NOTE PURCHASE AND AMENDMENT AGREEMENT NO. 3
Note Purchase and Amendment Agreement No. 3 (this "Agreement"),
dated as of July 16, 1999, among IMC MORTGAGE COMPANY, a Delaware corporation
(the "Borrower"), GREENWICH STREET CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("GSCP"), GREENWICH FUND, L.P., a Delaware limited partnership
("Greenwich Fund"), GSCP OFFSHORE FUND, L.P., a Cayman Islands exempted limited
partnership ("Offshore" and, together with GSCP and Greenwich Fund, the
"Lenders"), GREENWICH STREET EMPLOYEES FUND, L.P., a Delaware limited
partnership ("GSEF"), TRV EXECUTIVE FUND, L.P., a Delaware limited partnership
(together with GSEF, the "New GSCP Funds", and, collectively, with the Lenders,
the "GSCP Funds"), GSCP, as Collateral Agent (the "Collateral Agent"), and each
of the subsidiaries of the Borrower signatory hereto, amending each of (i) the
Borrower Security Agreement (the "Borrower Security Agreement"), dated as of
October 12, 1998, among the Borrower, the Lenders and the Collateral Agent; (ii)
the Subsidiary Security Agreement, dated as of October 12, 1998 (the "Subsidiary
Security Agreement"), among the undersigned subsidiaries of the Borrower party
thereto (the "Subsidiary Grantors"), the Lenders and the Collateral Agent; (iii)
the Guarantee Agreement, dated as of October 12, 1998 (the "Guarantee
Agreement"), among the undersigned subsidiaries of the Borrower party thereto
(the "Subsidiary Guarantors") and the Lenders; and (iv) the Pledge Agreement,
dated as of October 12, 1998 (the "Pledge Agreement", and, collectively with the
Borrower Security Agreement, the Subsidiary Security Agreement and the Guarantee
Agreement, as each such agreement has been heretofore amended by Amendment
Agreement No. 1, dated as of February 11, 1999 ("Amendment Agreement No. 1"),
Amendment No. 2, dated as of April 19, 1999 ("Amendment Agreement No. 2"),
Amendment Agreement No. 3, dated as of May 20, 1999, the Note Purchase and
Amendment Agreement, dated as of May 18, 1999 (the "Note Purchase and Amendment
Agreement") and the Note Purchase and Amendment Agreement No. 2, dated June 18,
1999 ("Note Purchase and Amendment Agreement No. 2"), thereto, the "Subject
Agreements"), among the Borrower, the Lenders and the Collateral Agent.
RECITALS
A. The Borrower has entered into a Loan Agreement, dated as of
October 12, 1998 (the "Initial Loan Agreement"), among the Borrower and the
Lenders, pursuant to which the Lenders have agreed to extend to the Borrower
Commitments to loan, in the aggregate, $33,000,000, subject to the terms and
conditions set forth in the Initial Loan Agreement (the "Initial Loans").
B. In order to induce the Lenders to enter into the Initial Loan
Agreement and to extend the Initial Loans, the Borrower, the Subsidiary Grantors
and the Subsidiary Guarantors entered into each of the Subject Agreements to
which they are party.
C. The Lenders and the Borrower have also entered into (i)
Amendment No.1 (the "Amendment") to the Initial Loan Agreement, dated as of
February 11, 1999, providing for the Lenders to extend to the Borrower
additional commitments to loan in the aggregate an additional $5,000,000 (the
"Interim Loans"), and, together with the Subsidiary Guarantors, (ii) Amendment
Agreement No. 1, amending each of the Subject Agreements in connection with the
Amendment.
D. The Borrower, the Lenders, Greenwich Street Employees Fund,
L.P. ("GSEF"), and TRV Executive Fund, L.P. (together with GSEF, the "New GSCP
Funds", and, collectively with the Lenders, the "GSCP Funds") have entered into
an Acquisition Agreement, dated as of February 19, 1999 (the "Acquisition
Agreement"), pursuant to which the Borrower will issue and deliver to the GSCP
Funds common stock representing approximately 93.5% of the common stock of the
Borrower outstanding after such issuance and the New GSCP Funds have succeeded
by assignment to interests of the Lenders in the Initial Loans and the Interim
Loans.
