INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of October 12, 1998, between IMC
MORTGAGE COMPANY, a Florida corporation (the "Company"), GREENWICH STREET
CAPITAL PARTNERS II, L.P., a Delaware limited partnership, GREENWICH FUND, L.P.,
a Delaware limited partnership, GSCP OFFSHORE FUND, L.P., a Cayman Islands
exempted limited partnership (each a "Facility Lender" and collectively, the
"Facility Lenders"), and GERMAN AMERICAN CAPITAL CORPORATION ("GAC") and ASPEN
FUNDING CORP. ("Aspen", and collectively with GAC, the "Existing Lenders").
Capitalized terms used in this Agreement without definition have the meanings
given to them in the Loan Agreement (as hereinafter defined) as such terms are
defined in the Loan Agreement on the date hereof.
RECITALS
A. The Company intends to enter into a Loan Agreement, dated as of
October 12, 1998 (as the same may be modified, supplemented or restated from
time to time, the "Loan Agreement"), between the Company, as borrower, and the
Facility Lenders, pursuant to which the Facility Lenders will agree to extend to
the Company Commitments to loan, in the aggregate, $33,000,000 (the "Loans"),
subject to the terms and conditions set forth in the Loan Agreement, which Loans
are evidenced by the Notes and entitled to the benefit of certain guarantees and
security provided under certain of the other Loan Documents.
B. Pursuant to (i) the Loan and Security Agreement, dated March 17,
1998, as amended from time to time, by and among the Company, IMC Corporation of
America, ACG Financial Services (IMC), Inc., American Mortgage Reduction, Inc.,
Central Money Mortgage Co. (IMC), Inc., Corewest Banc, Equity Mortgage Co.,
(IMC), Inc., Mortgage America (IMC), Inc., National Lending Center, Inc.,
National Lending Center TILT, Inc, and Residential Mortgage Corporation (IMC),
Inc., as borrowers, and GAC, as lender (the "GAC Agreement", and (ii) the Loan
and Security Agreement, dated March 17, 1998, as amended from time to time, by
and among the Company, IMC Corporation of America, ACG Financial Services (IMC),
Inc., American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and Aspen Funding
Corp., as lender, (the "Aspen Loan Agreement", and collectively with the "GAC
Agreement", the "Existing Loan Agreements"), and other related agreements in
favor of the Existing Lenders (collectively with the Existing Loan Agreements,
the "Existing Loan Documents"), the Existing Lenders have agreed to
provide financing to the Company from time to time, to enable the Company to
finance certain mortgage loans and for other purposes provided therein; and the
Company and certain of its Subsidiaries have granted a security interest in the
Collateral (as hereinafter defined) in order to secure their respective
obligations under the Existing Loan Documents (the "Existing Obligations").
C. In order to induce the Facility Lenders to enter into the Loan
Agreement, the Facility Lenders, the Company, and the Existing Lenders have
agreed to enter into this Agreement (the "Intercreditor Agreement"), whereby the
Existing Lenders will agree, subject to the terms and conditions of this
Agreement, (i) to refrain from exercising certain rights and remedies they have
under the Existing Loan Agreements for a period of 45 days and, in certain
events, 90 days, (ii) to acknowledge and consent to the creation of a junior
lien on the Collateral, and (iii) to agree that following payment in full of the
obligations under the Existing Loan Agreements, the Existing Lenders will hold
the Collateral for the benefit of the Facility Lenders.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Existing Lenders
and the Facility Lenders agree as follows:
Section 1. Standstill. (a) Each of the Facility Lenders and the
Existing Lender agrees, subject to the terms of this Agreement, that for the
Standstill Period, it shall not:
(i) file or join in the filing of any involuntary petition in
bankruptcy with respect to the Company or its Subsidiaries, or initiate
or participate in any similar proceedings for the benefit of creditors,
including any proceeding for the appointment of a trustee, receiver,
conservator or liquidator of the Company or its Subsidiaries or any
portion of its assets;
(ii) seek to collect or enforce by litigation or otherwise, any
payment obligations under the Existing Loan Documents or the Loan
Documents; provided that nothing in this Section 1 shall prohibit the
Facility Lenders from exercising their Exchange Option;
(iii) make any Margin Calls or other demands for payment in
respect of, or additional collateral to secure the Existing Obligations;
provided, however, that this clause shall not adversely affect the right
of the Existing Lenders to take any actions to preserve, protect or
perfect their liens in the Collateral;
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(iv) declare a default or event of default under, or exercise or
enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Loan Document or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any of
the Collateral.
