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LOAN AGREEMENT
between
IMC MORTGAGE COMPANY,
a Florida corporation
INDUSTRY MORTGAGE COMPANY, L.P.,
a Delaware limited partnership
and
IMC CORPORATION OF AMERICA,
a Delaware corporation
as Borrowers
and
NOMURA ASSET CAPITAL CORPORATION,
as Lender
DATED AS OF SEPTEMBER 30, 1996
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND REFERENCES....................................................1
1.1 Definitions...................................................................1
1.2 Time References...............................................................8
1.3 Other References..............................................................8
1.4 Accounting Principles.........................................................9
SECTION 2. BORROWING PROVISIONS..........................................................9
2.1 Commitment....................................................................9
2.2 Borrowing Request.............................................................9
2.3 Fundings.....................................................................10
2.4 Wet-Borrowings...............................................................10
2.5 Multiple Borrowers...........................................................10
2.6 HELOC Characteristics........................................................11
SECTION 3. PAYMENT TERMS................................................................11
3.1 Note.........................................................................11
3.2 Payment Procedures...........................................................11
3.3 Scheduled Payments...........................................................11
3.4 Prepayments; Margin Calls....................................................12
3.5 Order of Application.........................................................12
3.6 Interest Rates...............................................................12
3.7 Basis Unavailable or Inadequate for LIBOR....................................13
3.8 Additional Costs.............................................................13
3.9 Change in Laws...............................................................14
SECTION 4. RELEASE OF COLLATERAL; SERVICING.............................................14
4.1 Release of Collateral........................................................14
SECTION 5. CONDITIONS PRECEDENT.........................................................15
SECTION 6. REPRESENTATIONS AND WARRANTIES...............................................16
6.1 Purpose of Credit............................................................16
6.2 About the Borrowers..........................................................16
6.3 Authorization and Contravention..............................................16
6.4 Binding Effect...............................................................16
6.5 Fiscal Year..................................................................16
6.6 Current Financials...........................................................16
6.7 Solvency.....................................................................17
6.8 Litigation...................................................................17
6.9 Transactions with Affiliates.................................................17
6.10 Taxes........................................................................17
6.11 Employee Plans...............................................................17
6.12 Property.....................................................................17
6.13 Intellectual Property........................................................17
6.14 Environmental Matters........................................................18
(i)
6.15 Government Regulations.......................................................18
6.16 Insurance....................................................................18
6.17 Full Disclosure..............................................................18
6.18 Collateral...................................................................18
6.19 Conflicts....................................................................19
SECTION 7. AFFIRMATIVE COVENANTS........................................................19
7.1 Reporting Requirements.......................................................19
7.2 Use of Proceeds..............................................................19
7.3 Books and Records............................................................20
7.4 Inspections..................................................................20
7.5 Taxes........................................................................20
7.6 Expenses.....................................................................20
7.7 Maintenance of Existence, Assets, and Business...............................20
7.8 Insurance....................................................................20
7.9 INDEMNIFICATION..............................................................21
7.10 Management...................................................................21
7.11 Records......................................................................21
7.12 Collection Efforts...........................................................21
7.13 Servicing....................................................................21
SECTION 8. NEGATIVE COVENANTS...........................................................21
8.1 Debt.........................................................................21
8.2 Liens........................................................................21
8.3 Merger or Consolidation......................................................21
8.4 Liquidations and Dispositions of Assets......................................22
8.5 Use of Proceeds..............................................................22
8.6 Compliance with Laws and Documents...........................................22
8.7 Assignment...................................................................22
8.8 HELOCs.......................................................................22
SECTION 9. DEFAULTS AND REMEDIES........................................................22
9.1 Default......................................................................22
9.2 Remedies.....................................................................23
9.3 Right of Offset..............................................................24
9.4 Waivers......................................................................24
9.5 Performance by Lender........................................................24
9.6 No Responsibility............................................................25
9.7 No Waiver....................................................................25
9.8 Cumulative Rights............................................................25
9.9 Costs........................................................................25
SECTION 10. MISCELLANEOUS................................................................25
10.1 Nonbusiness Days.............................................................25
10.2 Communications...............................................................25
10.3 Form and Number of Documents.................................................26
10.4 Exceptions to Covenants......................................................26
10.5 Survival.....................................................................26
(ii)
10.6 Governing Law................................................................26
10.7 Invalid Provisions...........................................................26
10.8 Conflicts Between Loan Documents.............................................26
10.9 Discharge and Certain Reinstatement..........................................26
10.10 Amendments, Consents, Conflicts, and Waivers.................................26
10.11 Multiple Counterparts........................................................26
10.12 Parties......................................................................27
10.13 Participations...............................................................27
10.14 Jurisdiction; Venue; Service of Process; and Jury Trial......................27
10.15 Entire Agreement.............................................................28
SCHEDULES AND EXHIBITS
Schedule 2.1 - Underwriting Guidelines
Schedule 2.6 - HELOC Characteristics
Schedule 5 - Closing Conditions
Schedule 6.2 - Information Regarding Borrowers
Schedule 6.8 - Litigation and Judgments
Schedule 6.9 - Affiliate Transactions
Exhibit A - Form of Note
Exhibit B-1 - Form of Custodial Agreement
Exhibit B-2 - Form of Liquidity Agreement
Exhibit C-1 - Form of Security Agreement
Exhibit C-2 - Form of Financing Statement
Exhibit D - Form of Borrowing Request
Exhibit E-1 - Form of Opinion of Counsel to Borrowers
Exhibit E-2 - Form of Opinion of Counsel to Custodian
Exhibit F - Form of Amendment
(iii)
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "AGREEMENT") is entered into as of September
30, 1996, between IMC MORTGAGE COMPANY, a Florida corporation, INDUSTRY MORTGAGE
COMPANY, L.P., a Delaware limited partnership, and IMC CORPORATION OF AMERICA, a
Delaware corporation (collectively, "BORROWERS"), and NOMURA ASSET CAPITAL
CORPORATION, a Delaware corporation ("LENDER").
RECITALS
Borrowers originate and acquire mortgage loans evidencing home equity
lines of credit. Borrowers have jointly and severally requested Lender to
provide Borrowings as may be requested from time to time by Borrowers to finance
their mortgage lending business. Lender has agreed to extend those Borrowings
subject to the terms and conditions of the Loan Documents, including, without
limitation, that the total Borrowings may never exceed the then-applicable
Commitment and that a Borrowing Excess may never exist. Borrowers are granting
to Lender first-priority Liens upon, among other things, the Collateral
delivered to Lender under the Loan Documents.
ACCORDINGLY, for adequate and sufficient consideration, Borrowers and
Lender agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES. Unless stated otherwise, the following
provisions apply to each Loan Document and annexes, exhibits, and schedules to
-- and certificates, reports, and other writings delivered under -- the Loan
Documents.
1.1 Definitions.
AFFILIATE means, for any Person, any other individual or entity that --
directly or indirectly through ownership, voting securities, contract, or
otherwise -- controls, is controlled by, or under common control with that
Person.
ALTERNATE RATE BORROWINGS is defined in SECTION 3.7.
BORROWER or BORROWERS is defined in the preamble to this Agreement.
BORROWING means any amount disbursed by Lender whether in the form of a
HELOC Borrowing or a Liquidity Borrowing.
BORROWING BASE means an amount, as of any date of determination, equal
to 97% of the aggregate Market Value of the HELOCs, but in no event more than
the aggregate outstanding balances of the HELOCs.
BORROWING DATE means, for any Borrowing, the date it is disbursed.
BORROWING EXCESS means, at any time, the amount by which the Principal
Debt exceeds the Borrowing Base.
BORROWING REQUEST means a request executed by Borrowers and delivered to
Lender in substantially the form of EXHIBIT D.
BUSINESS DAY means any day other than Saturday, Sunday, and any other
day that Lender is authorized or obligated by Law to be closed in New York, New
York, and which is a day for trading by and between banks for dollar deposits in
the London Interbank Market.
CALENDAR MONTH means any calendar month or portion of a calendar month
that occurs at any time from the date of this Agreement to the date that the
Obligation is paid in full and all commitments to lend under this Agreement have
terminated or been canceled.
CALENDAR QUARTER means any calendar quarter or portion of any calendar
quarter that occurs at any time from the date of this Agreement to the date that
the Obligation is paid in full and all commitments to lend under this Agreement
have terminated or been canceled.
CASH INTEREST EXPENSE means, for Borrowers and their Subsidiaries for
any period, total interest expense in respect of Debt actually paid or that is
payable during such period, including without limitation, all commissions,
discounts and other fees and charges with respect to letters of credit, but
excluding interest expense not payable in cash, all as determined in accordance
with GAAP.
CLOSING DATE means September 30, 1996.
COLLATERAL means all collateral defined in the Security Agreement.
COLLATERAL CUSTODIAN means, at any time, LaSalle National Bank -- or its
successor appointed under the Custodial Agreement -- acting as custodian for
Lender under the Loan Documents.
COLLATERAL DOCUMENTS means the documents and other items required to be
delivered under the Custodial Agreement.
COLLECTION ACCOUNT means a deposit account established by Borrowers with
Sub-Servicer -- styled and numbered "IMC Collection Account, in trust for Nomura
Asset Capital Corporation," Account No. ___________ -- for deposit of payments
from Mortgagors and deposit of Liquidity Contributions by Sub-Servicer.
COMMITMENT means -- initially, an amount equal to $30 million provided,
however, that, so long as no Default or Potential Default has occurred and is
continuing, upon the written request of Borrowers, the Commitment may be, at the
sole discretion of Lender, increased by $10 million or integral multiples
thereofs, provided further that the total Commitment shall in no event exceed
$100 million.