E. At the Borrower's request, the GSCP Funds have made certain
additional loans to the Borrower to fund monthly servicing advances in respect
of its securitizations pursuant to Amendment Agreement No. 2, and certain
secured promissory notes, dated April 19, 1999, in the aggregate amount of
$14,959,676, pursuant to the Note Purchase and Amendment Agreement in the
aggregate amount of $33,000,000, and pursuant to the Note Purchase and Amendment
Agreement No. 2 in the aggregate amount of $36,000,000, which the Borrower has
repaid in the ordinary course and in accordance with the terms of such
agreements and promissory notes.
F. At the Borrower's request, the GSCP Funds are willing to
provide on the date hereof additional loans to the Borrower in the aggregate
amount of $46,250,000 (the "July Interim Loans"), which June Interim Loans are
to be evidenced by secured promissory notes of the Borrower in the form attached
hereto as Exhibit A (the "July Interim Notes") and are to be entitled to the
benefit of the guarantees and security provided under the Subject Documents.
G. Pursuant to the Borrower Security Agreement and the Subsidiary
Security Agreement, Borrower and the Subsidiary Grantors have granted the
Collateral Agent a continuing perfected security interest in, and a lien upon,
all of the Collateral (as defined therein), including all of the Borrower's and
such Subsidiary Grantors' rights to payment of money arising out of, relating
to, or created in connection with all Securitization Receivables, any other
interests of the Borrower or such Subsidiary Grantors in the Securitization
Transactions (with certain exceptions), all Servicing Fees, Servicing Rights,
Servicing Advances (as such capitalized terms are defined in such agreements)
and all cash from time to time deposited in any deposit account of any of the
Company or any Subsidiary Grantor with the Lenders in connection with such
agreements.
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H. All collections in respect of Securitization Transactions are
paid to National City Bank as the Designated Depository Institution (within the
meaning of the various Pooling and Servicing Agreements governing the
Securitization Transactions) (the "Securitization Bank") for deposit to various
principal and interest or other accounts (collectively "Securitization
Accounts") established at the Securitization Bank in respect of the
Securitization Transactions. The Borrower is authorized under Pooling and
Servicing Agreements with the Trustee for such Securitization Transactions to
withdraw funds from time to time from the Securitization Accounts in payment of
Servicing Fees and in repayment of Servicing Advances made by the Borrower as
servicer in respect of such Securitization Transactions.
I. The Borrower has entered into a letter agreement, dated June
21, 1999 (together with any subsequent letter agreement from a Securitization
Bank pursuant to Section 2 below, a "Payment Blockage Letter"), with the
Securitization Bank pursuant to which the Securitization Bank acknowledges the
GSCP Funds' perfected security interest in and lien upon the Collateral,
including the right to payment of money arising out of, relating to or created
in connection with all Securitization Transactions, including all Servicing
Fees, Servicing Rights and Servicing Advances, and agrees not to honor any
withdrawal or payment requests by Borrower or any Subsidiary Grantor from such
Securitization Accounts (other than payments to or for the benefit of the
beneficiaries of such Securitizations) without written confirmation from the
Collateral Agent.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Borrower, the Subsidiary Guarantors, the Subsidiary Grantors, the Collateral
Agent, and the GSCP Funds hereby agree as follows:
1. Repayment of July Interim Loans. So long as any amounts are
outstanding under the July Interim Notes, the Borrower (i) shall provide the
Collateral Agent with written notice each Business Day of amounts becoming
available in any Securitization Account to be withdrawn or received by the
Borrower or any Subsidiary Grantor in respect of any Securitization Transaction,
including in respect of any Servicing Advances, Servicing Fees and Servicing
Rights ("Available Funds"), (ii) shall cause such Available Funds immediately
upon becoming available for withdrawal, to be wire transferred to an account or
accounts of such bank or banks as may be specified by the Collateral Agent for
application to repayment of amounts owed by the Borrower to the GSCP Funds in
respect of the June interim loans, and (iii) shall, in the event any such
Available Funds are, notwithstanding the provisions of the foregoing clause
(ii), withdrawn or received by the Borrower or any Subsidiary Grantor, cause
such funds to be held by the Borrower or such Subsidiary Grantor, as the case
may be, in trust for the benefit of GSCP Funds, separate and apart from, and not
commingled with, its general funds and applied solely as provided in the
foregoing clause (ii).