(b) The Standstill Period may be terminated by the Existing Lenders or
the Facility Lenders by written notice to the Company and each other Creditor
upon the occurrence of any of the following:
(i) a failure by the Company under the Existing Loan
Agreement to make to the Existing Lenders any scheduled payment of
interest, which failure continues unremedied for two days, or any
payment of principal due in respect of payoffs or prepayments of
mortgage loans comprising any portion of the Collateral;
(ii) any intentional fraud or misrepresentation by the
Company;
(iii) immediately upon a failure of the Facility Lenders
to make an Advance (as defined in the Loan Agreement) under the Loan
Agreement following a request of the Company thereunder;
(iv) immediately in the event any Other Existing Lender
takes any of the actions described in Section 1(a) of its Other
Intercreditor Agreement, whether or not it shall have given notice of
termination of the Standstill Period.
(v) the Company shall not have entered into the Loan
Agreement in substantially similar form to the October 13, 1998 draft
thereof at or before 12:00 noon, New York City time, on October 14,
1998;
(vi) the conditions to the obligations of the Facility
Lenders to fund the Initial Advance shall not have been satisfied or
waived by the Facility Lenders and the Facility Lenders, if requested by
the Company to fund the Initial Advance, shall not have funded the
Initial Advance at or before 12:00 noon, New York City time, on October
14, 1998;
(vii) the Company shall not have delivered (by facsimile
transmission or otherwise in accordance with Section 16 hereof) to each
Creditor a forbearance agreement of BankBoston at or before 12:00 noon,
New York City
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time, on October 14, 1998, which is satisfactory in substance and form
to each Creditor;
(viii) the condition contained in clause (y) of the
definition of "Standstill Period" to the extension of the Standstill
Period beyond the date which is 45 days from and after the date hereof
shall not have been satisfied on or before such date;
(ix) a Change of Control or payment of the Take-Out
Premium; or
(x) an event shall occur and be continuing for a period of
ten Business Days which permits any holder of indebtedness for borrowed
money of the Company or any Subsidiary outstanding (other than any
Creditor) to accelerate the maturity of such indebtedness or exercise
remedies with respect to property of the Company or any Subsidiary,
without such indebtedness being paid or the rights of such holder to
take such action being waived, stayed or subjected to a standstill or
other agreement of such holder to forbear from exercising remedies,
reasonably satisfactory to the Creditors.
(c) The Standstill Period shall terminate automatically without notice
or other action by any Creditor upon the occurrence of any of the following:
(i) the Company or any Subsidiary shall consent to the
appoint ment of or taking possession by a receiver, assignee, custodian,
sequestrator, trustee or liquidator (or other similar official) of
itself or of a substantial part of its property; or the Company or any
Subsidiary shall admit in writing (to any creditor, governmental
authority or judicial court or tribunal) its inability to pay its debts
generally as they come due or shall fail generally to pay its debts as
they become due, or shall make a general assignment for the benefit of
its creditors; or the Company or any Subsidiary shall file a voluntary
petition in bankruptcy or a voluntary petition or answer seeking
liquidation, reorganization or other relief with respect to itself or
its debts under the Federal bankruptcy laws, as now or hereafter
constituted or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or shall consent to the entry of an
order for relief in an involuntary case under any such law; or the
Company or any Subsidiary shall file an answer admitting the material
allegations of a petition filed against the Company in any such
proceeding, or otherwise seek relief under the provisions of any
existing or future Federal or State bankruptcy, insolvency or other
similar law providing for the reorganization or winding-up of
corporations, or providing for an arrangement, agreement, composition,
extension or adjustment
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with its creditors; or the Company or any Subsidiary shall take or
publicly announce its intention to take corporate action in furtherance
of any of the fore going; or
(ii) an order, judgment or decree shall be entered in any
proceeding by any court of competent jurisdiction appointing, without
the consent of the Company, a receiver, trustee or liquidator of the
Company or any Subsidiary or of any substantial part of its property, or
any substantial part of the property of the Company or any Subsidiary
shall be sequestered, and any such order, judgment or decree of
appointment or sequestration shall remain in force undismissed, unstayed
or unvacated for a period of 30 days after the date of entry thereof; or
(iii) an involuntary petition against the Company or any
Subsidiary in a proceeding under the Federal bankruptcy laws or other
insolvency laws, as now or hereafter in effect, shall be filed and shall
not be withdrawn or dismissed within 30 days thereafter, or a decree or
order for relief in respect of the Company or any Subsidiary shall be
entered by a court of competent jurisdiction in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or,
under the provisions of any law providing for reorganization or
winding-up of corporations which may apply to the Company, any court of
com petent jurisdiction shall assume jurisdiction, custody or control of
the Company or any Subsidiary or of any substantial part of its property
and such jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of 30 days.