CONSOLIDATED ADJUSTED NET INCOME means consolidated net earnings after
income taxes of Borrowers and their Subsidiaries, but excluding (a)
extraordinary gains, (b) gains due to sales or write-up of assets, (c) earnings
of any Person newly acquired, if earned prior to acquisition or (d) gains due to
acquisitions of any securities of Borrowers or any of their Subsidiaries.
CURRENT FINANCIALS means either (a) the Borrowers' Financials for the
year ended December 31, 1995, as supplemented by the quarterly financials for
the period through March 31, 1996, as delivered to
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Lender prior to the Closing Date or (b) at any time after the Borrowers' annual
Financials are first delivered under SECTION 7.1, the Borrowers' annual
Financials then most recently delivered to Lender and subsequent quarterly
Financials then most recently delivered to Lender.
CUSTODIAL AGREEMENT means the Custodial Agreement, in the form of
EXHIBIT B-1 hereto, dated as of the date hereof by and between Collateral
Custodian, Borrowers and Lender, as such Custodial Agreement may be amended or
supplemented from time to time.
DEBT, for any Person and without duplication, means (a) all obligations
required by GAAP to be classified upon that Person's balance sheet as
liabilities, (b) liabilities secured (or for which the holder of the liabilities
has an existing Right, contingent or otherwise, to be so secured) by any Lien
existing on property owned or acquired by that Person, (c) obligations that
under GAAP should be capitalized for financial reporting purposes, and (d) all
guaranties, endorsements, and other contingent obligations with respect to Debt
of others or in respect of any Employee Plan.
DEBTOR LAWS means all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization,
or similar Laws from time to time in effect and generally affecting creditors'
Rights.
DEFAULT is defined in SECTION 9.1.
DEFAULT RATE means, as of any day on which a Default has occurred and is
continuing, an annual interest rate equal to LIBOR plus 5.5%.
DELINQUENT HELOC means any HELOC that is 30 or more days contractually
past due.
DISTRIBUTION -- with respect to any shares of any capital stock or other
equity securities issued by a Person -- means (a) the retirement, redemption,
purchase, or other acquisition for value of those securities, (b) the
declaration or payment of any dividend with respect to those securities, (c) any
loan or advance by that Person to, or other investment by that Person in, the
holder of any of those securities, and (d) any other payment by that Person with
respect to those securities.
DRY BORROWING means a HELOC Borrowing which is not a Wet Borrowing.
DRY FUNDING ACCOUNT means a deposit account established by Borrowers,
styled and numbered "IMC Dry Funding Account, in trust for Nomura Asset Capital
Corporation" Account No. ________________, for deposit of Dry Borrowings.
EMPLOYEE PLAN means an employee-pension-benefit plan covered by Title IV
of ERISA and established or maintained by any Borrower.
ENVIRONMENTAL LAW means any Law that relates to pollution, the
protection of human health and the environment, health and safety, or to
Hazardous Substances, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601, et seq.), the Solid Waste Disposal Act, as amended (42
U.S.C. Section 6901 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), the Clean Air Act, as amended (42
U.S.C. Section 7401, et seq.), the Federal Water Pollution Control Act, as
amended (33
3
U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Section 2601 et seq.), the Safe Drinking Water Act, as amended (42 U.S.C.
Section 300f et seq.), the Atomic Energy Act, as amended (42 U.S.C. Section 2014
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act, as amended (7
U.S.C. Section 136, et seq.), the Oil Pollution Act of 1990, as amended (33
U.S.C. Section 2701, et seq.), the Emergency Planning and Community
Right-to-Know Act of 1986, as amended (42 U.S.C. Section 11001, et seq.), the
Occupational Safety and Health Act, as amended (29 U.S.C. Section 651 et seq.),
the Texas Water Code, as amended, and the Texas Health and Safety Code, as
amended, as well as the regulations adopted and publications promulgated
pursuant to the above.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all regulations issued pursuant
thereto.
ERISA AFFILIATES means Borrowers and every trade or business (whether or
not incorporated) that, together with any Borrower, would be treated as a
single-employer under 'SS' 4001 of ERISA.
FINANCIALS means, with respect to each Borrower, balance sheets, profit
and loss statements, statements of cash flow, and any other financial
statements, reports, or information specified by Lender.
FIXED CHARGES means, for any period for Borrowers and their
Subsidiaries, the sum of (a) Cash Interest Expense, (b) operating lease expenses
and (c) rent expenses.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board that are applicable from time to time.
HAZARDOUS SUBSTANCE means any substance, material or waste (a) the
presence or release of which requires reporting, investigation or remediation
under any Environmental Law, (b) which is defined or listed as a hazardous
waste, hazardous substance, extremely hazardous waste, restricted hazardous
waste, hazardous material, toxic substance, or other similar or related term
under any Environmental Law, (c) which is toxic, radioactive, or otherwise
classified as hazardous or toxic and is or becomes regulated by any governmental
authority as a threat to human health or the environment, (d) the presence of
which causes or threatens to cause a nuisance upon the property or to adjacent
property, (e) the presence of which on adjacent properties could constitute a
trespass, (f) which is asbestos, (g) which is polychlorinated biphenyls, or (h)
which contains petroleum or any petroleum-derived product.
HELOC means a home equity line of credit pledged as Collateral to Lender
that is evidenced by a valid promissory note and is secured by a mortgage, deed
of trust or trust deed that grants a first or second priority lien on underlying
one-to-four family residences, townhouses, condominiums, and planned unit
developments.
HELOC BORROWING is defined in SECTION 2.1(b).
INTEREST DETERMINATION DATE means the day LIBOR is redetermined which
day shall be the first Business Day of each Calendar Month.
INTEREST RATE means an annual interest rate equal to LIBOR plus 1.5%.
4
IRC means the Internal Revenue Code of 1986, as amended.
LAWS means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, opinions, and
interpretations of any Tribunal.
LENDER is defined in the Preamble to this Agreement.
LENDER LIEN means any present or future first-priority (except as
otherwise specifically provided in the Loan Documents) Lien securing the
Obligation and assigned, conveyed, and granted to or created in favor of Lender
under the Loan Documents.
LIBOR BORROWINGS means any Borrowing that bears interest based on LIBOR.
LIBOR shall mean the rate of interest determined by Lender at which
deposits in dollars for a one-month period are offered based on information
presented on Bloomberg on the day which is two (2) Business Days prior to the
date of a Borrowing; provided, that if at least two such offered rates appear on
the Bloomberg in respect of such one-month period, the arithmetic mean of all
such rates (as determined by Lender) will be the rate used; provided, further,
that if Bloomberg ceases to provide LIBOR quotations, such rate shall be the
average rate of interest determined by Lender at which deposits in Dollars are
offered for a one-month period by Citibank, N.A. (or its successor) to Lender in
the London interbank market as of 11:00 A.M. (London time) on the applicable
Borrowing Date. LIBOR for each Borrowing shall be initially established as of
the date of such Borrowing and such Borrowing shall bear interest at such rate
through the date preceding the next succeeding Interest Determination Date. On
such Interest Determination Date, and on each Interest Determination Date
thereafter, LIBOR shall be recalculated as of such Interest Determination Date
and the Borrowing shall bear interest at LIBOR from such Interest Determination
Date through the day preceding the next succeeding Interest Determination Date.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind and any other
arrangement for a creditor's claim to be satisfied from assets or proceeds prior
to the claims of other creditors or the owners.
LIQUIDITY AGREEMENT means the Liquidity Agreement, in the form of
Exhibit B-2 hereto, dated as of the date hereof by and between Sub-Servicer,
Lender, and Borrowers, as such Liquidity Agreement may be amended or
supplemented from time to time.
LIQUIDITY BORROWING is defined in SECTION 2.1(b).
LIQUIDITY CONTRIBUTIONS means any amount advanced by Sub-Servicer from
its own funds or funds in the Collection Account in accordance with the
Liquidity Agreement.
LITIGATION means any action by or before any Tribunal.
LOAN DOCUMENTS means (a) this Agreement, certificates and reports
delivered under this Agreement, and exhibits and schedules to this Agreement,
(b) all agreements, documents, and instruments in favor of Lender ever delivered
under this Agreement or otherwise delivered in connection with any of the
Obligation, including, but not limited to, the Custodial Agreement, and the
Liquidity Agreement, and
5
(c) all renewals, extensions, and restatements of, and amendments and
supplements to, any of the foregoing.
LOCKBOX ACCOUNT means a deposit account established by Borrowers with
Sub-Servicer -- styled and numbered "IMC Lockbox Account, in trust for Nomura
Asset Capital Corporation," Account No. ___________ -- for deposit of payments
from Mortgagors by Sub-Servicer.
MARKET VALUE means, for each HELOC, the value thereof as determined by
Lender in its sole discretion at any time.
MATERIAL-ADVERSE EVENT means any circumstance or event that,
individually or collectively, is reasonably expected to result in any (a)
impairment of any Borrower's ability to perform any of its payment or other
material obligations under any Loan Document or other Material Agreement or
Lender's ability to enforce any of those obligations or any of its Rights under
any Loan Document, (b) material adverse effect on any Collateral, or (c) Default
or Potential Default.
MATERIAL AGREEMENT means, for any Person, any agreement to which that
Person is a party, by which that Person is bound, or to which any assets of that
Person may be subject, and that is not cancelable by that Person upon less than
30-days notice without liability for further payment other than nominal penalty,
and the default under which or cancellation or forfeiture of which would be a
Material- Adverse Event.
MATURITY DATE means the earlier of either (a) occurrence of a Default,
or (b) September ____, 1997, unless extended pursuant to SECTION 2.1.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean -- for any day the
maximum non- usurious amount and the maximum non-usurious rate of interest that,
under applicable Law, Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MORTGAGED PROPERTY means, for each HELOC, the underlying real property
securing payment of the HELOC consisting of one-to-four family residences.