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2. Notice of Change in Securitization Bank or Securitization
Accounts; Payment Blockage Letter, etc. The Borrower represents and warrants to
the GSCP Funds (i) that National City Bank serves as the Designated Depository
Institution (as defined in the various Pooling and Servicing Agreements with
respect to each Securitization Transaction) with respect to the Securitization
Accounts established by the Borrower pursuant to each Securitization
Transaction, (ii) that the accounts listed in Annex A hereto are the only
Securitization Accounts established in respect of the Securitization
Transactions and (iii) that no consent or approval is required to be obtained
from the Trustee or Certificate Insurer in respect of any Securitization
Transaction or any other person in connection with the entry into the Payment
Blockage Letter. The Borrower shall, prior to establishing any new
Securitization Account or designating any depository institution to serve as a
Securitization Bank at which any Securitization Account is to be established,
(i) notify the GSCP Funds of such proposed change and (ii) obtain a letter
agreement from the Securitization Bank or with respect to the new Securitization
Account pursuant to which the Securitization Bank acknowledges the GSCP Funds'
perfected security interest in and lien upon the Collateral, including the right
to payment of money arising out of, or relating to or created in connection
with, all Securitization Transactions, including all Servicing Fees, Servicing
Rights and Servicing Advances, and agrees not to honor any withdrawal or payment
requests by Borrower or any Subsidiary Grantor from such Securitization Account
(other than payments to specified permitted payees to or for the beneficiaries
of such Securitizations) without written confirmation from the Collateral Agent,
which letter agreement shall be satisfactory to the Collateral Agent in
substance and form. In the event it is determined that any consent is required
from the Trustee or Certificate Insurer or any other person in connection with
the entrance by the Securitization Bank into any Payment Blockage Letter, the
Borrower and each Subsidiary Grantor shall use its best efforts to obtain any
such required consent.
3. Commitment Fee. In connection with the July Interim Loans, the
Borrower shall pay to the GSCP Funds on the date of such borrowing a commitment
fee equal to $1,250,000 and hereby directs the GSCP Funds to apply that portion
of the borrowings to payment of the fee.
4. Amendment to Borrower Security Agreement. Section 1 of the
Borrower Security Agreement is hereby amended by deleting therefrom the defined
term "Secured Obligations" and replacing it in its entirety with the following:
"Secured Obligations" means (i) the full and prompt
payment of the Reimbursement Obligations, the principal of and premium
(including, without limitation, Take-Out Premium) and interest on the
Loans and the loans evidenced by the New Interim Notes, the May Interim
Notes, the June Interim Notes and the July Interim Notes (including,
without limitation, interest accruing after the date of any filing by
the Company of any petition in bankruptcy or the commencement
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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 theLoan Agreement, such New Interim Notes, May Interim
Notes, June Interim Notes or July Interim Notes, as the case may be,
(ii) the payment of all other indebtedness and other amounts payable by
the Company under the Reimbursement Agreement, the Loan Agreement, the
Notes, the New Interim Notes, the May Interim Notes, the June Interim
Notes, the July Interim 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 Reimbursement Agreement, the Loan Agreement, the
Notes, the New Interim Notes, the May Interim Notes, the June Interim
Notes, the July Interim Notes, this Agreement and all other Loan
Documents, and (iv) any renewals or extensions of any of the foregoing.
