and all collateral
security and guarantees of any kind given by any Person with respect to
any of the foregoing (collectively, "Accounts");
(b) All goods, merchandise, and other personal property that may
at any time be held for sale or lease or to be furnished under any
contract of service, be so leased or furnished, or constitute raw
materials, work in process, finished goods, supplies or materials and
all other "inventory" (as defined in the UCC) of
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whatsoever kind and nature that are or might be used or consumed in
business or in connection with the manufacture, packing, shipping,
advertising, selling, leasing or finishing of such goods, merchandise
and other personal property, together with all attachments, accessories,
replacements, substitutions, additions and improvements to any of the
foregoing (collectively, "Inventory");
(c) All "general intangibles" (as defined in the UCC) including,
without limitation, (i) all obligations or indebtedness owing to the
Company (other than Accounts and Instruments (as hereinafter defined))
from whatever source arising, (ii) all rights or claims in respect of
refunds for taxes paid, (iii) all rights in business or operating
licenses and permits, to the extent permitted by law, (iv) all rights,
whether by contract or otherwise, to receive or obtain water,
electricity, natural gas or any other resource or utility, (v) all
warranty, indemnification, or contractual rights and claims of any sort
and (vi) all choses or things in action, goodwill, licenses, leases,
computer programs, tapes or discs, and tax refund claims;
(d) All "documents" (as defined in the UCC) or receipts covering,
evidencing or representing goods;
(e) All "instruments", "chattel paper" or "letters of credit"
(each as defined in the UCC) evidencing, representing, arising from or
existing in respect of, relating to, securing or otherwise supporting
the payment of, any of the Accounts, including, without limitation,
promissory notes, drafts, bills of exchange and trade acceptances
(collectively, "Instruments");
(f) All "equipment" (as defined in the UCC) now owned or
hereafter acquired by the Company, including, without limitation, all
machinery, equipment, tools, furniture, fixtures, and any other goods
other than Inventory, together with any and all additions, substitutions
and replacements of any of the foregoing, and all attachments,
components, parts (including spare parts), equipment and accessories
installed thereon or affixed thereto;
(g) All patents, copyrights, service marks, trademarks and trade
names, including registrations and applications to register or renew the
registration of any of the foregoing, and inventions, processes,
designs, formulae, trade secrets, know-how, confidential information,
computer software and programs (including source codes), data and
documentation, and all similar intellectual property rights, tangible
embodiments of any of the foregoing (in any medium, including electronic
media), and licenses of any of the foregoing; other
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than source codes for computer software and programs designed for
clients or customers of the Company or its Subsidiaries that have been
placed in escrow or similar arrangement for the benefit of such clients
or customers or may be so placed in the ordinary course of business
consistent with past practice;
(h) All rights and claims of the Company in, to or under all
policies of insurance covering any of the Collateral, including, but not
limited to, insurance for fire, damage, loss, and casualty, together
with the proceeds, products, renewals, and replacements thereof,
including prepaid or unearned premiums;
(i) All of the Company'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, in the 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 Lenders in respect of a
Securitization Transaction) and similar rights or interests of Company,
(b) all payments to be paid to the Company 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 in respect of any of the foregoing
(a) through (c); (2) 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; and (3)
All cash from time to time deposited in any deposit account of any of
the Company with the Lenders, in connection with this Agreement,
including, without limitation, the Loan Collateral Account
(collectively, "Loan Collateral");
(j) All books and records (including, but not limited to, credit
files, computer programs, printouts and other computer materials and
records) relating to any of the foregoing and all customer lists and
advertising materials relating to the Company's business; and
(k) Without in any way limiting the foregoing and to the extent
not otherwise included in the foregoing, (x) any and all products and
proceeds of any of the foregoing (including, but not limited to, any
claims of the Company against third parties relating to or in connection
with the Collateral), whether derived from voluntary or involuntary
disposition, and all renewals, replacements,
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substitutions, additions, accessions, rents, issues, royalties, and
profits of any of the foregoing, and (y) all cash and bank deposit
accounts, wherever located;
provided, however, that Collateral shall not include any collateral granted as
of the date hereof as security for the obligations of the Company under any of
the agreements listed on Schedule II hereto.
The Company acknowledges and agrees that, in applying the law of any
jurisdiction that has now enacted or hereafter enacts all or substantially all
of the uniform revision of Article 8 of the Uniform Commercial Code, with new
provisions added to Article 9 contemplated by such revision, all as approved in
1994 by the American Law Institute and the National Conference of Commissioners
on Uniform State Laws, the foregoing description of Loan Collateral and Accounts
shall be deemed to include "investment property", as applicable, as defined in
such new provisions of Article 9, it being the intention of the Company that
such property be included in the foregoing description of Loan Collateral or
Accounts, as the case may be, whether prior to or after the effectiveness of
such revision in such jurisdiction.