MORTGAGOR means each Person obligated to Borrowers under a HELOC.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in 'SS''SS'
3(37) or 4001(a)(3) of ERISA or 'SS' 414(f) of the IRC to which any ERISA
Affiliate is making, or has made, or is accruing, or has accrued, an obligation
to make contributions.
NET WORTH means, for any Person, its stockholder's equity as determined
under GAAP.
NOTE means a promissory note executed and delivered by Borrowers,
payable to Lender's order, initially in the stated principal amount of
$30,000,000.00 and substantially in the form of EXHIBIT A, as renewed, extended,
amended, or replaced.
OBLIGATION means all (a) present and future indebtedness, obligations,
and liabilities of any Borrower to Lender under any Loan Document, whether
principal, interest, fees, costs, attorneys' fees, or otherwise, (b) amounts
that would become due but for operation of 11 U.S.C. 'SS''SS' 502 and 503 or
any other
6
provision of Title 11 of the United States Code, (c) pre- and post-maturity
interest on any of the foregoing, including, without limitation, all
post-petition interest if any Borrower voluntarily or involuntarily files for
protection under any Debtor Law, and (d) all renewals, extensions, and
modifications of any of the foregoing.
OUTSTANDING NOTES REPORT means a report prepared by Collateral Custodian
and delivered to Lender in accordance with the terms of the Custodial Agreement.
PBGC means the Pension Benefit Guaranty Corporation.
PERMITTED DEBT means (i) the Obligation; (ii) obligations to pay Taxes;
(iii) liabilities for accounts payable, non-capitalized equipment or operating
leases, and other liabilities if in each case incurred in the ordinary course of
business; (iv) accrued expenses, deferred credits, and loss contingencies that
are properly classified as liabilities under GAAP; (v) any Debt existing as of
the date hereof; (vi) any other Debt permitted by Lender, and (vii) warehouse
lines of credit and subordinated debt.
PERSON means any individual, entity, or Tribunal.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance that would -- upon notice, time lapse, or both -- become a Default.
PRINCIPAL DEBT means, at any time, the aggregate principal amount
outstanding under the Note.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
RESPONSIBLE OFFICER means, with respect to each Borrower, the chairman,
president, vice president, chief executive officer, chief financial officer, or
any other officer designated as a "Responsible Officer" by any of the above in
writing to Lender.
RIGHTS means rights, remedies, powers, privileges, and benefits.
SECURITY AGREEMENT means the Security Agreement, dated as of the date
hereof, executed by Borrowers and Lender in substantially the form of EXHIBIT
C-1.
SOLVENT means, for any Person, that (a) the fair-market value of its
assets exceeds its liabilities, (b) it has sufficient cash flow to enable it to
pay its debts as they mature, and (c) it does not have unreasonably small
capital to conduct its businesses.
SUB-SERVICER means, at any time, LaSalle National Bank, or its successor
appointed under the Sub-Servicing Agreement.
SUB-SERVICING AGREEMENT means the Sub-Servicing Agreement dated as of
the date hereof, by and between Borrowers and Sub-Servicer, together with all
amendments and modifications thereto.
SUBSIDIARY of any Person means any entity of which at least 50% (in
number of votes) of the stock (or equivalent interests) is owned of record or
beneficially, directly or indirectly, by that Person.
7
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon it, its income, or any of its properties,
franchises, or assets.
TERMINATION DATE means the earlier of (a) the occurrence of a Default,
or (b) that date which is six months following the Maturity Date.
TRIBUNAL means any (a) local, state, or federal judicial, executive, or
legislative instrumentality, (b) private arbitration board or panel, or (c)
central bank.
UCC means the Uniform Commercial Code as enacted in New York or other
applicable jurisdictions.
UNDERWRITING GUIDELINES means those guidelines attached hereto on
SCHEDULE 2.1 under which each HELOC has been underwritten and originated and
which guidelines have been approved by Lender prior to the use thereof. Borrower
may, from time to time, modify the Underwriting Guidelines, provided such
modifications are approved in writing by Lender prior to the implementation
thereof.
WET BORROWING means a Borrowing as defined in the Custodial Agreement.
WET FUNDING ACCOUNT means a deposit account established by Sub-Servicer
__________, styled and numbered "IMC Wet Funding Account in trust for Nomura
Asset Capital Corporation," Account No. _________, for deposit of Wet
Borrowings.
WIRE INSTRUCTIONS mean, for any Person, the information for wire
transfers of funds to that Person, which (until changed by written notice to all
other parties to this Agreement) are stated for Borrowers and Lender beside
their names on the signature pages below.
1.2 Time References. Unless otherwise specified, in the Loan Documents
(a) time references (e.g., 10:00 a.m.) are to time in New York, New York, and
(b) in calculating a period from one date to another, the word "from" means
"from and including" and the word "to" or "until" means "to but excluding."
1.3 Other References. Unless otherwise specified, in the Loan Documents
(a) where appropriate, the singular includes the plural and vice versa, and
words of any gender include each other gender, (b) heading and caption
references may not be construed in interpreting provisions, (c) monetary
references are to currency of the United States of America, (d) section,
paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Document in which they are used, (e) references to "telecopy,"
"facsimile," "fax," or similar terms are to facsimile or telecopy transmissions,
(f) references to "including" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items that follow references to specific items as being
limited to the same type or character of those specific items is not applicable
in the Loan Documents, (h) references to any Person include that Person's heirs,
personal representatives, successors, trustees, receivers, and permitted
assigns, (i) references to any Law include every amendment or supplement to it,
rule and regulation adopted under it, and successor or replacement for it, and
(j) references to any Loan Document or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
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1.4 Accounting Principles. Unless otherwise specified, in the Loan
Documents (a) GAAP determines all accounting and financial terms and compliance
with financial covenants, (b) otherwise, all accounting principles applied in a
current period must be comparable in all material respects to those applied
during the preceding comparable period, and (c) while Borrowers have any
consolidated Subsidiaries (i) all accounting and financial terms and compliance
with reporting covenants must be on a consolidating and consolidated basis, as
applicable and (ii) compliance with financial covenants must be on a
consolidated basis.
SECTION 2. BORROWING PROVISIONS.
2.1 Commitment, Use of Proceeds.
(a) Subject to the conditions of this Agreement, Lender agrees to
extend to Borrowers a revolving line of credit which shall not exceed at
any time the then-applicable Commitment. The amount of the
then-applicable Commitment available to Borrowers at any time shall be
equal to the then-applicable Commitment less the aggregate face amount
of the HELOCs.
(b) Borrowings advanced hereunder may be used by Borrowers to (i)
acquire, originate and purchase HELOCs which meet the criteria specified
in the Underwriting Guidelines ("HELOC BORROWINGS") and (ii) reimburse
Sub-Servicer and/or the Collection Account for Liquidity Contributions
pursuant to the terms of the Liquidity Agreement ("LIQUIDITY
BORROWINGS"). From and after the Maturity Date, Borrowers shall not
request, and Lender shall have no obligation to fund, any HELOC
Borrowing, Lender's sole remaining commitment being to fund Liquidity
Borrowings through the Termination Date.
(c) Prior to the Maturity Date and in accordance with the terms
of this Agreement, Lender is hereby authorized, but is not required, to
record the date and principal amount of each Borrowing and any repayment
in respect of principal due under the Note on the schedule attached to
the Note.
(d) Lender and Borrower may mutually agree to extend the Maturity
Date provided, however, that Lender shall have no obligation to extend
the Maturity Date, such decision being at Lender's sole discretion, and,
provided further, that any such agreement to extend shall be in writing
and signed by Lender and Borrower.
(e) If at any time a HELOC fails to conform to the Underwriting
Guidelines, becomes a Delinquent HELOC or fails to meet the document
delivery requirements under the Custodial Agreement, then such HELOC
may, at Lender's sole discretion, be excluded from all calculations of
the Borrowing Base. In addition, with respect to each HELOC as to which
Lender has received an Outstanding Note Report from Collateral Custodian
in accordance with the Custodial Agreement, Lender may request that
Borrower repurchase such HELOC the next Business Day.
2.2 Borrowing Request. Borrowers may only request a borrowing by timely
delivery to (i) lender and collateral custodian the information required
pursuant to Exhibit i of the Custodial Agreement, (ii) collateral custodian the
collateral documents as required under section 2 of the custodial agreement and
(iii) lender a borrowing request for the borrowing before 4:00 p.m. of the
business day before the borrowing date. A borrowing request is irrevocable and
binding on borrowers when
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delivered. HELOC Borrowings shall not be requested more frequently than once
per Business Day. Liquidity Borrowings shall be made on the first Business Day
of each week.
2.3 Fundings. Upon receipt of the documents set forth in SECTION 2.2,
Lender shall, for any Borrowing no later than 3:30 p.m. on the Borrowing Date --
unless to its actual knowledge any of the applicable conditions precedent have
not been satisfied by Borrowers or waived by the Lender -- either (i) wire
transfer funds into the Wet Funding Account for a HELOC Borrowing if a Wet
Borrowing or into the Dry Funding Account if a Dry Borrowing, or (ii) wire
transfer funds into the account designated by Sub-Servicer for a Liquidity
Borrowing. In addition, by 3:30 p.m. on each Borrowing Date Lender shall forward
to Collateral Custodian via modem a file containing the information required
pursuant to Exhibit I to the Custodian Agreement confirming the Wet Borrowings
occurring on such day.
2.4 Wet-Borrowings. With respect to each HELOC as to which a Wet
Borrowing is made, Borrowers confirm their grant under this Agreement of Lender
Liens as of the Borrowing Date thereof.