Section 2. Grant of Security Interest. (a) In order to secure full and
timely payment of the Obligations under the Loan Agreement, and to secure the
performance of all of the other obligations of the Company under the Loan
Documents, the Company and each Subsidiary hereby mortgages, pledges and assigns
and transfers to the Facility Lenders, and grants to the Facility Lenders, a
continuing perfected security interest in, and a lien in the Collateral. The
Facility Lenders agree to release their lien in respect of any whole loan
mortgage, which is sold by the Company to either Existing Lender for a purchase
price not less than the advance rate in respect of such mortgage.
(b) The Facility Lenders agree for the benefit of the Existing Lenders
that during the continuance of the Standstill Period and thereafter until the
earlier of (i) the satisfaction of the Existing Obligations in full, (ii) the
exercise by the Existing Lenders of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill
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Period, the Facility Lenders will not seek to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, provided that
nothing herein shall restrict the Facility Lenders from commencing suit on its
Notes or for payment of its Loan or enforcement of any other obligation owing to
it under the Loan Documents.
Section 3. Acknowledgment and Priorities. Each Existing Lender hereby
acknowledges and consents to the entrance by the Company into the Loan Documents
and the granting of the lien in the Collateral granted pursuant to Section 2;
provided, however, notwithstanding anything to the contrary contained in the
Loan Agreement, the Notes or any of the Loan Documents, any security interest in
or other rights with respect to any Collateral granted to secure the Existing
Obligations under the Existing Loan Agreements or otherwise has and shall have
priority, to the extent of the Existing Obligations, over any security interest
in such Collateral granted pursuant to the Loan Agreement or the other Loan
Documents irrespective of:
(i) the time, order or method of attachment or perfection of the
security interest created by this Agreement, any Loan Agreement or any
Loan Document;
(ii) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in any Collateral;
(iii) anything contained in any filing or agreement to which the
Facility Lenders, the Company, the Collateral Agent under the Security
Documents now or hereafter may be a party, and
(iv) the rules for determining priority under the U.C.C. or other
laws governing the relative priorities of secured creditors.
(b) Each Existing Lender hereby agrees that, following payment in full
of all the Existing Obligations hereunder, any Collateral, including any books
and records (including, without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, held by it shall be held for the
benefit of the Facility Lenders, provided that if such Collateral is then
subject to the prior lien of another creditor, the Existing Lender may hold it
for the benefit of such other creditor and the Facility Lenders as their
interests may appear. If the Existing Lender has elected not to hold such
Collateral following payment in full of the Existing Obligations, it shall
promptly forward any Collateral, including any books and records (including,
without limitation, computer files, printouts and other computer materials and
records) relating to the Collateral, as well as all proceeds and products of
such Collateral, to the Collateral Agent.