5. Amendment to Subsidiary Security Agreement. Section 1 of the
Subsidiary Security Agreement is hereby amended by deleting therefrom the
defined term "Secured Obligations" and replacing it in its entirety with the
following:
"Secured Obligations" means (i) the full and prompt
payment of the Reimbursement Obligations, the principal of and premium
(including, without limitation, Take-Out Premium) and interest on the
Loans and the loans evidenced by the New Interim Notes, the May Interim
Notes, the June Interim Notes, the July Interim Notes (including,
without limitation, interest accruing after the date of any filing by
the Borrower or any Grantor of any petition in bankruptcy or the
commencement of any bankruptcy, insolvency or similar proceeding with
respect to the Borrower or any Grantor), as and when the same becomes
due and payable in accordance with the terms of the Loan Agreement, such
New Interim Notes, May Interim Notes, June Interim Notes or July Interim
Notes, as the case may be, (ii) the payment of all other indebtedness
and other amounts payable by the Borrower, or the Grantors under the
Reimbursement Agreement, the Guarantee, the Loan Agreement, the Notes,
the New Interim Notes, the May Interim Notes, the June Interim Notes,
the July Interim 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 Borrower or any Grantor of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency
or similar proceeding with respect to the Borrower or any Grantor),
(iii) the due and punctual performance by the Borrower and the Grantors
of and compliance by such Persons with all their
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respective obligations under the Reimbursement Agreement, the Guarantee,
Loan Agreement, the Notes, the New Interim Notes, the May Interim Notes,
the JuneInterim Notes, the July Interim Notes, this Agreement and all
other Loan Documents, and (iv) any renewals or extensions of any of the
foregoing.
6. Amendment to Pledge Agreement. The Pledge Agreement is hereby
amended by deleting Section 1 therefrom and replacing it in its entirety with
the following:
Section 1. Security for Obligations. This Agreement is
entered into to secure (a) the payment of the Reimbursement Obligations,
the principal of and premium and interest on the Loans and the loans
evidenced by the New Interim Notes, the May Interim Notes, the June
Interim Notes, the July Interim Notes (including, without limitation,
interest accruing after the date of any filing by Pledgor of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency
or similar proceeding with respect to Pledgor) as and when the same
becomes due and payable in accordance with the terms of the Loan
Agreement, the New Interim Notes, the May Interim Notes, the June
Interim Notes or the July Interim Notes, as the case may be, whether at
maturity or by prepayment, acceleration, declaration of default or
otherwise, (b) the payment of all other indebtedness and other amounts
payable by the Pledgor under the Reimbursement Agreement, the Loan
Agreement, the Notes, the New Interim Notes, the May Interim Notes, the
June Interim Notes, the July Interim Notes, this Agreement and the other
Loan Documents, (c) the due and punctual performance by Pledgor of and
compliance by the Pledgor with all its obligations under the
Reimbursement Agreement, the Loan Agreement, the Notes, the New Interim
Notes, the May Interim Notes, the June Interim Notes, the July Interim
Notes, this Agreement and all other Loan Documents, and (d) all
extensions and renewals of any of the foregoing (all of the payment and
performance obligations referred to in this Section 1 being referred to
collectively as the "Secured Obligations").
7. Amendment to Security Agreements. Each of the Borrower
Security Agreement, the Subsidiary Security Agreement and the Pledge Agreement
are hereby amended by inserting in Section 1 thereof the following definitions:
"July Interim Notes" mean the separate secured promissory notes,
dated as of July 16, 1999, between IMC Mortgage Company and each of the
GSCP Funds.
"Loan Documents" means (i) the Loan Agreement, (ii) the Guarantee
Agreement, (iii) the Notes, (iv) the New Interim Notes, (v) the May
Interim Notes, (vi) the June Interim Notes, (vii) the July Interim
Notes, (viii) the Note Purchase and Amendment Agreement, (ix) the Note
Purchase and Amendment Agreement No. 2, (x) the Note Purchase and
Amendment Agreement No. 3, (xi) the Security
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Agreements, (xii) the Pledge Agreement, (xiii) the Registration Rights
Agreement, (xiv) the Intercreditor Agreements and (xv) any other
agreement entered into pursuant to Section 5.9 of the Loan Agreement or
Section 4 hereof, in each case as the same may from time to time be
amended, modified or supplemented, and "Loan Document" means any one of
them.