2.5 Multiple Borrowers.
(a) Borrowers. Each representation and warranty in the Loan
Documents by a Borrower is deemed to be its separate representation and
warranty and the joint and several representation and warranty of all
Borrowers. Each covenant and agreement by any Borrower under the Loan
Documents is the joint and several covenant and agreement of all
Borrowers. Any communication under the Loan Documents to any one
Borrower is deemed to have been concurrently received by each other
Borrower.
(b) Basis for Structure. Borrowers desire to utilize their
borrowing potential on a combined basis to the same extent possible if
they were merged into a single-corporate entity. Each Borrower has
determined that it will specifically and materially benefit from all
Borrowings. Borrowers intend and Lender has required that all Borrowers
jointly and severally execute and deliver this Agreement, the Note, and
certain other Loan Documents. Borrowers have requested and bargained for
the structure and terms of, and security for, all Borrowings.
(c) Joint and Several Obligation. Each Borrower irrevocably and
unconditionally agrees (i) that it is jointly and severally liable to
Lender for full payment and performance of the Obligation and all
obligations of Borrowers under the Loan Documents, (ii) to fully pay and
perform the Obligation and all of those obligations of Borrowers, and
(iii) TO INDEMNIFY, AS A PRIMARY OBLIGOR, LENDER AGAINST ANY LOSS LENDER
MAY INCUR AS A RESULT OF ANY OBLIGATIONS OF ANY BORROWER BEING OR
BECOMING VOID, VOIDABLE, UNENFORCEABLE, OR INEFFECTIVE FOR ANY REASON
WHATSOEVER, -- WHETHER KNOWN TO LENDER OR ANY OTHER PERSON -- THE AMOUNT
OF THAT LOSS BEING THE AMOUNT WHICH LENDER WOULD OTHERWISE HAVE BEEN
ENTITLED TO RECOVER FROM ANY BORROWER. THIS INDEMNITY SURVIVES THE
PAYMENT AND PERFORMANCE OF THE OBLIGATION AND TERMINATION OF THE LOAN
DOCUMENTS.
(d) Contribution Rights. Borrowers each intend that their joint
and several obligations under the Loan Documents are not subject to
challenge on any basis. Therefore, as of the date any transfer is deemed
to occur under the Loan Documents, each Borrower's liabilities under the
Loan Documents and all other liabilities -- calculated in each case to
the full extent of that Borrower's probable-net exposure when and if
those liabilities become absolute and mature (i.e.,
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"DATED LIABILITIES") -- are intended by that Borrower to be less than
the fair valuation of all of its assets as of that date (i.e., its
"DATED ASSETS"). To that end, each Borrower (i) grants to and
recognizes in each other Borrower ratable Rights of subrogation and
contribution in the amount, if any, by which the granting Borrower's
dated assets (but for the total subrogation and contribution in its
favor under this section) would exceed the granting Borrower's dated
liabilities, and (ii) acknowledges receipt of and recognizes its ratable
Rights to subrogation and contribution from each other Borrower in the
amount that the other Borrower's dated assets (but for the total
subrogation and contribution in its favor under this section) would
exceed the other Borrower's dated liabilities. Each Borrower will
recognize Rights of subrogation and contribution at least equal to its
obligations under the Loan Documents. It is a material objective of this
section that each Borrower recognize Rights to subrogation and
contribution rather than be deemed not to be Solvent by reason of an
arbitrary interpretation of its joint and several obligations under the
Loan Documents.
2.6 HELOC Characteristics. By 10:00 a.m. each Monday (or, if such is not
a Business Day, the next succeeding Business Day), Borrower shall forward to
Lender via modem a file containing the information set forth in SCHEDULE 2.6
with respect to each HELOC as of the immediately preceding Friday.
SECTION 3. PAYMENT TERMS.
3.1 Note. The Principal Debt (and related interest) due to Lender
hereunder shall be evidenced by the Note. Notwithstanding the principal amount
of the Note as stated on the face thereof, the amount of principal actually
owing on the Note in any given time shall be the aggregate of all Borrowings
theretofore made to Borrowers hereunder, less all payments of principal
theretofore actually received hereunder, by Lender. Lender is authorized, but is
not required, to endorse on a schedule attached to the Note appropriate
notations evidencing the date and amount of each Borrowing as well as the amount
of each principal payment made by Borrowers hereunder.
3.2 Payment Procedures. Borrowers shall jointly and severally make each
payment and prepayment on the Obligation to Lender in funds that are available
for immediate use by Lender. Payments that are received by 3:00 p.m. on a
Business Day are deemed received on that Business Day. Payments that are
received after 3:00 pm on a Business Day are deemed received on the next
Business Day. Interest on the Note shall continue to accrue through the calendar
day immediately before the Business Day on which the payment is deemed received.
3.3 Scheduled Payments. Unless otherwise provided in this Agreement,
Borrowers shall jointly and severally pay the Obligation in accordance with the
following table:
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OBLIGATION PAYABLE
========== =======
Interest on the Principal Debt unless a Default has occurred and is As it accrues (a) by 12:00 noon on the 1st Business Day of each
continuing Calendar Month, and (b) on the Termination Date.
Interest at the Default Rate if a Default has occurred and is On demand as it accrues
continuing
Principal Debt and any other unpaid Obligation On the Termination Date
3.4 Prepayments; Margin Calls.
(a) Borrowing Excess. If at any time a Borrowing Excess exists,
then -- on DEMAND -- Borrowers shall eliminate such Borrowing Excess by
(i) delivering to Lender, in accordance with this Agreement, additional
Collateral that causes the Borrowing Base to increase, (ii) prepaying
Principal Debt to Lender, or (iii) any combination of the actions under
CLAUSES (I) and (II) above.
(b) Voluntary Prepayments. Borrowers may voluntarily prepay all
or any part of the Obligation at any time without premium or penalty
upon five (5) days prior written notice to Lender. Any prepayment of the
Note hereunder shall be (i) made together with interest accrued (through
the date of such prepayment) on the Principal Debt prepaid, and (ii)
applied first to accrued interest and then in reduction of the Principal
Debt.
3.5 Order of Application. All payments and proceeds -- whether
voluntary, involuntary, through the exercise of any Right of set-off or other
Right, realization against any Collateral, or otherwise -- shall be applied in
the following order:
(a) All reasonable costs and expenses incurred by Lender in
connection with its duties under the Loan Documents -- including,
without limitation, fees and expenses paid by Lender to any servicing
companies retained by Lender to assist it in servicing any Collateral
required to be serviced, to any attorneys, or to any agents -- that have
not been reimbursed by Lender, payable solely to Lender.
(b) Accrued and unpaid interest on the Obligation at the
applicable rate.
(c) Principal Debt .
(d) Any other portions of the Obligation.
(e) Either to any Borrower or to its successors or assigns on
behalf of all Borrowers, to be divided between them as they may agree or
as a court of competent jurisdiction may direct.
3.6 Interest Rates.
(a) Non-Default Rate. Unless a Default has occurred and is
continuing, all Principal Debt shall bear an annual interest rate equal
to the lesser of either (i) the Maximum Rate or (ii) the Interest Rate.
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(b) Default Rate. Upon the occurrence, and during the
continuation, of a Default, all Principal Debt and any past-due interest
on the Principal Debt shall bear an annual interest rate equal to the
lesser of either (i) the Maximum Rate or (ii) the Default Rate, from the
date due (stated or by acceleration) until paid, whether or not payment
is before or after entry of a judgment.
(c) Rate Changes. Each change in the Interest Rate, Default Rate,
and Maximum Rate shall be effective upon the effective date of change
without notice to Borrowers or any other Person.
(d) Calculations. Interest is calculated on the basis of actual
days (including the first but excluding the last) over a 360-day year --
unless the calculation would result in an interest rate greater than the
Maximum Rate, in which event interest is calculated on the basis of the
actual number of days in that year. All interest rate determinations and
calculations by Lender are conclusive and binding absent manifest error.
(e) Maximum Rate. Regardless of any Loan Document provision,
Lender is not entitled to contract for, charge, take, reserve, receive,
or apply, as interest on all or any of the Obligation any amount in
excess of the Maximum Rate. If Lender ever does so, then any excess is
to be treated as a partial prepayment in reduction of Principal Debt,
and any remaining excess shall be refunded to Borrowers, as the case may
be.
3.7 Basis Unavailable or Inadequate for LIBOR. If, on or before any date
when LIBOR is to be determined for a Borrowing, Lender determines that the basis
for determining the applicable rate is not available or that the resulting rate
does not accurately reflect the cost to Lender of making Borrowings at that rate
then Lender shall promptly notify Borrowers of that determination (which is
conclusive and binding on Borrowers, absent manifest error) and that until
Lender notifies Borrowers that it has determined that those circumstances no
longer exist -- which it shall promptly do -- Lender's Commitment under this
Agreement to make LIBOR Borrowings are suspended. In such event, Borrowers shall
either (i) repay in full the then-outstanding principal amount of LIBOR
Borrowings, together with accrued interest thereon or (ii) notify Lender of
Borrowers' desire to convert such LIBOR Borrowings to Borrowings bearing a
comparable alternative interest rate as reasonably determined by Lender (the
"ALTERNATE RATE BORROWINGS").
3.8 Additional Costs. This section shall survive the full satisfaction
of the Obligation and termination of the Loan Documents, and release of Lender
Liens.