Section 3. Warranties, Covenants and Agreements of the Company. The
Company represents, warrants and covenants that:
(a) Except for the Security Interests and the Existing Liens and
except as permitted by the Loan Agreement, the Company is the owner and
holder of, and has rights in and good title to, the Collateral free from
any Lien of any Person, other than the Collateral Agent, and at all
times the Collateral shall be and remain free of all such Liens.
(b) The Company has requisite corporate power and authority to
execute and deliver this Agreement and to sell, assign and transfer, as
the case may be, the Collateral to the Collateral Agent and to grant to
the Collateral Agent a valid and perfected security interest in the
Collateral as contemplated by this Agreement, subject to no Liens other
than Permitted Liens; the execution and delivery of this Agreement and
the sale, assignment and transfer, as the case may be, of the Collateral
and the grant of a valid and perfected security interest in the
Collateral as contemplated by this Agreement, have been duly authorized
by all necessary corporate action; this Agreement and all related
documents executed by or on behalf of the Company pursuant to this
Agreement have been duly executed and delivered by the Company; and the
Company shall defend the Collateral
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against all claims and demands of all Persons at any time claiming the
same or any interest therein.
(c) Except for the financing statements and security agreements
identified on Schedule 5.11 to the Disclosure Letter with respect to the
Existing Liens and other liens in respect of which the Company does not
and will not have any further liability or obligation, the Company has
not heretofore signed any financing statement or security agreement that
covers any of the Collateral, and no such financing statement or
security agreement is now on file in any public office in any
jurisdiction.
(d) As long as any amount remains unpaid on any of the Secured
Obligations, the Company shall not enter into or execute, or permit to
be on file in any public office in any jurisdiction, any security
agreement or financing statement covering the Collateral, other than any
(i) security agreements and financing statements in favor of the Secured
Parties hereunder and (ii) security agreements and financing statements
in respect of Permitted Liens.
(e) The Company authorizes the Collateral Agent to file, in the
Collateral Agent's discretion and at the Company's expense, in
jurisdictions where this authorization will be given effect, financing
statements and continuation statements covering the Collateral signed
only by the Collateral Agent, and hereby appoints the Collateral Agent
as the Company's attorney-in-fact to sign and file any such financing
statements and continuation statements covering the Collateral. The
Company shall, at its expense, execute, deliver, file and record any
such documents, assignments, agreements, or statements (including,
without limitation, financing and continuation statements under the UCC)
and take any other action that from time to time may be necessary or
desirable, or that the Collateral Agent may request, in order to create,
preserve, perfect, confirm or validate the Security Interests granted
hereunder or to enable the Secured Parties to obtain the full benefits
of, or to enforce their rights, powers and remedies under, this
Agreement; and the Collateral Agent may, at any time or times, file as a
financing statement any counterpart, copy or reproduction of this
Agreement.
(f) Except for the Accounts identified on Schedule 5.11 to the
Disclosure Letter as being subject to a Lien, the Company shall not
transfer, sell or hypothecate any Account except upon the prior written
consent of the Collateral Agent or as permitted by Section 5.25 of the
Loan Agreement.
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(g) The Company's chief executive office and principal place of
business is in Tampa, Florida and Inventory and all books and records
relating to the Collateral (including, but not limited to, credit files,
computer programs, printouts, other computer materials, and records, and
all customer lists, advertising materials and reservations systems) are
located only at the locations set forth in Schedule I to this Agreement.
The Company shall not change its name, the location of its chief
executive office or principal place of business, or remove Collateral or
such books and records to locations that are not set forth in such
Schedule I, unless the Company shall have given the Collateral Agent
prior written notice thereof and taken all action (or made arrangements
to take such action substantially simultaneously with such change if it
is impracticable to take such action in advance) necessary or reasonably
requested by the Collateral Agent to amend each financing statement or
continuation statement so that it is not seriously misleading, or so as
to cause the Collateral Agent to continue to maintain its lien on, and
security interest in, the Collateral subject only to Permitted Liens.
Notwithstanding the foregoing, if for any reason Inventory is at any
time kept or located at locations other than those specified in Schedule
I to this Agreement or which may hereafter be consented to by the
Collateral Agent, the Collateral Agent shall nevertheless have and
retain a security interest therein.
(h) With respect to products and proceeds included in the
Collateral, any and all material amounts of cash included in the
Collateral shall promptly be deposited only into such accounts at
banking institutions (A) as the Company may from time to time designate
and (B) at all times following the date which is 30 days after receipt
of a written request to that effect from the Collateral Agent, which
request is made after a default or an Event of Default shall have
occurred and be continuing, as shall have a lock-box agreement, in form
reasonably satisfactory to the Collateral Agent (a "Lock-Box
Agreement"), in full force and effect; provided, however, that unless an
Event of Default shall have occurred and be continuing, any such deposit
shall not restrict the Company's use of such proceeds, or (ii) with
respect to Loan Collateral, the Loan Collateral Account. Upon receipt of
such request, the Company shall promptly enter into deposit arrangements
and a Lock-Box Agreement with a banking institution reasonably
acceptable to the Collateral Agent.
