NOTE PURCHASE AND AMENDMENT AGREEMENT
-------------------------------------
Note Purchase and Amendment Agreement (this "Agreement"), dated
as of May 18, 1999, amending each of (i) the Borrower Security Agreement (the
"Borrower Security Agreement"), dated as of October 12, 1998, among IMC MORTGAGE
COMPANY, a Delaware corporation (the "Borrower"), and GREENWICH STREET CAPITAL
PARTNERS II, L.P., a Delaware limited partnership ("GSCP"), GREENWICH FUND,
L.P., a Delaware limited partnership, and GSCP OFFSHORE FUND, L.P., a Cayman
Islands exempted limited partnership, (each, a "Lender", and collectively, the
"Lenders"), and GSCP, as Collateral Agent (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") and
Amendment No. 2, dated as of April 19, 1999 ("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 1 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. The GSCP Funds have also made certain additional loans to the
Borrower, which, pursuant to Amendment Agreement No. 2, are entitled to the
benefit of the guarantees and security provided under the Subject Documents.
F. At the Borrower's request, the GSCP Funds have agreed to
provide on the date hereof additional loans to the Borrower in the aggregate
amount of $33,000,000 (the "May Interim Loans"), which May Interim Loans are to
be evidenced by secured promissory notes of the Borrower in the form attached
hereto as Exhibit A (the "May Interim Notes") and are to be entitled to the
benefit of the guarantees and security provided under the Subject Documents.
The Borrower, the Subsidiary Guarantors, the Subsidiary Grantors,
the Collateral Agent, and the GSCP Funds hereby agree as follows:
1. Commitment Fee. In connection with the May Interim Loans, the
Borrower shall pay to the GSCP Funds on the date of such borrowing a commitment
fee of $3,000,000 and hereby directs the GSCP Funds to apply that portion of the
borrowings to payment of the fee. In the event that the total borrowings
outstanding at the end of the day on May 21, 1999 (other than borrowings applied
to pay the commitment fee) are less than $30,000,000, the GSCP Funds shall
rebate to the Borrower (by applying such amount to reduce the principal
outstanding under the May Interim Notes) that portion of the commitment fee so
paid that exceeds an amount equal to 10% of such total outstanding borrowings.
2. 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 principal of and premium (including, without limitation,
Take-Out Premium) and interest on the Loans and the loans evidenced by
the New Interim Notes and the May Interim Notes (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 or such New Interim Notes or May
Interim Notes, as the case
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may be, (ii) the payment of all other indebtedness and other amounts
payable by the Company under the Loan Agreement, the Notes, the New
Interim Notes, the May 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 Loan Agreement, the Notes, the New Interim Notes,
the May Interim Notes, this Agreement and all other Loan Documents, and
(iv) any renewals or extensions of any of the foregoing.
3. 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 principal of and premium (including, without limitation,
Take-Out Premium) and interest on the Loans and the loans evidenced by
the New Interim Notes and the May 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 or
such New Interim Notes or May 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 Guarantee, the Loan Agreement, the
Notes, the New Interim Notes, the May 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 respective obligations under the Guarantee, Loan
Agreement, the Notes, the New Interim Notes, the May Interim Notes, this
Agreement and all other Loan Documents, and (iv) any renewals or
extensions of any of the foregoing.
4. Amendment to Pledge Agreement. The Pledge Agreement is hereby
amended by deleting Section 1 therefrom and replacing it in its entirety with
the following:
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Section 1. Security for Obligations. This Agreement is
entered into to secure (a) the payment of the principal of and premium
and interest on the Loans and the loans evidenced by the New Interim
Notes and the May 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 or the New
Interim Notes or May 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 Loan Agreement, the Notes, the New
Interim Notes, the May 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 Loan
Agreement, the Notes, the New Interim Notes, the May 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").
5. 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:
"May Interim Notes" mean the separate secured promissory notes,
dated as of May 18, 1999, between IMC Mortgage Company and each of the
GSCP Funds.
"GSCP Funds" means each of Greenwich Street Capital Partners II,
L.P., Greenwich Fund, L.P., GSCP Offshore Fund, L.P., Greenwich Street
Employees Fund, L.P. and TRV Executive Fund, L.P.
"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 Note Purchase and Amendment Agreement, (vii) the
Security Agreements, (viii) the Pledge Agreement, (ix) the Registration
Rights Agreement, (x) the Intercreditor Agreements and (xi) 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.
"New Interim Notes" means the separate secured promissory notes,
dated as of April 19, 1999, between IMC Mortgage Company and each of the
GSCP Funds.
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"Note Purchase and Amendment Agreement" means the Note Purchase
and Amendment Agreement, dated as of May 18, 1999, among IMC Mortgage
Company, certain of its subsidiaries, and the GSCP Funds.
6. 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) and the May Interim Notes (as defined in the Note Purchase
and Amendment Agreement) and to extend to the Company the loans provided
for thereunder, 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 Loan
Agreement, the Note, the New Interim Notes, the May Interim Notes, the
Borrower Security Agreement, the Pledge Agreement, the Note Purchase and
Amendment Agreement and the Registration Rights Agreement (collectively,
the "Principal Documents").
7. Amendment to Loan Agreement. The Loan Agreement is hereby
amended by deleting the first sentence of Section 2.4(a) thereof and
substituting therefor the following:
The Loan shall bear interest on the outstanding principal amount
at a rate of 10% per annum through May 18, 1999, and at a rate of
20% per annum thereafter.
8. Further Amendments. If, upon the occurrence of the Acquisition
(as defined in the Acquisition Agreement), all amounts outstanding under the May
Interim Notes have not been repaid in full, the Lenders may apply all or any
portion of the amounts owing to them under the May 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 May 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 evidencing any portion of the May 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.
5
9. 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.
10. Governing Law. This Agreement shall be governed by the laws
of the State of New York (regardless of the laws that might otherwise govern
under applicable principles of conflicts of law) as to all matters, including,
but not limited to, matters of validity, construction, effect, performance and
remedies.
11. 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.
12. 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.
6
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
$[ ] May 18, 1999
FOR VALUE RECEIVED, the undersigned, IMC MORTGAGE COMPANY, 0000
X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Borrower"), a Florida corporation,
hereby promises to pay to GREENWICH STREET CAPITAL PARTNERS II, L.P. (the
"Lender"), c/o GSCP, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
registered assigns, the principal sum of [ ] DOLLARS ($[ ].00), 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.
1. Prepayment. (a) The Borrower shall immediately apply any
amounts that the Borrower receives in respect of the Borrower's role as servicer
in respect of securitization transactions to prepayment of this Note.
(b) 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.
2. 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.
3. 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
2
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.
4. 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
3
from and against, all costs and expenses of collection or enforcement hereof
incurred by the holder hereof, including reasonable attorneys' fees and
disbursements.
5. Security, Guarantee. This Note is entitled to the benefits of
the Borrower Security Agreement, the Subsidiary Security Agreement, the
Guarantee 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 and the Note
Purchase and Amendment Agreement, dated as of May 18, 1999, which contain
provisions for the securing and guaranteeing of this Note and the Loan evidenced
hereby upon the terms and conditions specified therein.
6. 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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