(a) For any LIBOR Borrowing, if (i) (A) any change after the date
of this Agreement in any present Law -- and for purposes of this SECTION
3.8, Law includes interpretations and guidelines of any Tribunal whether
or not having the force of Law -- or any future Law imposes, modifies,
or deems applicable (or if compliance by Lender with any requirement of
any Tribunal results in) any requirement that any reserves (including,
without limitation, any marginal, emergency, supplemental, or special
reserves) be maintained, (B) those reserves reduce any sums receivable
by Lender under this Agreement or increase the costs incurred by Lender
in advancing or maintaining any portion of any LIBOR Borrowing, and (C)
Lender determines that the reduction or increase is material (and it
may, in determining the material nature of the reduction or increase,
utilize reasonable assumptions and allocations of costs and expenses and
use any reasonable averaging or attribution method), then (ii) Lender
shall deliver to Borrowers a
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certificate stating in reasonable detail the calculation of the amount
necessary to compensate it for its reduction or increase (which
certificate is conclusive and binding absent manifest error), and
Borrowers shall pay that amount to Lender within ten days after demand.
(b) For any Borrowing, if (i) (A) any change after the date of
this Agreement in any present Law or any future Law regarding capital
adequacy or compliance by Lender with any request, directive, or
requirement now or in the future imposed by any Tribunal regarding
capital adequacy or any change in the risk category of this transaction
reduces the rate of return on its capital as a consequence of its
obligations under this Agreement to a level below that which it
otherwise could have achieved (taking into consideration its policies
with respect to capital
adequacy) by an amount deemed by it to be material (and it may, in
determining the amount, utilize reasonable assumptions and allocations
of costs and expenses and use any reasonable averaging or attribution
method), then (ii) Lender shall notify Borrowers and deliver to
Borrowers a certificate stating in reasonable detail the calculation of
the amount necessary to compensate it (which certificate is presumed
correct), and Borrowers shall pay that amount to Lender within ten days
after demand.
(c) Any Taxes payable by Lender or ruled (by a Tribunal) payable
by Lender in respect of any Loan Document shall -- if permitted by Law
and if deemed material by Lender (who may, in determining the material
nature of the amount payable, utilize reasonable assumptions and
allocations of costs and expenses and use any reasonable averaging or
attribution method) -- be paid by Borrowers, together with interest and
penalties, if any (except for Taxes payable on the overall net income of
Lender and except for interest and penalties incurred as a result of the
gross negligence or willful misconduct of Lender). Lender shall notify
Borrowers and deliver to Borrowers a certificate stating in reasonable
detail the calculation of the amount of payable Taxes, which certificate
is conclusive and binding (absent manifest error), and Borrowers shall
pay that amount to Lender within ten days after demand. If Lender
subsequently receives a refund of the Taxes paid to it by Borrowers,
then the recipient shall promptly pay the refund to Borrowers.
3.9 Change in Laws. If any change, after the date of this Agreement, in
any present Law or any future Law makes it unlawful for Lender to make or
maintain LIBOR Borrowings, then Lender shall promptly notify Borrowers and (a)
as to undisbursed funds, any requested Borrowing shall be made as a an
Alternative Rate Borrowing and (b) as to any outstanding Borrowing, the
Borrowing shall be converted to an Alternative Rate Borrowing as of the date of
notice.
SECTION 4. RELEASE OF COLLATERAL; SERVICING.
4.1 Release of Collateral.
Satisfaction of Obligation. If the Obligation is fully
paid and performed and Lender has no further obligation to fund any
Borrowing, Borrowers may -- by written request to Lender -- request that
Lender release the Lender Liens on all of the Collateral, instruct the
Collateral Custodian to return to Borrowers or its designee all
Collateral Documents then held by Collateral Custodian, and execute a
release of any financing statements or other documents filed or recorded
to perfect the Lender Liens.
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4.2 Servicing.
(a) Borrowers shall maintain or cause the servicing of the HELOC
to be maintained in conformity with accepted servicing practices in the
industry and in a manner at least equal in quality to the servicing
Borrowers provide to mortgage loans which they service for their own
account. In the event Borrowers enter into any sub-servicing agreements
(including the Sub- Servicing Agreement), Borrowers shall remain
responsible for servicing of the HELOCs in accordance with the standards
required hereunder.
(b) For each HELOC serviced by Borrowers, Borrowers grant to
Lender a lien and security interest in all servicing rights and records,
including but not limited to 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 HELOC (the "SERVICING
RECORDS") to secure the Obligation. Borrowers covenant to safeguard
such Servicing Records and to deliver them promptly to Lender or its
designee (including the Collateral Custodian) at Lender's request.
(c) Borrowers (i) shall provide a copy of the Sub-Servicing
Agreement or any other sub-servicing agreement to Lender; (ii) shall
provide copies of all reports from time to time required under the
Sub-Servicing Agreement or any other sub-servicing agreement from time
to time entered in replacement thereof to Lender, and (iii) hereby
irrevocably assign to the Lender and Lender's successors and assigns all
right, title interest and the benefits of the Sub-Servicing Agreement
and any other sub-servicing agreement with respect to the HELOCs.
(d) Upon the occurrence of a Default, Lender may, in its sole
discretion, transfer the servicing of the HELOCS to a third party, at no
cost or expense to Lender, it being agreed that Borrowers will pay any
and all fees required to effectuate the transfer of servicing to such
party.
SECTION 5. CONDITIONS PRECEDENT. Lender is not obligated to fund any Borrowing
unless Lender has received all of the documents and items described on SCHEDULE
5. In addition, Lender is not obligated to fund any Borrowing unless on the
applicable Borrowing Date: (a) Lender has timely received a Borrowing Request;
(b) all of the representations and warranties of Borrowers in the Loan Documents
are true and correct in all material respects; (c) no Default exists; (d) the
funding of the Borrowing is permitted by Law and is in compliance with the
limitations set forth in SECTION 2; (e) all requirements under the Custodial
Agreement and all other Loan Documents related to such Borrowing shall have been
satisfied; and (f) if reasonably requested by Lender, it has received evidence
substantiating any of the matters in the Loan Documents that are necessary to
enable Borrowers, as the case may be, to qualify for the Borrowing. Each
condition precedent in this Agreement (including, without limitation, those on
SCHEDULE 5) is material to the transactions contemplated by this Agreement, and
time is of the essence with respect to each. Lender may, in its sole discretion,
fund any Borrowing without all conditions being satisfied. However, to the
extent lawful, that funding is not a waiver of the requirement that each
condition precedent be satisfied as a prerequisite for any subsequent funding,
unless Lender specifically waives an item in writing.
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SECTION 6. REPRESENTATIONS AND WARRANTIES. As of the date hereof and each
Borrowing, Borrowers jointly and severally represent and warrant to Lender as
follows:
6.1 Purpose of Credit. Borrowings are to be used as stated in the
recitals of this Agreement. No Borrower is engaged principally (or as one of its
important activities) in the business of extending credit for the purpose of
purchasing or carrying any "margin stock."
6.2 About the Borrowers.
(a) Subsidiaries and Trade Names. Except as described on SCHEDULE
6.2 (i) no Borrower has any Subsidiaries and (ii) no Borrower has used
or transacted business under any other corporate or trade name in the
six-month period preceding the date of this Agreement.
(b) Existence, Qualification, and Compliance. Each Borrower is
duly organized, validly existing, and in good standing under the Laws of
the jurisdiction in which it is incorporated as stated on SCHEDULE 6.2.
Except where failure is not a Material-Adverse Event, each Borrower (i)
is duly qualified to transact business and is in good standing as a
foreign corporation or other entity in each jurisdiction where the
nature and extent of its business and properties require due
qualification and good standing (as described on SCHEDULE 6.2), (ii)
possesses all requisite authority, permits, and power to conduct its
business as is now being -- or is contemplated by this Agreement to be
-- conducted, and (iii) is in compliance with all applicable Laws.
(c) Offices. Each Borrower's chief executive office and other
principal offices are described on SCHEDULE 6.2. The present and
foreseeable location of each Borrower's books and records concerning
accounts and accounts receivable is at its chief executive office, and
all of its books, and records are in its possession.
6.3 Authorization and Contravention. The execution and delivery by each
Borrower of each Loan Document to which it is a party and the performance by it
of its related obligations (a) are within its corporate power, (b) have been
duly authorized by all necessary corporate action, (c) except for any action or
filing that has been taken or made on or before the date of this Agreement,
require no action by or filing with any Tribunal, (d) do not violate any
provision of its articles of incorporation, charter or bylaws, (e) except where
not a Material-Adverse Event, do not violate any provision of Law applicable to
it or any material agreements to which it is a party, and (f) except for Lender
Liens, do not result in the creation or imposition of any Lien on any asset of
any Borrower.
6.4 Binding Effect. Upon execution and delivery by all parties to it,
each Loan Document will constitute a legal and binding obligation of each
Borrower party to it, enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable Debtor Laws and general
principles of equity.
6.5 Fiscal Year. The Borrowers' fiscal years end each December 31.
6.6 Current Financials. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the financial
condition, results of operations, and cash flows of the Borrowers as of, and for
the portion of the fiscal year ending on their date or dates (subject only to
normal
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year-end adjustments). All material liabilities of the Borrowers as of the
date or dates of the Current Financials are reflected in them or notes to
them. Except for transactions directly related to, or specifically contemplated
by, the Loan Documents, no subsequent material adverse changes have occurred in
the financial condition of the Borrowers from that shown in the Current
Financials, nor has any Borrower incurred any subsequent material liability.
6.7 Solvency. On the date of each Borrowing, each Borrower is, and after
giving effect to the requested Borrowing will be, Solvent.
6.8 Litigation. Except as disclosed on SCHEDULE 6.8, (a) no Borrower is
subject to, or aware of the threat of, any Litigation that is reasonably likely
to be determined adversely to it or, if so adversely determined, would be a
Material-Adverse Event, and (b) no outstanding or unpaid judgments against any
Borrower exists.