(i) Except for Permitted Liens and the asset dispositions
permitted under Section 5.16 or 5.25 of the Loan Agreement (and then
only to the extent permitted under the Loan Agreement), the Company
shall not sell or otherwise transfer or encumber or dispose of the
Collateral or any interest therein without the prior written consent of
the Collateral Agent.
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(j) The Company shall not release or surrender any guarantee,
suretyship agreement or security for any Accounts at any time or times
except in the ordinary course of business consistent with historical
collection practices.
(k) If any certificates of title or similar documents are at any
time issued or outstanding with respect to any Inventory, the Company
shall promptly advise the Collateral Agent thereof, and the Company
shall promptly cause the interest of the Collateral Agent to be properly
noted thereon, and if any certificates of title or similar documents are
so issued or outstanding at the time this Agreement is executed by or on
behalf of the Company, then the Company shall have caused the interest
of the Collateral Agent so to have been properly noted at or before the
time of such execution; and the Company shall further promptly deliver
to the Collateral Agent any such certificate of title or similar
document.
(l) The Company shall promptly deliver or cause to be delivered
to the Collateral Agent (or if such property is required to be delivered
to another creditor whose lien is senior to the lien hereof, to such
other creditor), duly endorsed in a manner reasonably satisfactory to
the Collateral Agent (and such other creditor), all Instruments, if any,
at any time representing all or any of the Collateral to be held as
Collateral pursuant to this Agreement.
(m) The Company shall use diligent commercially reasonable
efforts consistent with past practice to cause to be collected from
their respective account debtors, as and when due, any and all amounts
owing under or on account of each Account (including, without
limitation, Accounts that are delinquent, such Accounts to be collected
in accordance with lawful collection procedures) and shall apply
forthwith upon receipt thereof all such amounts as are so collected to
the outstanding balance of such Account. Subject to the rights of the
Collateral Agent and the other Secured Parties, if no Event of Default
has occurred and is continuing, the Company may allow, in the ordinary
course of business as adjustments to amounts owing under such Accounts,
(i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which the Company
finds appropriate in accordance with sound business judgment and (ii) a
refund or credit due as a result of returned or damaged merchandise or
inadequately rendered service, all in accordance with the Company's
ordinary course of business consistent with historical collection
practices. The costs and expenses (including, without limitation,
attorneys' fees) of collection, whether incurred by the Company, the
Collateral Agent or the Lenders, shall be borne by the Company.
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(n) The Company shall not amend, modify, terminate or waive any
provision of any agreement, contract or other instrument giving rise to
an Account or otherwise constituting Collateral, except for amendments,
modifications, terminations or waivers which would not adversely affect
the Secured Parties and except that the Company may amend, modify,
terminate or waive provisions of agreements, contracts or other
instruments giving rise to Accounts or otherwise constituting collateral
in the ordinary course of business.
(o) The Company shall promptly obtain a written notification and
assignment of security interest, in substantially the form Exhibit A
attached hereto, duly executed and delivered by the Trustee under all
Securitization Transactions.
Section 4. Further Assurances as to the Collateral; Collateral Agent as
Attorney-In-Fact. At the Collateral Agent's request, the Company shall execute
and deliver to the Collateral Agent, at any time or times hereafter, all
Supplemental Documentation, in form and substance reasonably acceptable to the
Collateral Agent, and the Company shall pay the costs of any recording or filing
thereof. The Company hereby irrevocably makes, constitutes, and appoints the
Collateral Agent (and all Persons designated by the Collateral Agent for that
purpose) as the Company's true and lawful attorney (and agent-in-fact) to sign
the name of the Company on any Supplemental Documentation and to deliver any
Supplemental Documentation to such Persons as the Collateral Agent, in its sole
discretion, may elect; provided, that if no Event of Default shall have occurred
and be continuing the Collateral Agent shall not, in the case of Supplemental
Documentation other than financing statements, exercise the power of attorney
granted in this Section 4 to sign and deliver such Supplemental Documentation
unless the Company has failed to sign and deliver such Supplemental
Documentation promptly after the Collateral Agent has reasonably requested it to
do so. The Company agrees that a photocopy or other reproduction of this
Agreement or of a financing statement is sufficient as a financing statement.
Section 5. Assignment of Security Interest. If at any time the Company
shall take and perfect a security interest in any property of an Account debtor
or any other Person to secure payment and performance of an Account, the Company
shall promptly assign such security interest to the Collateral Agent. Such
assignment need not be filed of public record unless necessary to continue the
perfected status of the security interest against creditors of and transferees
from the Account debtor or other Person granting the security interest.
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Section 6. Maintenance of Records; Additional Information. (a) The
Company will keep and maintain, at its own cost and expense, satisfactory and
complete records of the Collateral.
(b) The Company shall furnish to the Collateral Agent from time to time
such additional information and copies of such documents relating to this Agree
ment, the Collateral, the Secured Obligations and the Company's financial
condition as the Collateral Agent may reasonably request. The Company will
promptly report to the Collateral Agent any occurrence or condition known to or
which becomes known to the Company having any material adverse effect upon the
fair market value of the Inventory or the Accounts.