"Note Purchase and Amendment Agreement No. 3" means the Note
Purchase and Amendment Agreement No. 3, dated as of July 16, 1999, among
IMC Mortgage Company, certain of its subsidiaries, and the GSCP Funds.
8. Amendment to Guarantee Agreement. The Guarantee Agreement is
hereby amended by deleting Recital D therefrom and replacing it in its entirety
with the following:
D. In order to induce Lenders to enter into the Loan
Agreement and the New Interim Notes (as defined in Amendment Agreement
No. 2 hereto), the May Interim Notes (as defined in the Note Purchase
and Amendment Agreement), the June Interim Notes (as defined in the Note
Purchase and Amendment Agreement No. 2) and the July Interim Notes (as
defined in the Note Purchase and Amendment Agreement No. 3) and to
extend to the Company the loans provided for thereunder and to induce
the Lenders to enter into an indemnification agreement with issuers of
certain surety bonds in respect of the Company and its subsidiaries, and
in consideration of the substantial benefits the Guarantors expect to
derive from the use of the proceeds of such loans, each Guarantor is
willing to enter into this Guarantee Agreement, providing for the
guarantee by such Guarantor, jointly and severally with each other
Guarantor, of the Company's obligations under the Reimbursement
Agreement (as defined in Amendment Agreement No. 3 hereto), the Loan
Agreement, the Notes, the New Interim Notes, the May Interim Notes, the
June Interim Notes, the July Interim Notes, the Borrower Security
Agreement, the Pledge Agreement, the Note Purchase and Amendment
Agreement, the Note Purchase and Amendment Agreement No. 2, the Note
Purchase and Amendment Agreement No. 3 and the Registration Rights
Agreement (collectively, the "Principal Documents").
9. Further Amendments. If, upon the occurrence of the Acquisition
(as defined in the Acquisition Agreement), all amounts outstanding under the
July Interim Notes have not been repaid in full, the Lenders may apply all or
any portion of the amounts owing to them under the July Interim Notes in
satisfaction of all or any portion of their obligation under the Commitment
Letter, dated as of March 31, 1999, to make Additional Advances in the aggregate
principal amount of $35,000,000 to the Borrower by giving written notice to the
Borrower to such effect and delivering the July Interim Notes in the amount to
be so applied to the Borrower against receipt from the Borrower of Notes
evidencing the Additional Advances under the Amended and Restated Loan Agreement
and replacement notes
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evidencing any portion of the July Interim Notes remaining outstanding after
giving effect to such application. The parties hereto undertake to amend the
Amended and Restated Loan Agreement attached as Exhibit A to the Commitment
Letter, dated as of March 31, 1999, from the GSCP Funds to the Borrower, as
necessary in order to preserve the rights of the GSCP Funds hereunder and under
the Subject Documents.
10. Acknowledgment of Obligations; Solvency. The Borrower, each
Subsidiary Guarantor and each Subsidiary Grantor acknowledges that its
obligations under the Subject Agreements and the lien on the Collateral securing
its obligations thereunder remain in full force and effect, and that the
Borrower, each Subsidiary Guarantor and each Subsidiary Grantor have no
defenses, counterclaims or offsets to its obligations under the Subject
Agreements and that such liens are valid, perfected and enforceable. The
Borrower, each Subsidiary Guarantor and each Subsidiary Grantors hereby waives
the application of the automatic stay in any bankruptcy proceeding in respect of
its obligations under the Subject Agreements and consents to the modification of
the stay to permit the exercise by the GSCP Funds of their rights in respect of
the Collateral. This document shall not constitute a waiver, amendment or
modification of the Subject Agreements except as expressly set forth herein and
shall not be construed as a waiver or consent to any future action on the part
of the Borrower, any Subsidiary Guarantor and any Subsidiary Grantors that would
require a waiver or consent of the GSCP Funds except to the extent expressly
provided herein. The Borrower, each Subsidiary Guarantor and each Subsidiary
Grantor represents, warrants and confirms that it is not insolvent and after
giving effect to the borrowings contemplated hereby will not be rendered
insolvent, it is not engaged or about to engage in a business or transaction for
which its remaining property is an unreasonably small capital and it does not
intend to incur debts beyond its ability to repay as such debts mature.