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Section 4. Reserved Rights. Notwithstanding anything in this Agreement
to the contrary, the Company and the Facility Lenders agree that this Agreement
shall in no manner impair any right of the Existing Lenders under the Existing
Loan Agreements to enforce any condition precedent to any obligation it may have
thereunder to make future Advances to the Company and its Subsidiaries, nor
shall this Agreement limit the right of the Existing Lenders to make Margin
Calls in respect of the hedging transactions with respect to U.S. treasury
securities that the Company may have entered into with either Existing Lender
outside of the Existing Loan Documents. All rights and obligations of the
Existing Lenders under the Existing Loan Documents to make Advances or not make
Advances shall not be affected by this Agreement.
Section 5. Fee. Upon consummation of a Change in Control, the Company
shall pay the Existing Lenders a fee of $1,000,000 in the aggregate payable in
immediately available funds to such account at such bank as the Existing Lenders
may direct.
Section 6. Conditions Precedent. The obligations of the parties hereto
under this Agreement to carry out their obligations hereunder shall be subject
to the condition that each of the other existing Lenders listed on Schedule I
(the "Other Existing Lenders") shall have entered into intercreditor agreements
substantially the same as this Agreement (the "Other Intercreditor Agreements"),
and if any Other Existing Lender shall have entered into an intercreditor
agreement which by its terms is, in the reasonable judgment of the Existing
Lenders, more favorable to such Other Existing Lender, it shall be a condition
to the performance of the Existing Lenders hereunder that the Company and the
Facility Lenders amend this Agreement to provide the Existing Lender with the
benefit of such more favorable terms (other than any fee payable pursuant to
Section 5 hereof or of any Other Intercreditor Agreement or any other economic
consideration payable to any Other Existing Lender under any other agreement).
Section 7. Certain Definitions.
"Additional Collateral" means cash or additional collateral reasonably
acceptable to the Existing Lenders transferred to either Existing Lender
pursuant to the applicable Existing Loan Agreement.
"Advance" means advances made by either Existing Lender to the Company
or any Borrower, pursuant to the terms and conditions of the applicable Existing
Loan Agreement.
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"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" (together with the
correlative meanings of "controlled by" and "under common control with") means
possession, directly or indirectly, of the power (a) to vote 20% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
directors or managing general partners (or their equivalent) of such Person, or
(b) to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Assets" means the collective reference to Mortgage Loans, Lender
Mortgage and Pledged Securities.
"Borrowers" means any of IMC Mortgage Company, IMC Corporation of
America, ACG Financial Services (IMC), Inc., American Mortgage Reduction, Inc.,
Central Money Mortgage Co. (IMC), Inc., CoreWest Banc, Equity Mortgage Co.
(IMC), Inc., American Home Equity Corporation, Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc., National
Lending Group, Inc. and any additional Persons that may become Borrowers under
either Existing Loan Agreement.
"Cash Collateral Account" means a cash collateral account established
and maintained by the Existing Lenders pursuant to the terms and conditions of
the Existing Loan Agreements.
"Change of Control" means the occurrence of any of the following events
(other than as a consequence of the issuance of the Preferred Stock to the
Facility Lenders upon exercise of the Exchange Option):
(i) any "Person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to
acquire within one year), directly or indirectly, of more than
50% of the Voting Stock of the Company; or
(ii) the Company consummates any sale, lease, exchange or
other disposition of all or substantially all of the assets of
the Company and its Subsidiaries, taken as a whole, in any
transaction or series of transactions not in the ordinary course
of business; or
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(iii) the Company engages in a merger, consolidation or
similar business combination with any third party.