6.9 Transactions with Affiliates. No Borrower is a party to a material
transaction with any of its Affiliates except (a) transactions in the ordinary
course of business and upon fair and reasonable terms not materially less
favorable than it could obtain or could become entitled to in an arm's-length
transaction with a Person that was not its Affiliate, and (b) transactions
described on SCHEDULE 6.9.
6.10 Taxes. All Tax returns of each Borrower required to be filed have
been filed (or extensions have been granted) before delinquency, except for
returns for which the failure to file is not a Material-Adverse Event, and all
Taxes imposed upon each Borrower that are due and payable have been paid before
delinquency.
6.11 Employee Plans. Except where occurrence or existence is not a
Material-Adverse Event, (a) no Employee Plan has incurred an "accumulated
funding deficiency" (as defined in 'SS' 302 of ERISA or 'SS' 412 of the IRC),
(b) no Borrower has incurred liability under ERISA to the PBGC in connection
with any Employee Plan, (c) no Borrower has withdrawn in whole or in part
from participation in a Multiemployer Plan, (d) no Borrower has engaged in
any "prohibited transaction" (as defined in 'SS' 406 of ERISA or 'SS' 4975 of
the IRC), and (e) no "reportable event" (as defined in 'SS' 4043 of ERISA)
has occurred in respect of any Employee Plan, excluding events for which the
notice requirement is waived under applicable PBGC regulations.
6.12 Property. Each Borrower has good and marketable title to all its
property reflected on the Current Financials except for property that is
obsolete or that has been disposed of in the ordinary course of business or,
after the date of this Agreement, as otherwise permitted by this Agreement.
6.13 Intellectual Property. Each Borrower owns all material licenses,
patents, patent applications, copyrights, service marks, trademarks, trademark
applications, and trade names necessary to continue to conduct its businesses as
presently conducted and proposed to be conducted immediately after the date of
this Agreement. Each Borrower is conducting its business without infringement or
claim of infringement of any license, patent, copyright, service xxxx,
trademark, trade name, trade secret, or other intellectual property right of
others, other than any infringements or claims that, if successfully asserted
against or determined adversely to any Borrower, are not a Material-Adverse
Event. No Borrower has knowledge of any infringement or claim of infringement by
others of any material license, patent, copyright, service xxxx, trademark,
trade name, trade secret, or other intellectual property of Borrower.
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6.14 Environmental Matters. Except where not a Material-Adverse Event,
no Borrower (a) knows of any environmental condition or circumstance adversely
affecting any Borrower's properties or operations or any material portion of the
properties underlying the Collateral, (b) has received any report of any
Borrower's violation of any Environmental Law, or (c) knows that any Borrower is
under any obligation to remedy any violation of any Environmental Law. Each
Borrower has taken prudent steps to determine that its properties and operations
and that substantially all of the properties underlying the Collateral do not
violate any Environmental Law except violations that are not a Material-Adverse
Event.
6.15 Government Regulations.
(a) Inapplicable Regulations. No Borrower is subject to
regulation under the Investment Borrower Act of 1940, as amended, or the
Public Utility Holding Borrower Act of 1935, as amended.
(b) Borrowers' Eligibility. Each Borrower is approved and
qualified and in good standing as an issuer, mortgagee, or
seller/Sub-Servicer, and meets all requirements applicable to its status
as such, including, without limitation all necessary governmental and
third-party approvals in connection with the HELOCs and the financing
provided by Lender shall have been obtained and remain in effect.
6.16 Insurance. Each Borrower maintains with financially sound,
responsible, and reputable insurance companies or associations (or, as to
workers' compensation or similar insurance, with an insurance fund or by
self-insurance authorized by the jurisdictions in which it operates) insurance
concerning its properties and businesses against casualties and contingencies
and of types and in amounts (and with co-insurance and deductibles) as is
customary in the case of similar businesses.
6.17 Full Disclosure. Each material fact or condition relating to the
Loan Documents or the financial condition, business, or property of the
Borrowers that is a Material-Adverse Event has been disclosed in writing to
Lender. All information previously furnished by any Borrower to Lender in
connection with the Loan Documents was -- and all information furnished in the
future by any Borrower to Lender will be -- true and accurate in all material
respects or based on reasonable estimates on the date the information is stated
or certified.
6.18 Collateral. As of the date of each Borrowing.
(a) Borrowers are the lawful owners of, and have good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except any lien or security interest granted pursuant
hereto.
(b) with respect to each HELOC (i) it has been duly executed by
the parties thereto and constitutes a valid and binding obligation
enforceable in accordance with its terms, (ii) it is not delinquent or
otherwise in default, (iii) it complies with the Underwriting
Guidelines, (iv) the Collateral File (as defined in the Custodial
Agreement) related thereto includes each document required to be
delivered under EXHIBIT E to the Custodial Agreement, and (v) it is, and
all associated advances thereunder are, in full compliance with all
applicable requirements of law.
(c) Lender has a valid and perfected first priority security
interest in the Collateral.
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6.19 Conflicts. There shall not exist any judgment, order, injunction or
other restraint prohibiting or, in the reasonable judgment of Lender, imposing
materially adverse conditions upon the consummation of the financing.
SECTION 7. AFFIRMATIVE COVENANTS. Until the commitment by Lender to extend
credit under this Agreement has been canceled or terminated and the Obligation
is fully paid and performed, Borrowers jointly and severally covenant and agree
with Lender as follows:
7.1 Reporting Requirements. Borrowers shall cause to be furnished to
Lender (except as otherwise required below) the following, all in form and
detail reasonably satisfactory to Lender:
(a) Annual Financials. Promptly when available but at least
within 90 days after each fiscal-year end of Borrowers (except as may be
extended in accordance with regulations adopted by the Securities and
Exchange Commission), the consolidated Financials of the Borrowers as of
that year end, each reflecting the corresponding figures for the
preceding fiscal year in comparative form, accompanied by (i) the
related report prepared by independent certified public accountants
acceptable to Lender and stating that those statements were prepared in
accordance with GAAP applied on a basis consistent with prior periods
except for such changes in GAAP concurred in by Borrowers' independent
public accountants, and (ii) a Compliance Certificate.
(b) Quarterly Financials. Promptly when available but at least
within 45 days after the last day of each Calendar Quarter (except as
may be extended in accordance with regulations adopted by the Securities
and Exchange Commission), the consolidated Financials of the Borrowers
as of the end of that Calendar Quarter, accompanied by a Compliance
Certificate.
(c) Notices. Notice, promptly after any Borrower knows or has
reason to know, of (i) the existence and status of any Litigation that,
if determined adversely to any Borrower, would be a Material-Adverse
Event, (ii) any change in any material fact or circumstance represented
or warranted by any Borrower in any Loan Document that constitutes a
Material-Adverse Event, (iii) the receipt by any Borrower of notice of
any violation or alleged violation of ERISA or any Environmental Law or
other Law if that violation is a Material-Adverse Event, or (iv) a
Default or Potential Default specifying the nature thereof and what
action the Borrowers have taken, are taking, or propose to take with
respect to it.
(d) Additional Reports. Furnish to Lender, upon request, copies
of the reports furnished to Borrowers under the Custodial Agreement and
the Liquidity Agreement not otherwise required to be delivered to
Lender, and such other reports as Lender may from time to time request
in form reasonably satisfactory to Lender.
(e) Other Information. Promptly upon reasonable request by
Lender, information (not otherwise required to be furnished under the
Loan Documents) respecting the business affairs, assets, and liabilities
of any Borrower and opinions, certifications, and documents in addition
to those mentioned in this Agreement.
7.2 Use of Proceeds. Borrowers shall use the proceeds of Borrowings only
for the purposes stated in SECTION 6.1 of this Agreement.
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7.3 Books and Records. Each Borrower shall maintain books, records, and
accounts necessary to prepare Financials in accordance with GAAP.
7.4 Inspections. Upon reasonable request, each Borrower shall allow
Lender or its Representatives to inspect any of its properties, to review
reports, files, and other records in connection with the HELOCs and to make and
take away copies of such reports, files, and other records, to conduct tests or
investigations in connection with the HELOCs, and to discuss any of its affairs,
conditions, and finances with its directors, officers, employees,
representatives, or accountants from time to time during reasonable business
hours.
7.5 Taxes. Each Borrower shall promptly pay when due any and all Taxes
other than Taxes of which the failure to pay is not a Material-Adverse Event or
which are being contested in good faith by lawful proceedings diligently
conducted, against which reserve or other provision required by GAAP has been
made, and in respect of which levy and execution of any Lien have been and
continue to be stayed.
7.6 Expenses. Borrowers shall pay (a) all reasonable legal fees and
expenses incurred by Lender in connection with the preparation, negotiation, and
execution of the Loan Documents, (b) all reasonable legal fees and expenses
incurred by Lender in connection with each separate future amendment, consent,
waiver, or approval executed in connection with any Loan Document, (c) all fees,
charges, or Taxes for the recording or filing of any Loan Document to create or
perfect Lender Liens, (d) all other reasonable out-of-pocket expenses of Lender
in connection with the preparation, negotiation, execution, or administration of
the Loan Documents -- including, without limitation, courier expenses incurred
in connection with the Collateral, (e) all amounts expended, advanced, or
incurred by Lender to satisfy any obligation of any Borrower under any Loan
Document, to collect the Obligation, or to enforce the Rights of Lender under
any Loan Document -- including, without limitation, all court costs, attorneys'
fees (whether for trial, appeal, other proceedings, or otherwise), fees of
auditors and accountants, and investigation expenses reasonably incurred by
Lender in connection with any such matters, (f) interest at an annual interest
rate equal to the Default Rate on each item specified in CLAUSES (a) through (e)
above from 30 days after the date of written demand or request for reimbursement
to the date of reimbursement, and (g) any and all stamp and other Taxes payable
or determined to be payable in connection with the execution, delivery, or
recordation of any Loan Document -- IN CONNECTION WITH WHICH BORROWERS SHALL
INDEMNIFY AND SAVE LENDER HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES WITH
RESPECT TO OR RESULTING FROM ANY DELAY IN PAYING OR OMISSION TO PAY THOSE TAXES
TO THE EXTENT THOSE LIABILITIES ARISE SOLELY BECAUSE BORROWERS FAILED TO PAY THE
TAXES UPON DEMAND BY LENDER, WHICH INDEMNITY SURVIVES THE PAYMENT AND
PERFORMANCE OF THE OBLIGATION AND TERMINATION OF THE LOAN DOCUMENTS.