Section 7. Inspection and Verification. The Collateral Agent and such
Persons as the Collateral Agent may reasonably designate shall have the right,
in connection with the Loan or the Secured Parties' security interest in the
Collateral, during the Company's usual business hours upon reasonable prior
notice and as often as may be reasonably requested, subject to any
confidentiality agreements existing between the Company and third parties, (i)
to inspect the Collateral, all books and records related thereto (and to make
extracts and copies from such records, subject to reasonable objection by the
Company and the terms of Section 8.11 of the Loan Agreement), and the premises
upon which any of the Collateral is located, (ii) to discuss the Company's
affairs with the executive officers of the Company and, upon notice to the
executive officers, such other officers as the Collateral Agent may reasonably
request, and its independent accountants, and (iii) to verify under reasonable
procedures the validity, amount, quality, quantity, value and condition of or
any other matter relating to the Collateral (including, without limitation,
Collateral in the possession of a third Person and contacting Account debtors or
a third Person possessing such Collateral for the purpose of making such a
verification); provided, that reimbursement of expenses incurred by or on behalf
of the Collateral Agent in connection therewith shall be governed by Section 8.3
of the Loan Agreement; provided, further, that so long as a Default or an Event
of Default has not occurred and is not continuing, the Collateral Agent may
contact the creditors, customers and clients of the Company and its Subsidiaries
only with the prior consent of the Company (which consent will not be
unreasonably withheld). The Collateral Agent shall have the absolute right to
share any information it gains from such inspection or verification with any
other Secured Party, subject to the terms of Section 8.11 of the Loan Agreement.
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Section 8. Rights and Remedies Upon Default. If an Event of Default has
occurred and is continuing:
(a) The Collateral Agent shall have and may exercise in respect
of the Collateral and the Secured Obligations any or all of the rights
and remedies of a secured party under the UCC, and as otherwise granted
in this Agreement or under any other Applicable Law or under any other
agreement of the Company now or hereafter in effect, including, without
limitation, the right and power to sell, at public or private sale or
sales, or otherwise dispose of, or otherwise utilize the Collateral and
any part or parts thereof in any manner authorized or permitted under
the UCC after default by a debtor, and to apply the proceeds thereof as
specified in Section 9 of this Agreement. Without limiting the
foregoing, the Collateral Agent shall have the right to take possession
of all or any part of the Collateral (including, without limitation, all
books, records, papers and documents of the Company or in the Company's
possession or control relating to the Collateral which are not already
in the Collateral Agent's possession), and for such purpose may enter
upon any premises upon which any of the foregoing are situated and
remove the same therefrom without any liability for trespass or damages
thereby occasioned. To the extent permitted by Applicable Law, the
Company expressly waives any notice of sale or other disposition of the
Collateral; and to the extent any such notice is required and cannot be
waived, the Company agrees that if such notice is given in the manner
provided in Section 26 hereof at least 15 days before the time of the
sale or disposition, such notice shall be deemed reasonable and shall
fully satisfy any requirement for giving of said notice. The Collateral
Agent may impose any limitations and conditions in connection with any
such sale or disposition as the Collateral Agent deems advisable or
necessary to comply with Applicable Law; and the Collateral Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given and may adjourn any public or private sale. The
Collateral Agent reserves the right to reject any and all bids at such
sale that in its commercially reasonable discretion it shall deem
inadequate. The Company shall execute and deliver such documents as the
Collateral Agent deems advisable or necessary in order that any such
sale or disposition be made in compliance with Applicable Law.
(b) The Company hereby waives all rights to xxxxxxxx the assets
of the Company, including any such right with respect to the Collateral.
(c) All recitals in any instrument of assignment or any other
instrument executed by the Collateral Agent incident to sale, lease,
transfer,
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assignment or other disposition, lease or utilization of the Collateral
or any part thereof hereunder shall be sufficient proof of the matters
stated therein and no other proof shall be requisite to establish full
legal propriety of the sale or other action taken by the Collateral
Agent or of any fact, condition or thing incident thereto and all
prerequisites of such sale or other action or of any fact, condition or
thing incident thereto shall be presumed to have been performed or to
have occurred.
(d)(i) The Collateral Agent shall have the right to take control
of all proceeds of the Collateral (whether cash proceeds or non-cash
proceeds) and to notify any and all account debtors, lessees, or other
obligors to make payment on any and all accounts, leases, or obligations
directly to the Collateral Agent; and, in such circumstances, the
Company shall, upon the request of the Collateral Agent, likewise notify
any and all such account debtors, lessees or other obligors to make
payment directly to the Collateral Agent. Upon demand by the Collateral
Agent at any time following the occurrence of an Event of Default, all
proceeds of Accounts, whether such proceeds be cash proceeds or non-cash
proceeds, received by the Company and not otherwise deposited in an
account provided for in Section 3(h)(ii), shall be held in trust by the
Company for the account of the Collateral Agent, shall not be commingled
with any other funds, accounts, monies or property of the Company, and
shall be accounted for, paid over, transmitted and delivered to the
Collateral Agent in the form as received by the Company promptly upon
receipt thereof by the Company.