"Collateral" means all of the Company's or any Borrower's right, title
and interest in, to and under each of the following items of property, whether
now owned or hereafter acquired, now existing or hereafter created and wherever
located:
all Assets;
all Collateral Documents, including without limitation all promissory
notes relating to or evidencing the Assets, and all Servicing Records, servicing
agreements and any other collateral pledged or otherwise relating to such
Collateral, together with all files, documents, instruments, surveys,
certificates, correspondence, appraisals, computer programs, computer storage
media, accounting records and other books and records relating thereto;
all securities, monies or property representing dividends or interest on
any of the foregoing, or representing a distribution in respect of the
foregoing, or resulting from a split-up, revision, reclassification or other
like change of the foregoing or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or otherwise
in respect of, the foregoing;
all Pooling and Servicing Agreements;
all Collection Accounts and amounts on deposit therein;
all Cash Collateral Accounts and amounts on deposit therein;
all guaranties and insurance (issued by governmental agencies or
otherwise including without limitation, FHA Mortgage Insurance) and any
insurance certificate or other document evidencing such guaranties or insurance
relating to any item of Collateral and all claims and payments thereunder;
all other insurance policies and insurance proceeds relating to any item
of Collateral;
all Interest Rate Protection Agreements;
all Additional Collateral provided to the Existing Lenders;
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all of the Company's or any Borrower's rights, but not their
obligations, under any purchase agreements and servicing agreements and all
servicing rights covering or relating to any item of the Collateral to which the
Company or any of the Borrowers are a party;
all "general intangibles" as defined in the Uniform Commercial Code
relating to or constituting any and all of the items listed in the foregoing
items;
any other right, interest or property of the Company or any Subsidiary
now or hereafter securing the performance by the Company or any Subsidiary of
the Existing Obligations; and
any and all replacements, substitutions, distributions on or proceeds of
any and all of the foregoing.
"Collateral Documents" means, with respect to the items of Collateral,
the documents comprising the Collateral File for such Collateral.
"Collateral File" means, with respect to each Mortgage Loan, those
documents that are delivered to the Custodian or which at any time come into the
possession of the Custodian, pursuant to the terms and conditions of either
Custodial Agreement.
"Collection Account" means a collection account established and
maintained by the Existing Lenders pursuant to the terms and conditions of the
Existing Loan Agreements.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Creditor" means any of the Facility Lenders, the Existing Lenders or
any Other Existing Lender.
"Custodial Agreements" means separate Custodial Agreements by among the
Company, certain of its Subsidiaries, Custodian and each Existing Lender, as the
same shall be modified and supplemented and in effect from time to time.
"Custodian" means BankBoston, N.A., as custodian under the Custodial
Agreements, and its successors and permitted assigns thereunder.
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"FHA" means the Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
"FHA Loan" means a Mortgage Loan which is the subject of FHA Mortgage
Insurance.
"FHA Mortgage Insurance" means mortgage insurance authorized under the
National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Regulations" means regulations promulgated by HUD under the
National Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"HUD" means the Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance, including subdivisions
thereof such as the FHA.
"Interest Rate Protection Agreement" means, with respect to any or all
of the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
similar arrangements providing for protection against fluctuations in interest
rates or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Lender Mortgage" means, with respect to any REO Property owned or to
be owned by the Borrowers a duly executed and recorded mortgage, deed of trust
or similar instrument in favor of either Existing Lender on such REO Property,
which Lender Mortgage shall (A) name either Existing Lender as the mortgagee
thereon or the beneficiary thereof and (B) be on a FNMA uniform instrument (or
another form acceptable to the Existing Lenders).
"Letter of Intent" means a non-binding letter of intent between the
Company and one or more creditworthy Persons having the financial and other
capacity to consummate the transaction contemplated thereby, providing for (i) a
merger,
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consolidation, share exchange, business combination or other similar transaction
involving the Company in which the outstanding Common Stock is converted into
the right to receive cash or securities of a Qualifying Issuer; (ii) a sale,
conveyance, lease, exchange, transfer or other disposition of all or
substantially all the assets of the Borrower and its Subsidiaries, taken as a
whole, in a single transaction or in a series of transactions outside of the
ordinary course of business in return for cash or securities of a Qualifying
Issuer; or (iii) a tender offer or exchange offer for any and all of the
outstanding shares of Common Stock in return for cash or securities of a
Qualifying Issuer, in each case which, upon consummation of the transactions
contemplated thereby, would result in a Change of Control and which letter of
intent contemplates the repayment of all of the Existing Obligations in full.
"Lien" means, as defined in the Uniform Commercial Code in effect in
any jurisdiction, with respect to the mortgages, liens, pledges, charges,
security interests or similar encumbrances created pursuant to the applicable
Existing Loan Agreement.