7.7 Maintenance of Existence, Assets, and Business. Each Borrower shall
(a) except as permitted by SECTION 8.3, maintain its corporate existence and
good standing in its state of incorporation and its authority to transact
business in all other states where failure to maintain its authority to transact
business is a Material-Adverse Event, and (b) maintain all licenses, permits,
and franchises necessary for its business where failure to do so is a
Material-Adverse Event -- including, without limitation, each Borrowers's
eligibility as a lender, seller/servicer, and issuer.
7.8 Insurance. Each Borrower shall (a) maintain with financially sound
and reputable insurers, insurance with respect to its assets and business
against such liabilities, casualties, risks, and contingencies and in such types
and amounts -- including, without limitation, a fidelity bond or bonds in form
and with coverage, with a Borrower, and with respect to such individuals or
groups of individuals -- as is customary
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in the case of Persons engaged in the same or similar businesses and similarly
situated, and (b) upon Lender's request, furnish to Lender from time to time
(i) a summary of its insurance coverage in form and substance satisfactory to
Lender, and (ii) originals or copies of the applicable policies.
7.9 INDEMNIFICATION. IN CONSIDERATION OF THE COMMITMENTS BY LENDER UNDER
THE LOAN DOCUMENTS, BORROWERS SHALL INDEMNIFY AND DEFEND LENDER AND ITS
AFFILIATES AND REPRESENTATIVES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") -- AND
DEFEND THEM, WHETHER OR NOT THEY ARE A PARTY TO SUCH INVESTIGATION, LITIGATION,
OR PROCEEDING, AND HOLD EACH OF THEM HARMLESS -- AGAINST ANY AND ALL LOSSES,
LIABILITIES, CLAIMS, DAMAGES, DEFICIENCIES, INTEREST, JUDGMENTS, COSTS, AND
EXPENSES -- INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
EXPENSES -- INCURRED BY ANY OF THEM ARISING FROM OR BECAUSE OF (a) ANY
INVESTIGATION, LITIGATION, OR OTHER PROCEEDING BROUGHT OR THREATENED IN
CONNECTION WITH ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THE LOAN
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY USE BY ANY BORROWER OF THE
PROCEEDS OF BORROWINGS, (b) ANY IMPOUNDMENT, ATTACHMENT, OR RETENTION OF ANY
COLLATERAL, (c) ANY ALLEGED VIOLATION OF ANY FEDERAL OR STATE LAW RELATING TO
USURY IN CONNECTION WITH ANY COLLATERAL, AND (d) ANY REPRESENTATION MADE BY
ANY BORROWER UNDER ANY LOAN DOCUMENT. ALTHOUGH EACH INDEMNIFIED PARTY IS
ENTITLED TO INDEMNIFICATION FOR ANY INDEMNIFIED PARTY'S ORDINARY NEGLIGENCE,
NO INDEMNIFIED PARTY IS ENTITLED TO INDEMNIFICATION FOR ITS OWN GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. THIS INDEMNITY SURVIVES THE PAYMENT AND PERFORMANCE OF
THE OBLIGATION AND TERMINATION OF THE LOAN DOCUMENTS.
7.10 Management. Borrowers shall give Lender prompt notice of (a) all
senior management changes and (b) any substantial material change in any
Borrower's management structure.
7.11 Records. Borrowers shall maintain complete and accurate records and
files pertaining to each HELOC delivered to Collateral Custodian, and retain
such records and files together with any HELOC loan documents in their
restricted access secure facilities reasonably safe from loss or destruction.
7.12 Collection Efforts. Borrowers will exercise collection efforts with
respect to each HELOC as is consistent with sound business practice and shall be
responsible for collections on each delinquent HELOC.
7.13 Servicing. Borrowers shall service each HELOC in accordance with
the standards set forth in this Agreement.
SECTION 8. NEGATIVE COVENANTS. Until all commitments by Lenders to extend credit
under this Agreement have been canceled or terminated and the Obligation is
fully paid and performed, Borrowers jointly and severally covenant and agree
with Lender as follows:
8.1 Debt. No Borrower may directly or indirectly create, incur, or
suffer to exist (a) any Debt except Permitted Debt.
8.2 Liens. No Borrower may directly or indirectly create or incur any
Lien on the Collateral except Liens in favor of Lender.
8.3 Merger or Consolidation. No Borrower may directly or indirectly
merge or consolidate with or into any other Person except that any Borrower may
merge into or be consolidated with any other
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entity so long as any Borrower involved is the surviving corporation and such
merger or consolidation does not create a Material-Adverse Event.
8.4 Liquidations and Dispositions of Assets. No Borrower may directly or
indirectly dissolve or liquidate or sell, transfer, lease, or otherwise dispose
of (i) any material portion of its assets or business except for sales or other
dispositions by any Borrower in the ordinary course of business subject to
SECTION 4, or (ii) Collateral.
8.5 Use of Proceeds. Borrowers may not directly or indirectly use the
proceeds of Borrowings for any purpose other than as represented in this
Agreement.
8.6 Compliance with Laws and Documents. No Borrower may directly or
indirectly (a) violate the provisions of any Laws applicable to it or of any
Material Agreement to which it is a party if that violation alone or with all
other violations is a Material-Adverse Event or (b) violate the provisions
of its articles of incorporation, charter or bylaws or repeal, replace or amend
any provision of its articles of incorporation, charter or bylaws if any such
action is a Material-Adverse Event.
8.7 Assignment. No Borrower may directly or indirectly assign or
transfer any of its Rights, interests, duties, or obligations under any of the
Loan Documents or in any of the HELOCs.
8.8 HELOCs. No Borrower may originate or acquire any home equity lines
of credit except with the proceeds of a Borrowing unless Lender has otherwise
permitted in writing.
8.9 Delinquent HELOCs. Delinquent HELOCs, for any period of 15
consecutive days, represent more than 12.5% of the HELOCs.
SECTION 9. DEFAULTS AND REMEDIES.
9.1 Default. The term "DEFAULT" means the existence or occurrence of any
one or more of the following:
(a) Obligation. Borrowers fail to pay the Obligation in whole or
in part or the full amount of any interest thereon when due under the
Loan Documents.
(b) Covenants. Any Borrower fails to punctually and properly
perform, observe, and comply with any (i) any covenant, agreement, or
condition under SECTION 7 or 8, (ii) any covenant, agreement, or
condition contained in any of the Loan Documents -- other than covenants
to pay the Obligation and the covenants listed in CLAUSE (I) above --
and that failure continues for a period of five (5) calendar days after
any Borrower has, or, with the exercise of reasonable investigation,
should have, notice of it, or (iii) any event of default occurs and is
continuing under any other document or agreement between Borrower and
Lender.
(c) Misrepresentation. Any material statement, warranty, or
representation by or on behalf of any Borrower in any Loan Document or
other writing authored by or on behalf of any Borrower and furnished in
connection with the Loan Documents, proves to have been incorrect or
misleading in any material respect as of the date made or deemed made.
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(d) Debtor Law. Any Borrower (i) is not Solvent, (ii) fails to
pay its Debts generally as they become due, (iii) voluntarily seeks,
consents to, or acquiesces in the benefit of any Debtor Law, or (iv)
becomes a party to or is made the subject of any proceeding provided for
by any Debtor Law -- other than as a creditor or claimant -- that could
suspend or otherwise adversely affect the Rights of Lender granted in
the Loan Documents unless, if the proceeding is involuntary, the
applicable petition is dismissed within 60 days after its filing.
(e) Other Debt. Any Borrower fails to make any payment due on any
Debt of at least $250,000 or security (with respect to which any
Borrower has redemption, sinking fund, or other purchase obligations) or
any event occurs or any condition exists in respect of any Debt or
security of any Borrower, the effect of which is (i) to cause or to
permit any holder of that Debt or security or a trustee to cause
(whether or not it elects to cause) any of that Debt or security to
become due before its stated maturity or its regularly scheduled payment
dates, or (ii) to permit a trustee or the holder of any security (other
than common stock of any Borrower) to elect (whether or not it does
elect) a majority of the directors on the board of directors of that
Borrower.
(f) Judgments. A judgment by any competent court in the United
States of America for the payment of money in an amount of at least
$100,000 is rendered against any Borrower, and the same remains
undischarged or unpaid for a period of sixty (60) days during which
execution of such judgment is not effectively stayed.
(g) Attachments. The failure to have discharged within a period
of 30 days after the commencement of any attachment, sequestration, or
similar proceeding against any of the assets of any Borrower.
(h) Unenforceability. Any material provision of any Loan Document
for any reason ceases to be in full force and effect or is fully or
partially declared null and void or unenforceable or the validity or
enforceability of any Loan Document is challenged or denied by any
Borrower.
(i) Change of Control. Either (i) any material change in the
management of any Borrower from that management as it exists on the date
of this Agreement, (ii) failure to provide advance notice of any
material change in management, or (iii) any change in the majority
ownership or control of any Borrower from that ownership or control as
it exists on the date of this Agreement.
