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 XXXXX XXXXXX REAL ESTATE SECURITIES, INC., a Delaware
corporation (the "Existing Lender"). Capitalized terms used in this Agreement
without definition have the meanings given to them in the Loan Agreement (as
hereinafter defined) as such terms are defined in the Loan Agreement on the date
hereof.
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 a Loan and Security Agreement, dated as of February 28,
1998, as amended from time to time, by and among the Company and certain of its
Subsidiaries, (the "Existing Loan Agreement"), and other related agreements in
favor of the Existing Lender (collectively with the Existing Loan Agreement, the
"Existing Loan Documents"), the Existing Lender has 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 Lender have
agreed to enter into this Agreement (the "Intercreditor Agreement"), whereby the
Existing Lender
will agree, subject to the terms and conditions of this Agreement, (i) to
refrain from exercising certain rights and remedies it has under the Existing
Loan Agreement 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 their obligations under the
Existing Loan Agreement, the Existing Lender will hold the Collateral for the
benefit of the Facility Lenders or, if the Collateral held is subject to any
other prior liens of any other creditor for the benefit of such other creditor.
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 Lender to take any actions to
preserve, protect or perfect its liens in the Collateral;
(iv) declare a default or event of default under, or exercise
or enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Loan Document or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any
of the Collateral.
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(b) The Standstill Period may be terminated by the Existing
Lender or the Facility Lenders by written notice to the Company and each other
Creditor upon the occurrence of any of the following:
(i) a failure by the Company under the Existing Loan
Agreement to make to the Existing Lender any scheduled payment of
interest, which failure continues unremedied for two days, 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 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;
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(ix) a Change of Control or payment of the Take-out
Premium; and
(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, agree ment, composition, extension or adjustment 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 foregoing; or
(ii) an order, judgment or decree shall be entered in any
proceeding by any court of competent jurisdiction appointing, without the
consent of the Company, a receiver, trustee or liquidator of the Company or any
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
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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 competent 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 Lender
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 Lender of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill Period, the
Facility Lenders will not seek to attach, sequester, foreclose 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. The Existing Lender hereby
acknowledges and consents to the entrance by the Company into the Loan Documents
and the granting of the lien in the Collateral granted pursuant to Section 2;
provided, however, notwithstanding anything to the contrary contained in the
Loan Agreement, the Notes or any of the Loan Documents, any security interest in
or other rights with respect to any Collateral granted to secure the Existing
Obligations under the Existing Loan
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Agreement 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) The 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, provided that if such Collateral is
then subject to the prior lien of another creditor, the Existing Lender may
forward such Collateral, proceeds and products thereof to such other creditor
or, in the event of a dispute, to such party as a court of competent
jurisdiction may direct.
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 Lender under the Existing
Loan Agreement to enforce any condition precedent to any obligation it may have
thereunder to make future Advances to the Company and its Subsidiaries, nor
shall this Agreement limit the right of the Existing Lender to make Margin Calls
in respect of the hedging transactions with respect to U.S. treasury securities
that the Company may have entered into with the
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Existing Lender outside of the Existing Loan Documents. All rights and
obligations of the Existing Lender under the Existing Loan Documents to make
Advances or not make Advances shall not be affected by this Agreement.
Section 5. Fee. Upon consummation of a Change in Control, the Company
shall pay the Existing Lender a fee of $1,000,000 payable in immediately
available funds to such account at such bank as the Existing Lender 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 conditions 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
Lender, more favorable to such Other Existing Lender, it shall be a condition to
the performance of the Existing Lender 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).
The Company shall furnish the Existing Lender complete and correct copies of
each such Other Intercreditor Agreement.
Section 7. Certain Definitions.
"Advance" means any advance made by the Existing Lender under the
Existing Loan Agreement.
"Advance Rate" means the percentage rate to be applied to the Market
Value of any Eligible Asset, at which rate Lender may make an Advance to the
Borrower or its Subsidiaries.
"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
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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
(iii) the Company engages in a merger, consolidation
or similar business combination with any third party.