"Margin Call" means the right of the Existing Lenders to give notice to
require the Company or any Subsidiary to transfer to the Existing Lenders cash
or additional collateral.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on the fee in real property
securing the Mortgage Note.
"Mortgage Loan" means a mortgage loan which the Custodian has been
instructed to hold for the applicable Existing Lender pursuant to a Custodial
Agreement, and which Mortgage Loan includes, without limitation, (i) a Mortgage
Note and related Mortgage and (ii) all of the Company's or any Borrowers' right,
title and interest in and to the Mortgaged Property covered by such Mortgage.
"Mortgage Note" means the original executed promissory note or other
evidence of the indebtedness of a mortgagor/borrower with respect to a Mortgage
Loan.
"Mortgaged Property" means the real property (including all
improvements, buildings, fixtures, building equipment and personal property
thereon and all additions, alterations and replacements made at any time with
respect to the foregoing) and all other collateral securing repayment of the
debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor on a Mortgage Note.
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"Person" means any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"Pledged Securities" means the Subordinated Securities pledged to an
Existing Lender from time to time and held by such Existing Lender as Collateral
under the applicable Existing Loan Agreement.
"Pooling and Servicing Agreement" means any pooling and servicing
agreement, sale and servicing agreement, trust agreement or other agreement
pursuant to which the Mortgage Loans ultimately underlying any of the Pledged
Securities are serviced or administered or the Pledged Securities are issued or
exchanged.
"Qualifying Issuer" means an issuer the outstanding common stock or
other common equity securities of which is listed on the New York Stock Exchange
or NASDAQ National Market System.
"REO Property" means a fee in real property acquired by the Borrowers
pursuant to or in connection with a purchase agreement, including a Mortgaged
Property acquired through foreclosure of a Mortgage Loan or by deed in lieu of
such foreclosure.
"Securitization Transaction" means all underwritings or private
placements of (1) securities issued by or sponsored by and (2) backed by
Mortgage Loans or substantially similar assets acquired by or owned by Borrowers
or the Company (or any of their respective Affiliates), including without
limiting the generality of the foregoing, any of either entity's securitization
and other collateralized term financing transactions that involve Mortgage Loans
or substantially similar assets.
"Servicing Records" means any and all servicing agreements, files,
documents, records, data bases, computer tapes, copies of computer tapes, proof
of insurance coverage, insurance policies, appraisals, other closing
documentation, payment history records, and any other records relating to or
evidencing the servicing of Collateral.
"Standstill Period" means a period ending on the first to occur of (i)
the later of (x) 45 days from and after the date hereof and (y) if the Company
shall have, on or before the 45th day from and after the date hereof, entered
into a Letter of Intent and delivered (by facsimile transmission or otherwise in
accordance with Section 16 hereof) to each Creditor a complete and correct copy
thereof, together with an Updated Business
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Plan showing the projected working capital requirements of the Company for the
period ending on the expected date of closing of the transaction contemplated by
the Letter of Intent and commitments from creditworthy parties which, in the
aggregate, are sufficient to satisfy the Company's projected working capital
requirements during such period, 90 days from and after the date hereof, or (ii)
termination of the Standstill Period in accordance with Section 1(b) or (c)
hereof.
"Subordinated Securities" means interest-only strips, residual
interests, subordinated interests or reserve certificates issued and transferred
to the Debtor or Borrowers in connection with any Securitization Transaction or
any other collateral as the Secured Party may deem appropriate.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York.
Section 8. Notice of Advances under the Loan Agreement, etc. (a) The
Company shall give prior written notice to the Existing Lenders of each request
for an Additional Advance under Section 2.10 of the Loan Agreement
contemporaneously with making such request to the Facility Lenders. The Company
shall give written notice to the Existing Lenders immediately upon either the
funding of an Additional Advance (together with such evidence thereof as the
Existing Lenders may reasonably request) or the refusal of Facility Lender to
fund such Additional Advance, as the case may be.