(ii) At any time after demand as hereinabove provided, and in any
event without demand, after any of the Secured Obligations shall become
due, whether by acceleration or otherwise, the Collateral Agent shall
have the right in its own name or in the name of the Company to demand,
collect, receive, xxx for, compound and give acquittance for, any and
all amounts due or to become due on the Accounts and to endorse the name
of the Company on all checks, drafts, commercial paper and other
instruments given in payment or part payment thereof, and in its
discretion to settle, compromise, prosecute or defend any action, claim
or proceeding with respect thereto which the Collateral Agent may deem
necessary or appropriate to protect and preserve and realize upon the
Security Interest and collateral assignment of the Collateral Agent in
the Accounts and the proceeds thereof and security therefor including,
without limitation, the right to sell, assign, pledge, transfer and make
any agreement respecting or otherwise deal with the Accounts and to
exercise all rights of the Company thereunder.
14
(e) All proceeds of Inventory, whether cash proceeds or non-cash
proceeds, including, without limitation, proceeds that constitute
Accounts or that are included in the Collateral as Accounts, and
proceeds that represent the proceeds of Accounts, received by the
Company and not otherwise deposited in an account provided for in
Section 3(h)(i)(B), shall be held in trust by the Company for the
account of the Collateral Agent, shall not be commingled with any other
funds, accounts, monies or property of the Company, and shall be
accounted for, paid over, transmitted and delivered to the Collateral
Agent in the form as received by the Company promptly upon receipt
thereof by the Company.
Section 9. Application of Proceeds. Any monies or property
actually received by the Collateral Agent pursuant to the exercise of any rights
or remedies referred to in Section 8 of this Agreement (including the sale or
other disposition of any portion of the Collateral) shall be applied in the
following order:
First, to payment of the costs and expenses of such sale or other
realization, including reasonable compensation to agents and counsel for
the Collateral Agent, and all expenses, liabilities and advances
incurred or made by the Collateral Agent in connection therewith, and
any other unreimbursed expenses for which the Collateral Agent or any
Secured Party is to be reimbursed pursuant to the Loan Agreement or
Section 10, 13 or 15 of this Agreement;
Second, to the ratable payment of accrued but unpaid Take-Out
Premium;
Third, to the ratable payment of accrued but unpaid interest on
the Secured Obligations in accordance with the provisions of the Loan
Agreement;
Fourth, to the ratable payment of unpaid principal of the Secured
Obligations;
Fifth, to the ratable payment of all other Secured Obligations,
until all Secured Obligations shall have been paid in full;
Sixth, to the ratable payment of such amounts, if any, as shall
be required to be paid pursuant to Section 9-504(1)(c) of the UCC and
any similar provision of Applicable Law; and
Finally, to payment to Company or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
15
Section 10. Reimbursement of Collateral Agent. The Company shall
forthwith upon demand pay to the Collateral Agent:
(a) The amount of any taxes that the Collateral Agent may have
been required to pay by reason of the Security Interests or to free any
of the Collateral from any Lien thereon; provided, that so long as no
Event of Default has occurred and is continuing, Company shall not be
obligated to pay or discharge any such tax or Lien so long as the
amount, validity or applicability thereof is contested diligently in
good faith and by appropriate proceedings and so long as any reserves or
other appropriate provisions as may be required by generally accepted
accounting principles shall have been made therefor.
(b) The amount of any and all costs and expenses, including the
reasonable fees and disbursements of counsel and of any other experts,
that the Collateral Agent reasonably may incur in connection with (i)
the administration or enforcement of this Agreement, including such
expenses as are incurred to preserve the value of the Collateral and the
validity, perfection, rank and value of any Security Interest, (ii) the
collection, sale or any other disposition of any of the Collateral,
(iii) the exercise by the Collateral Agent of any of the rights
conferred upon it hereunder or (iv) any default or Event of Default.
Any such amount not paid within five Business Days following written
demand therefor shall bear interest at a rate equal to the rate specified in
Section 2.4(b) of the Loan Agreement. This Section 10 shall survive the
termination of this Agreement.
Section 11. Exculpatory Provisions. (a) Neither the Collateral Agent
nor any of its officers, directors, employees or agents shall be liable to the
Company for any action lawfully taken or omitted to be taken by them under or in
connection with this Agreement. The Collateral Agent shall not be responsible in
any manner to any of the other Secured Parties for the value, validity, due
execution, genuineness, effectiveness, legality, enforceability or sufficiency
of this Agreement, the Loan Agreement or all or any portion of the Collateral,
or any of the certificates, documents or instruments contemplated by the
foregoing, or for the failure of the Company or any other party to perform its
obligations under them or for any recitals, statements, representations or
warranties made by the Company in this Agreement or for the value, sufficiency,
title or condition of all or any portion of the Collateral. The Collateral Agent
shall not be under any obligation to any of the other Secured Parties to
ascertain or to inquire as to the performance or observance on the part of the
Company of any of the terms, covenants or conditions of any agreements or to
inspect the properties, books or records of the Company or to ascertain or to
inquire as to the financial condition of the Company.