"Collateral" means (i) any Eligible Asset pledged by the Borrower or
its Subsidiaries and accepted by the Existing Lender in connection with either
an Advance or in response to a Margin Call; (ii) the contractual right to
receive payments, including the right to payments of principal and interest and
the right to enforce such payments, arising from or under any of the Eligible
Assets; (iii) the contractual right to service each Pledged Loan; (iv) 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 (v) any and all proceeds, payments, income, profits and
products thereof, and all files and records relating thereto.
"Collateral Value" means, with respect to any Eligible Asset pledged by
Borrower and its Subsidiaries to the Existing Lender, the product of the related
Market Value and the related Advance Rate.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Creditor" means any of the Facility Lenders, the Existing Lender or
any Other Existing Lender.
"Eligible Asset" means any Pledged MBS or Pledged Loan.
"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, 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
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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.
"Margin Call" means the right of the Existing Lender to give notice to
require the Company to transfer to the Existing Lender cash or additional
Collateral.
"Market Value" means the value of any Eligible Asset as determined by
the Existing Lender in its sole discretion.
"Mortgage Loan" means any first-lien or second-lien residential
mortgage loan originated and serviced by the Company or its Subsidiaries in
accordance with the Seller's Guide.
"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan that is
pledged by the Company or its Subsidiaries and accepted by the Existing Lender
in connection with an Advance.
"Pledged MBS" means any residual, subordinated or interest strip class
of asset-backed security (i) issued in connection with a securitization in which
Existing Lender or its designee acted as lead or co-lead underwriter or
placement agent and (ii) pledged by Company and its Subsidiaries and accepted by
Lender in connection with an Advance.
"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.
"Seller's Guide" means the "IMC Mortgage Company Client Operations
Manual", together with the underwriting guidelines of the Company and its
Subsidiaries, a true and correct copy of which was previously provided to the
Existing Lender by the Company and its Subsidiaries.
"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
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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 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 1(c) hereof.
"Wet Mortgage Loan" means any residential mortgage loan originated by
the Company and its Subsidiaries in accordance with the Seller's Guide, with
respect to which all of the related documents required to be delivered in
connection with any Advance have not been deposited with the custodian on or
prior to the related Advance Date.
Section 8. Notice of Advances under the Loan Agreement; etc. (a) The
Company shall give prior written notice to the Existing Lender 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 Lender immediately upon either the
funding of an Additional Advance (together with such evidence thereof as the
Existing Lender 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 Lender
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 Lender or the Facility Lenders of their rights in
respect of the Collateral, provided that the foregoing shall not be construed to
modify the provisions of Sections 2(b) and 3 hereof. This document shall not
constitute a waiver, amendment or modification of the Existing Loan Documents,
the Existing Obligations or the Loan Documents except as expressly referred to
herein and shall not be construed as a waiver or consent to any future action on
the part of the Company that would require a waiver or consent of the Existing
Lender or the Facility Lenders, respectively, except to the extent expressly
provided herein.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agreement shall be effective and binding unless in writing and signed by
the Existing Lender, the Other Existing 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 OT 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
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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 Lender and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective obligations and duties hereunder and, to the extent the
Existing Loan Documents so provide, under the Existing Loan Documents, and for
any reasonable fees and expenses of legal or other professional advisors to the
Existing Lender and the Facility Lenders engaged in connection with the
preparation and negotiation of this Agreement.
Section 15. Agreement May Constitute Financing Statement. The Company
and the Existing Lender consents to the filing of this Agreement or a photocopy
thereof as a financing statement under the UCC as in effect in any jurisdiction
in which the Facility Lenders may determine such filing to be necessary or
desirable.
Section 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, Attn.: 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, Attn.: 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
Lender: PaineWebber Real Estate Securities, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxxxxxxxxxx, Tel: (212) 000- 0000,
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Fax: (000) 000-0000; with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx X.X. Xxxxxxx, Esq., Tel: (212) 504-
6000; 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 Lender may sell, assign, participate or otherwise
transfer or dispose of all or any portion of the Loan or the Existing
Obligations to any Person unless such Person shall have assumed and agreed to be
bound by the terms hereof by written instrument in form reasonably satisfactory
to the Company and each other Creditor.
Section 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.
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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:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
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
15
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:
16
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:
17
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:
18
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:
19
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 March 17, 1998, by and among 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., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as lender.
Loan and Security Agreement, dated March 17, 1998, by and among 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., 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