11. 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 GSCP Funds. Any such waiver will be effective only in the specific instance
and for the specific purpose for which it is given.
12. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
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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.
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
15.
15. 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, (a) if to the GSCP Funds,
Greenwich Street Capital Partners II, L.P., c/o Greenwich Street Capital
Partners, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx
Xxxxx; Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to Debevoise &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx Xxxxxx,
Tel: (000) 000-0000, Fax: (000) 000-0000; (b) if to the Borrower or any
Subsidiary Guarantor or Subsidiary Grantors, 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. Each such notice, request or other communication
shall be effective when sent by
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facsimile transmission to the facsimile number or when delivered by hand to the
address specified in this Section 15, 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.
16. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
17. Expenses. The Borrower shall pay or reimburse the GSCP Funds
for all costs and expenses (including reasonable attorneys' fees) incurred in
preparing and enforcing this Agreement and perfecting the security interests
granted hereby.
18. Full Force and Effect. Except as expressly provided in this
Agreement, each of the Subject Agreements shall continue in full force and
effect in accordance with the provisions thereof.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first above written.
IMC MORTGAGE COMPANY
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:
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:
GREENWICH STREET CAPITAL PARTNERS II, L.P.,
as Collateral Agent
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/
-------------------------------------
Name:
Title:
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL (I) THIS NOTE
HAS BEEN REGISTERED UNDER THE SECURITIES ACT, OR (II) AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE THEREFOR.
IMC MORTGAGE COMPANY
SECURED PROMISSORY NOTE
$[ ] July __, 1999
FOR VALUE RECEIVED, the undersigned, IMC MORTGAGE COMPANY, 0000
X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Borrower"), a Florida corporation,
hereby promises to pay to GREENWICH STREET CAPITAL PARTNERS II, L.P. (the
"Lender"), c/o GSCP, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
registered assigns, the principal sum of [ ] DOLLARS ($[ ]), payable on demand,
with interest on the unpaid balance thereof at 20% per annum from the date
hereof, payable weekly in arrears.
Payments of principal of and interest on this Note are to be made
at the main office of the holder, or at such other place as the holder shall
designate to the Borrower hereof in writing, in lawful money of the United
States of America.
All repayments of interest or principal shall be recorded by the
registered holder hereof and appropriate notations to evidence the foregoing
information with respect to the principal amount then outstanding shall be
endorsed by such registered holder on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of such registered holder to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder.
3. Prepayment. The Borrower may at any time and from time to
time, upon notice to the registered holder of this Note, without the payment of
any premium or fee, prepay all or any portion of the indebtedness represented by
this Note, with interest accrued to the date fixed for prepayment.
4. Registration, Transfer and Exchange of Notes. a. The Borrower
shall keep at its principal executive office a register for the registration and
registration of transfers of this Note and any Notes issued upon the transfer or
exchange hereof ("Notes"). The name and address of each holder of one or more
Notes, each transfer thereof and the name and address of each transferee of one
or more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Borrower shall not be affected by any notice or knowledge to the
contrary.
b. Upon surrender of any Note at the principal executive office
of the Borrower for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly autho rized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Borrower shall
execute and deliver, at the holders' expense, one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate principal
amount equal to the unpaid principal amount of the surrendered Note. Each such
new Note shall be payable to such Person as such holder may request and shall be
substantially in the form of this Note. Each such new Note shall be dated and
bear interest from the date to which interest shall have been paid on the surren
dered Note or dated the date of the surrendered Note if no interest shall have
been paid thereon.