16
(b) The Collateral Agent shall not be responsible to any Person for the
existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interests in any of the
Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder. The Collateral Agent shall have no duty
to any Person to ascertain or inquire as to the performance or observance of any
of the terms of this Agreement by the Company.
(c) The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property, it being understood that neither the
Collateral Agent nor any other Secured Party shall have any responsibility for
(i) ascertaining or taking action with respect to exchanges, maturities, tenders
or other matters relative to any Instruments, whether or not the Collateral
Agent has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
portion of the Collateral.
Section 12. Secured Parties' Right of Set-Off and Bankers' Lien. The
Company recognizes and agrees that with respect to any time or other deposit,
certificate of deposit or any other balance of account standing to the credit of
the Company on the books of the Collateral Agent or any other Secured Party, the
Collateral Agent or the Collateral Agent through a Secured Party has a right of
set-off and, to the extent any Secured Party is a banking institution or of a
character otherwise qualified to assert the same, a bankers' lien to the full
extent permitted by law. The Company further agrees that the Secured Parties may
exercise such right of set-off or bankers' lien at any time when an Event of
Default shall have occurred and is continuing, regardless of the stated maturity
of any time deposit or other such credit balance.
Section 13. Other Expenses. (a) In the event the Company fails to pay
or obtain the discharge of any claim or Lien asserted against any material
portion of the Collateral, other than a Permitted Lien, the Company shall so
notify the Collateral Agent in writing and, regardless of whether such notice is
given, the Collateral Agent may, at any time or times, in its discretion and
without waiving any Event of Default or waiving or releasing any obligation or
duty of the Company under this Agreement or any Supplemental Documentation, the
Loan Agreement or any other Loan Document, make such payment or any part thereof
or obtain such discharge or take any other action with respect thereto that the
Collateral Agent deems advisable.
17
(b) In the event that the Company fails to comply with any provision of
the Loan Agreement, this Agreement or any other Loan Document, such that the
value of any Collateral or the validity, perfection, rank or value of any
security interest granted hereunder is thereby diminished or put at risk, the
Collateral Agent may, but shall not be required to, effect such compliance on
behalf of the Company.
(c) In the event the Company fails to pay promptly all insurance
expenses relating to the Collateral, any and all expenses of protecting,
storing, warehousing, appraising, insuring, handling, maintaining and shipping
the Collateral, any and all excise, property, sales and use taxes imposed by any
state, federal or local authority on any of the Collateral other than taxes that
are being contested as permitted by Section 10(a) hereof, or any and all
expenses in respect of the sale or other disposition of the Collateral, the
Collateral Agent may, at its option, but shall not be required to, pay the same.
(d) The Company shall reimburse the Collateral Agent on demand for all
amounts so paid, incurred or advanced by the Collateral Agent pursuant to
subsections (a), (b) and (c) of this Section 13, for any and all other sums for
which the Company may become liable hereunder, and for all costs, fees and
expenses (including reasonable attorneys' fees, legal expenses and court costs)
incurred by the Collateral Agent in enforcing or protecting the Security
Interests granted hereunder or any of the Collateral Agent's rights or remedies
on behalf of the Secured Parties under this Agreement, and all such amounts,
sums, costs, fees and expenses, together with interest thereon at the rate
required by Section 2.4(a) of the Loan Agreement, shall, until paid to the
Collateral Agent, be additional Secured Obligations hereunder.
Section 14. Absolute Interest. (a) All rights of the Collateral Agent
hereunder, and all obligations of the Company hereunder, shall be absolute and
unconditional irrespective of (i) any lack of validity or enforceability of any
provision of the Loan Agreement or any other Loan Document, any agreement with
respect to the Secured Obligations or any other agreement or instrument relating
to any of the foregoing, (ii) any change in the time, manner or place of payment
of or in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Loan Agreement,
any other Loan Document or any other agreement or instrument or (iii) any
exchange, release or nonperfection of any Collateral, or any release or
amendment or waiver of or any consent to or departure from any guarantee, for
all or any of the Secured Obligations or this Agreement.
18
(b) This Agreement shall not be construed as relieving the Company from
full liability on the Secured Obligations or any and all future and other
indebtedness secured hereby or for any deficiency thereon.
(c) Following an Event of Default, the Collateral Agent shall be
subrogated to all of the Company's interests, rights and remedies in respect to
the Collateral and all security now or hereafter existing with respect thereto
and all guaranties and endorsements thereof and with respect thereto.