(b) The Company shall give each Creditor prompt written notice of any
event which upon notice or lapse of time or both would constitute an event of
default in respect of any of its outstanding Debt.
(c) Notwithstanding the provisions of the Existing Loan Agreement,
during the Standstill Period, the Company shall pay interest on the principal
amount outstanding under the Existing Loan Agreement to the Existing Lenders
weekly on Friday of each week or, if Friday is not a Business Day, on the next
Business Day.
Section 9. Acknowledgment of Obligations. The Company acknowledges that
its obligations under the Existing Loan Documents and the lien on the Collateral
securing the Existing Obligations remain in full force and effect, and that the
Company has no defenses, counterclaims or offsets to its obligations under the
Existing Loan Documents and that such liens are valid, perfected and
enforceable. The Company hereby waives the application of the automatic stay in
any bankruptcy proceeding in respect of the Existing Obligations and the
obligations under the Loan Documents and the Company and each Creditor consents
to the modification of the stay to permit the
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exercise by the Existing Lenders or the Facility Lenders of their rights in
respect of the Collateral, provided that the foregoing shall not be construed to
modify the provisions of Sections 2(b) and 3 hereof. This document shall not
constitute a waiver, amendment or modification of the Existing Loan Documents,
the Existing Obligations or the Loan Documents except as expressly referred to
herein and shall not be construed as a waiver or consent to any future action on
the part of the Company that would require a waiver or consent of the Existing
Lenders or the Facility Lenders, respectively, except to the extent expressly
provided herein.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agreement shall be effective and binding unless in writing and signed by
the Existing Lenders, the Other Existing Lenders and the Facility Lenders. Any
such waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
Section 11. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
Section 13. GOVERNING LAW; VENUE AND JURISDICTION. THE VALIDITY OF THIS
AGREEMENT, THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT HEREOF AND THE
RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE 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 LITI
GATED 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
15
REQUIRED TO BE BROUGHT IN ANOTHER COURT TO OBTAIN SUBJECT MATTER JURISDICTION
OVER THE MATTER IN CONTROVERSY. EACH OF THE PARTIES WAIVES, TO THE FULLEST
EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE THE DOCTRINE OF FORUM NON CONVENIENS OR TO
OBJECT TO VENUE IN ANY PROCEEDING BROUGHT IN ACCORDANCE WITH THE IMMEDIATELY
PRECEDING SENTENCE. SERVICE OF PROCESS, SUFFICIENT FOR PERSONAL JURISDICTION IN
ANY ACTION AGAINST SUCH PARTY MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO ITS ADDRESS INDICATED IN SECTION 16.
Section 14. Expenses. In addition to the foregoing, the Company will
also reimburse the Existing Lenders and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective obligations and duties hereunder and, to the extent the
Existing Loan Documents so provide, under the Existing Loan Documents, and for
any reasonable fees and expenses of legal or other professional advisors to the
Existing Lenders and the Facility Lenders engaged in connection with the
preparation and negotiation of this Agreement.
Section 15. Agreement May Constitute Financing Statement. The Company
and the Existing Lenders consent to the filing of this Agreement or a photocopy
thereof as a financing statement under the UCC as in effect in any jurisdiction
in which the Facility Lenders may determine such filing to be necessary or
desirable.
Section 16. Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be given to such party by
facsimile transmission or by hand delivery at the following address or facsimile
number, or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other party and each other Creditor,
(a) if to the Lender, Greenwich Street Capital Partners II, L.P., c/o Greenwich
Street Capital Partners, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxxxxx Xxxxx; Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxx Xxxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000; (b) if to the Company,
IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,Xxxx.:
President, Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to Xxxxxxxx X.
Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000.; and (c) and if to the
Existing Lenders: (i) in the case of Aspen, to: Aspen Funding Corp. c/o Amacar
Group, 0000X Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn.: Xxxxxxx
Xxxxxxx,
16
tel.: (000) 000-0000, fax: (000) 000-0000, with a copy to: Deutsche Bank A.G.,
as agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxx Xxxxxxx,
Tel.: (000) 000-0000, Fax: (000) 000-0000 and Xxxxxxx Xxxxx, Tel.: (212)
000-0000, Fax: (000) 000-0000; (ii) in the case of GAC, to: German American
Capital Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx
Xxxxxxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, with a copy to: Deutsche
Bank A.G., as agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxx
Xxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, and Xxxxxxx Xxxxx, Tel.:
(000) 000-0000, Fax: (000) 000-0000; and in either case described in clause (i)
or (ii) above; with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxx, Esq., Tel: (000) 000-0000, Fax:
(000) 000-0000; and if to any of the Other Existing Lenders, to such person and
at the address and facsimile number provided in the corresponding section of the
Other Intercreditor Agreement for notice to such Other Existing Lender. Each
such notice, request or other communication shall be effective when sent by
facsimile transmission to the facsimile number or when delivered by hand to the
address specified in this Section 16 or such section of such Other Intercreditor
Agreement, provided that a facsimile transmission shall be deemed to have been
sent only so long as the transmitting machine has provided an electronic
confirmation of such transmission.
Section 17. Binding Effect; Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns and to each of the other Creditors, each of
which is an intended third-party beneficiary hereof. Neither the Facility
Lenders nor the Existing Lenders may sell, assign, participate or otherwise
transfer or dispose of all or any portion of the Loan or the Existing
Obligations to any Person unless such Person shall have assumed and agreed to be
bound by the terms hereof by written instrument in form reasonably satisfactory
to the Company and each other Creditor.
Section 18. Counterparts; Section Headings. This Agreement may be
executed in any number of counterparts, each of which is an original, but all of
which 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.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
IMC MORTGAGE COMPANY
By /s/
----------------------------
Name:
Title:
GERMAN AMERICAN CAPITAL
CORPORATION
By /s/
----------------------------
Name:
Title:
By /s/
----------------------------
Name:
Title:
ASPEN FUNDING CORP.
By /s/
----------------------------
Name:
Title:
00
XXXXXXXXX XXXXXX CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By /s/
--------------------------
Name:
Title: Managing Member
19
This Intercreditor Agreement is
hereby acknowledged and agreed to by:
IMC CORPORATION OF AMERICA
By /s/
----------------------
Name:
Title:
IMC CREDIT CARD, INC.
By /s/
----------------------
Name:
Title:
IMC MORTGAGE COMPANY CANADA, LTD.
By /s/
----------------------
Name:
Title:
IMC SECURITIES INC.
By /s/
----------------------
Name:
Title:
20
AMERICAN HOME EQUITY CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT LIMITED PARTNERSHIP
By /s/
----------------------
Name:
Title:
ACG FINANCIAL SERVICES (IMC), INC.
By /s/
----------------------
Name:
Title:
AMERICAN MORTGAGE REDUCTION, INC.
By /s/
----------------------
Name:
Title:
21
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
COREWEST BANC
By /s/
----------------------
Name:
Title:
EQUITY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
IMCC INTERNATIONAL, INC.
By /s/
----------------------
Name:
Title:
MORTGAGE AMERICA (IMC), INC.
By /s/
----------------------
Name:
Title:
22
NATIONAL LENDING CENTER, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING CENTER TILT, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING GROUP, INC.
By /s/
----------------------
Name:
Title:
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By /s/
----------------------
Name:
Title:
23
Schedule I
to the
Intercreditor Agreement
Other Existing Lenders
Master Repurchase Agreement, dated as of March 29, 1996, as amended from time to
time, by and among Bear Xxxxxxx Home Equity Trust and the Company and certain of
the Company's Subsidiaries.
Master Repurchase Agreement, dated as of May 1, 1997 between Bear, Xxxxxxx
International Limited and Industry Mortgage Company, L.P.
Institutional Account Agreement, dated October 23, 1996, between and among
Industry Mortgage Company, L.P. and Bear Xxxxxxx.
Loan and Security Agreement, dated as of February 28, 1997, between IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Industry Mortgage Company, L.P., Corewest
Banc, IMC Investment Corp., and IMC Investment Limited Partnership, as
borrowers, and Xxxxx Xxxxxx Real Estate Securities, Inc., as lender.