5. Representations and Warranties of the Borrower. The Borrower
hereby represents and warrants to the registered holders from time to time of
this Note, as follows:
a. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Florida, and has all corporate power required to carry on its business
as now conducted and to execute, deliver and perform its obligations under this
Note.
b. Authority Relative to this Note; No Contravention. The
execution and delivery of this Note and the consummation of the transactions
contemplated hereby and thereby have been duly authorized and approved by all
necessary action on the part of the Borrower. This Note has been duly and
validly executed and delivered by the Borrower and constitutes a valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms. The execution, delivery and performance by the
Borrower of this Note does not violate or conflict with any applicable law,
rule, regulation, order or decree or contravene, or constitute a default under,
any
provision of the Borrower's Certificate of Incorporation or By-Laws or any
mortgage, deed of trust, loan agreement or other instrument or agreement binding
upon the Borrower or its assets and property.
6. Events of Default. If any of the following "Events of Default"
shall occur and be continuing:
a. Any representation and warranty made by the Borrower hereunder
shall prove to have been inaccurate in any material respect;
b. The Borrower shall (i) file, or consent by answer or otherwise
to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, (ii) make an
assignment for the benefit of its creditors, (iii) consent to the appointment of
a custodian, receiver, trustee or other officer with similar powers of itself or
of any substantial part of its property, (iv) be adjudicated insolvent or (v)
take corporate action for the purpose of any of the foregoing;
c. A court or other governmental authority of competent
jurisdiction shall enter an order appointing, without consent by the Borrower, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or an order for
relief shall be entered in any case or proceeding for liquidation or a
reorganization or otherwise to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding up or liquidation
of the Borrower, or any petition for any such relief shall be filed against the
Borrower and such petition shall not be dismissed within 30 days; then, in the
case of any Event of Default the entire unpaid principal amount of and any
accrued interest on the sums evidenced by this Note shall automatically become
due and payable, in either case, without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by the Borrower. No delay
or omission of the holder hereof to exercise any right or remedy hereunder,
whether before or after the happening of any breach or Event of Default, shall
impair any such right or shall operate as a waiver thereof or as a waiver of any
such breach or Event of Default. No single or partial exercise by the holder
hereof of any right or remedy shall preclude any other or further exercise
thereof, or preclude any other right or remedy. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies provided
by law or in equity. The Borrower shall pay, and shall indemnify and hold
harmless the holder of this Note from and against, all costs and expenses of
collection or enforcement hereof incurred by the holder hereof, including
reasonable attorneys' fees and disbursements.
7. Security, Guarantee. This Note is entitled to the benefits of
the Borrower Security Agreement, the Subsidiary Security Agreement, the
Guarantee
3
Agreement and the Pledge Agreement, each dated as of October 12, 1998, each
among the Borrower, the subsidiaries of the Borrower party thereto, the Lender
and the affiliates of Lender party thereto, as each such agreement is amended by
the Amendment Agreement No. 1 thereto, dated as of February 11, 1999, the
Amendment Agreement No. 2 thereto, dated as of April 19, 1999, the Note Purchase
and Amendment Agreement, dated as of May 18, 1999, the Note Purchase and
Amendment Agreement No. 2, dated as of June 18, 1999, and the Note Purchase and
Amendment Agreement No. 3, dated as of July 16, 1999, which contain provisions
for the securing and guaranteeing of this Note and the Loan evidenced hereby
upon the terms and conditions specified therein.
8. Governing Law. This Note shall be governed by and construed
and enforced in accordance with the law of the State of New York.
IMC MORTGAGE COMPANY
By:____________________________
Name:
Title:
4
ENDORSEMENT
This Note is entitled to the benefit of the Guarantee of the
undersigned pursuant to the Guarantee Agreement.
IMC CORPORATION OF AMERICA
IMC CREDIT CARD, INC.
IMC MORTGAGE COMPANY, CANADA
LTD.
AMERICAN HOME EQUITY
CORPORATION
IMC INVESTMENT CORPORATION
IMC INVESTMENT LIMITED
PARTNERSHIP
IMCC INTERNATIONAL, INC.
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.
NATIONAL LENDING GROUP, INC.
RESIDENTIAL MORTGAGE
CORPORATION (IMC), INC.
By:__________________________________
Name:
Title:
5
ADVANCES AND PAYMENTS
---------------------
Amount of Amount of Unpaid Notation
Date Amount of Advance Principal Paid Interest Paid Principal Balance Made by
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