Section 15. Indemnity. (a) In addition to the payments pursuant to
Sections 10 and 13, the Company shall indemnify, defend and hold harmless the
Collateral Agent and the other Secured Parties and the officers, directors,
employees and agents of the Secured Parties (collectively, the "Indemnitees")
from and against, and pay or reimburse the Indemnitees for, (i) any and all
taxes, and all other assessments or charges made by any governmental authority,
relating to the execution and delivery of this Agreement, and (ii) any and all
liabilities, losses, damages, penalties, judgments, suits, claims, costs and
expenses of any kind or nature whatsoever (including, without limitation, the
reasonable fees and disbursements of a single counsel) in connection with (A)
any breach of a representation, warranty or covenant hereunder or (B) any
investiga tive, administrative or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto, which may be imposed on,
incurred by or asserted against such Indemnitee, in any manner relating to or
arising out of or in connection with this Agreement (collectively, the
"Indemnified Liabilities"), and to reimburse each Indemnitee, upon its demand as
incurred for any cost or expenses (including, without limitation, the reasonable
fees, expenses and disbursements of a single counsel) incurred in connection
with investigating, defending or preparing to defend or participating (including
as a witness) in any investigative, administrative or judicial proceeding
whether or not such Indemnitee shall be designated a party thereto, whether
commenced or threatened, with respect to any such actual, alleged or threatened
liability, loss, damage, penalty, judgment, suit, claim, cost or expense;
provided that no Indemnitee shall have a right to be indemnified hereunder for
its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
(b)(i) The Collateral Agent shall or shall cause each Indemnitee to
notify the Company promptly of each event of which it has knowledge which may
give rise to a claim under the indemnification provisions of this Section 15;
provided, that the failure so to notify the Company shall not impair the
Company's obligations under this Section 15 except to the extent the defense of
such claim is actually prejudiced thereby.
19
(ii) If any investigative, judicial or administrative proceeding or
arbitration arising from any of the foregoing is brought against any Indemnitee,
the Company shall assume the defense thereof on behalf of such Indemnitee,
including the employment of counsel reasonably satisfactory to such Indemnitee
and payment of all expenses relating thereto. The Indemnitee shall have the
right to employ separate counsel in any such proceeding or arbitration and
participate in the defense thereof; provided, that the fees and expenses of such
separate counsel shall be at the expense of the Indemnitee, rather than the
Company, unless (A) the employment of such separate counsel has been
specifically authorized by the Company or (B) the named parties to any such
action (or any impleaded parties), or the Indemnitee, shall have been advised by
its counsel that there may be one or more legal defenses available to the
Indemnitee which are different from or additional to those available to the
Company. If the provisions of clause (B) immediately above are met, the Company
shall not have the right to assume the defense of such action on behalf of the
Indemnitee. The Company shall not be liable for any settlement of any such
proceeding effected without the written consent of the Company, but if settled
with the written consent of the Company or if there is a final judgment for the
plaintiff in any such action, the Company shall indemnify and hold harmless the
Indemnitee from and against any loss or liability by reason of such settlement
or judgment. The Company shall not enter into any settlement of, or consent to
the entry of any judgment with respect to, any actual or alleged Indemnified
Liabilities without the prior written consent of the Indemnitee, unless such
settlement or judgement (x) includes an unconditional release of the Indemnitees
from all liabilities arising out of such actual or alleged Indemnified Liability
and (y) does not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any Indemnitee.
(iii) At any time after the Company has assumed the defense of any
proceeding in respect of which indemnity has been sought hereunder against the
Company, the Indemnitee may elect, by written notice to the Company, to withdraw
its request for indemnity and thereafter the defense of such proceeding shall be
maintained by counsel of the Indemnitee's choosing and at the Indemnitee's
expense.
(iv) To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding provisions may be unenforceable because it
is violative of any law or public policy, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under Applicable Law. All Indemnified
Liabilities shall be payable on demand.
20
(c) The obligations of the Company under this Section 15 shall survive
the termination of this Agreement and the discharge of the Company's other
obligations hereunder.
Section 16. No Waiver; Cumulative Remedies. No action or inaction of
the Collateral Agent will be deemed to waive any of the rights, powers or
remedies of the Collateral Agent hereunder except pursuant to a writing, signed
by the Collateral Agent, and then only to the extent expressly set forth
therein. A waiver by the Collateral Agent of any right, power or remedy on any
one occasion will not bar the exercise of any right, power or remedy hereunder
on any future occasion. No failure of the Collateral Agent to exercise nor delay
of the Collateral Agent in exercising any right, power or remedy will preclude
the exercise of any other right, power or remedy. If the Collateral Agent
accepts payment of any amount secured hereby after its due date, it will not
thereby be deemed to have waived its right to require prompt payment when due of
all other amounts payable hereunder. Each right, power and remedy of the
Collateral Agent provided for in this Agreement or now or hereafter existing at
law or equity or by statute or otherwise is cumulative and concurrent and is in
addition to every other such right, power or remedy of the Collateral Agent, and
the exercise of any one or more of any such rights, powers or remedies with
respect to any of the Collateral will not preclude the simultaneous or later
exercise by the Collateral Agent of any other right, power or remedy with
respect to any other Collateral.
Section 17. Appointment of Co-Agents. At any time or times, in order to
comply with any legal requirement in any jurisdiction, the Collateral Agent may
appoint a bank or trust company or one or more other Persons, either to act as
co-agent or co-agents, jointly with the Collateral Agent, or to act as separate,
agent or agents on behalf of the Secured Parties with such power and authority
as may be necessary for the effectual operation of the provisions hereof and may
be specified in the instrument of appointment (which may, in the discretion of
the Collateral Agent, include provisions for the protection of such co-agent or
separate agent).
Section 18. Termination of Security Interests; Release of Collateral.
(a) Upon the payment in full of the outstanding principal amount of, and all
premium, if any, and accrued interest on the Loans in accordance with the Loan
Agreement and payment or satisfaction of all other Secured Obligations, the
Security Interests shall terminate and all rights to the Collateral shall revert
to the Company. Upon any such termination of the Security Interests, the
Collateral Agent will, at the expense of the Company, execute and deliver to the
Company such documents, and take such other actions, as the Company shall
reasonably request to effect or evidence the termination of the Security
Interests or the release of such Collateral, as the case may be.
21
(b) If at any time a payment of the Loans or any of the other Secured
Obligations is rescinded or must otherwise be returned upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, the provisions of this
Agreement and the security interest created hereby shall continue to be
effective or be reinstated, as the case may be, all as though such payment had
not been made.
Section 19. Contracts Not Assignable. Any provision in this Agreement
to the contrary notwithstanding, this Agreement shall not constitute an
agreement to assign or grant a security interest in any agreement, if an
attempted assignment thereof or grant of security interest therein, without the
consent of a third party thereto, would constitute a termination or breach
thereof (including, without limitation, any contract for investment advisory
services that would be so terminated or breached). From time to time at the
request of the Collateral Agent, the Company shall use its best efforts to
obtain the consent to the assignment and the Lien granted or purported to be
granted hereunder of the parties to such agreements. If such consent is not
obtained, or if an attempted assignment thereof or grant of security interest
therein would not be effective or would affect the rights of the Company
thereunder so that the Secured Parties would not in fact receive the benefit of
the Lien granted or purported to be granted hereunder, the Company will
cooperate with the Collateral Agent in any arrangement designed to provide such
benefits for the Secured Parties, including enforcement for the benefit of the
Secured Parties of any and all rights of the Company against a third party
thereto arising out of the breach or cancellation by such third party or
otherwise.
Section 20. 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 Collateral Agent. Any such waiver will be effective only in the specific
instance and for the specific purpose for which it is given.
Section 21. Successors and Assigns. This Agreement and the Lien in the
Collateral created hereunder are for the benefit of the Collateral Agent and the
Lenders and their successors, assigns and participants, and in the event of an
assignment of or the granting of a participation in all or any of the Secured
Obligations, the rights hereunder, to the extent applicable to the indebtedness
so assigned or participated out, may be transferred with such indebtedness. This
Agreement shall be binding on the Company and its successors and assigns.
Section 22. 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
22
unenforceability without invalidating or impairing the remaining provisions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section 23. 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 THE
OTHER "LOAN DOCUMENTS" OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR THE
RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 24. 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. THE COMPANY AGREES THAT
ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND EACH
OTHER "LOAN DOCUMENT" SHALL 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 THE COMPANY, MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED
IN SECTION 26.
Section 25. Agreement May Constitute Financing Statement. The Company
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 Collateral
Agent may determine such filing to be necessary or desirable.
23
Section 26. Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be given to such party 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. (a) if to the Collateral Agent, 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, tel: (000) 000-0000, fax: (000) 000-0000;
and (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.
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section 26.
Section 27. 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.
24
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:
GREENWICH STREET CAPITAL
PARTNERS II, L.P.,
as Collateral Agent
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By /s/
------------------------
Name:
its Managing Member
25
LENDERS:
GREENWICH STREET CAPITAL
PARTNERS II, L.P.
GREENWICH FUND, L.P.
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By /s/
------------------------
Name:
its Managing Member
26
Schedule I
to the
Borrower Security Agreement
Business Locations
IMC Mortgage Company
0000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Schedule II
to the
Borrower Security Agreement
Exceptions to Collateral
Master Repurchase Agreement Governing Purchase and Sale of Mortgage Loans, dated
as of December 8, 1995, as amended from time to time, between Nomura Asset
Capital Corporation, as Buyer, IMC Mortgage Company (as successor by merger to
Industry Mortgage Company, L.P.) as Seller.
Loan Agreement, dated as of September 30, 1996, as amended from time to time,
between IMC Mortgage Company, IMC Mortgage Company, L.P., and IMC Corporation of
America, as Borrowers, and Nomura Asset Capital Corporation, as Lender.
Warehouse Credit and Security Agreement (Single Family Mortgage Loans), dated as
of March 29, 1996 between Industry Mortgage Company, L.P. and IMC Corporation of
America, as Borrowers, and Residential Funding Corporation, as Lender.
Exhibit A
to the
Borrower Security Agreement
[Form of Notification and Acknowledgement]