(j) Material Adverse Change. Any material adverse change in the
condition (financial or otherwise) of the Borrowers or their
Subsidiaries, whether shown on the financials delivered under SECTION
7.1, or otherwise.
9.2 Remedies.
(a) Debtor Law. Upon the occurrence of a Default under SECTION
9.1(d), the commitment of Lender to extend credit under this agreement
automatically terminates and the full Obligation is automatically due
and payable, without presentment, demand, notice of default, notice of
the intent to accelerate, notice of acceleration, or other requirements
of any kind, all of which are expressly waived by Borrowers.
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(b) Other Defaults. While a Default exists -- other than those
described in CLAUSE (a) above -- Lender may declare the Obligation to be
immediately due and payable, whereupon it shall be due and payable and
the commitment of Lender to extend credit under this Agreement is then
automatically terminated.
(c) Other Remedies. Following the termination of the commitment
of Lender to extend credit under this Agreement and the acceleration of
the Obligation, Lender may do any one or more of the following: reduce
any claim to judgment; foreclose upon or otherwise enforce any Lender
Liens; and exercise any other Rights in the Loan Documents, at Law, in
equity, or otherwise that Lender may elect.
9.3 Right of Offset. Borrowers hereby grant to Lender a right of offset,
to secure the repayment of the Obligation, upon any and all monies, securities,
or other property of Borrowers, and the proceeds therefrom now or hereafter held
or received by or in transit to Lender from or for the account of Borrowers,
whether for safekeeping, custody, pledge, transmission, collection, or
otherwise, and also upon any and all deposits (general or special,
time or demand, provisional or final) and credits of Borrowers, and any
and all claims of Borrowers against Lender at any time existing. Upon the
occurrence of any Default, Lender is authorized at any time and from time to
time, without notice to any Borrower, to offset, appropriate, and apply any and
all of those items against the Obligation, subject to SECTION 3.6.
Notwithstanding anything in this section or elsewhere in this Agreement to the
contrary, Lender shall not have any right to offset, appropriate, or apply any
accounts of Borrowers which consist of escrowed funds (except and to the extent
of any beneficial interest which Borrowers have in such escrowed funds) which
have been so identified by any Borrower in writing at the time of deposit
thereof.
9.4 Waivers. Borrowers waive any right to require Lender to (a) proceed
against any Person, (b) proceed against or exhaust any of the Collateral or
pursue its Rights and remedies as against the Collateral in any particular
order, or (c) pursue any other remedy in its power. Lender shall not be required
to take any steps necessary to preserve any Rights of any Borrower against any
Person from which any Borrower purchased any Collateral or to preserve Rights
against prior parties. Borrowers and each surety, endorser, guarantor, pledgor,
and other party ever liable or whose property is ever liable for payment of any
of the Obligation jointly and severally waive presentment and demand for
payment, protest, notice of intention to accelerate, notice of acceleration, and
notice of protest and nonpayment, and agree that their or their property's
liability with respect to the Obligation, or any part thereof, shall not be
affected by any renewal or extension in the time of payment of the Obligation,
by any indulgence, or by any release or change in any security for the payment
of the Obligation, and hereby consent to any and all renewals, extensions,
indulgences, releases, or changes, regardless of the number thereof.
9.5 Performance by Lender. Should any covenant, duty, or agreement of
any Borrower fail to be performed in accordance with the terms of this Agreement
or of any document delivered under this Agreement, Lender may, at its option,
after notice to Borrowers, perform, or attempt to perform, such covenant, duty,
or agreement on behalf of that Borrower. In such event, Borrowers shall jointly
and severally, at the request of Lender, promptly pay any amount expended by
Lender in such performance or attempted performance to Lender at its principal
place of business, together with interest thereon at the Default Rate from the
date of such expenditure by Lender until paid. Notwithstanding the foregoing, it
is expressly understood that Lender does not assume and shall never have, except
by express written consent of Lender, any liability or responsibility for the
performance of any duties of any Borrower under this Agreement or under any
other document delivered under this Agreement.
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9.6 No Responsibility. Except in the case of fraud, gross negligence, or
willful misconduct, neither Lender nor any of its officers, directors,
employees, or attorneys shall assume -- or ever have any liability or
responsibility for -- any diminution in the value of the Collateral or any part
of the Collateral.
9.7 No Waiver. The acceptance by Lender at any time and from time to
time of partial payment or performance by any Borrower of any of their
respective obligations under this Agreement or under any Loan Document shall not
be deemed to be a waiver of any Default then existing. No waiver by Lender shall
be deemed to be a waiver of any other then existing or subsequent Default. No
delay or omission by Lender in exercising any right under this Agreement or
under any other document required to be executed under or in connection with
this Agreement shall impair such right or be construed as a waiver thereof or
any acquiescence therein, nor shall any single or partial exercise of any such
right preclude other or further exercise thereof, or the exercise of any other
right under this Agreement or otherwise.
9.8 Cumulative Rights. All Rights available to Lender under this
Agreement or under any other document delivered under this Agreement shall be
cumulative of and in addition to all other Rights granted to Lender at Law or in
equity, whether or not the Note be due and payable and whether or not Lender
shall have instituted any suit for collection, foreclosure, or other action in
connection with this Agreement or any other document delivered under this
Agreement.
9.9 Costs. All court costs, reasonable attorneys' fees, other costs of
collection, and other sums spent by Lender in the exercise of any Right provided
in any Loan Document is payable to Lender on demand, is part of the Obligation,
and bears interest at the Default Rate from the date paid by Lender to the date
repaid by Borrowers.
SECTION 10. MISCELLANEOUS.
10.1 Nonbusiness Days. Any action that is due under any Loan Document on
a non-Business Day may be delayed until the next Business Day. However, interest
accrues on any payment until it is made.
10.2 Communications. Unless otherwise stated, a communication under any
Loan Document to a party to this Agreement must be written to be effective and
is deemed given:
For Borrowing Requests, only when actually received by Lender, as
applicable.
Otherwise, if by fax, when transmitted to the appropriate fax
number -- but, without affecting the date deemed given, the fax
must be promptly confirmed by telephone.
Otherwise, if by mail, on the third Business Day after enclosed
in a properly addressed, stamped, and sealed envelope deposited
in the appropriate official postal service.
Otherwise, when actually delivered.
Until changed by written notice to each other party to this Agreement, the
address and fax number are stated for Borrowers and Lender beside their names on
the signature pages below.
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10.3 Form and Number of Documents. The form, substance, and number of
counterparts of each writing to be furnished under the Loan Documents must be
satisfactory to Lender and its counsel.
10.4 Exceptions to Covenants. An exception to any Loan Document covenant
does not permit violation of any other Loan Document covenant.
10.5 Survival. All Loan Document provisions survive all closings and are
not affected by any investigation made by any party.
10.6 Governing Law. Unless otherwise stated, each Loan Document must be
construed -- and its performance enforced -- under the Laws of the State of New
York and the United States of America.
10.7 Invalid Provisions. If any provision of a Loan Document is
judicially determined to be unenforceable, all other provisions of it remain
enforceable. If the provision determined to be unenforceable is a material part
of that Loan Document, then, to the extent lawful, it shall be replaced by
a judicially-construed provision that is enforceable but otherwise as similar in
substance and content to the original provision as the context of it reasonably
allows.
10.8 Conflicts Between Loan Documents. The provisions of this Agreement
control if in conflict (i.e., the provisions contradict each other as opposed to
a Loan Document containing additional provisions not in conflict) with the
provisions of any other Loan Document.
10.9 Discharge and Certain Reinstatement. Borrowers' obligations under
the Loan Documents remain in full force and effect until Lender has no
commitment to extend credit under the Loan Documents and the Obligation is fully
paid (except for provisions under the Loan Documents which by their terms
expressly survive payment of the Obligation and termination of the Loan
Documents). If any payment under any Loan Document is ever rescinded or must be
restored or returned for any reason, then all Rights and obligations under the
Loan Documents in respect of that payment are automatically reinstated as though
the payment had not been made when due.
10.10 Amendments, Consents, Conflicts, and Waivers. An amendment (which
may be in substantially the form of EXHIBIT F) of -- or an approval, consent, or
waiver by Lender under -- any Loan Document must be in writing executed by
Borrowers and Lender.
No course of dealing or any failure or delay by Lender or any of its
Representatives with respect to exercising any Right of Lender under the Loan
Documents operates as a waiver of that Right. An approval, consent, or waiver is
only effective for the specific instance and purpose for which it is given. The
Loan Documents may only be supplemented by agreements, documents, and
instruments delivered according to their respective express terms.
10.11 Multiple Counterparts. Any Loan Document may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document, and all of those counterparts must be construed together to
constitute the same document; but in making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart. This
Agreement is effective when counterparts of it have been executed and delivered
to Lender.
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10.12 Parties. This Agreement binds and inures to Borrowers, Lender, and
their respective successors and permitted assigns. Only those Persons may rely
upon or raise any defense about this Agreement.
(a) Assignment by Borrowers. No Borrower may assign any Rights or
obligations under any Loan Document without first obtaining the written
consent of Lender.
(b) Assignment by Lender. Lender may assign, pledge, and
otherwise transfer all or any of its Rights and obligations under the
Loan Documents in the ordinary course of its lending business and in
accordance with all Laws, without the consent of any party to this
Agreement. Upon any such assignment or transfer as of the Effective Date
in the assignment documents, then (i) any such assignee shall be for all
purposes a Lender party to -- with all the Rights and obligations of
Lender under -- this Agreement, with a Commitment as stated in the
Assignment, (ii) Lender is released from its obligations under the Loan
Documents to a corresponding extent, (iii) this Agreement is
automatically deemed to reflect the name, address, and Commitment of any
such assignee and the reduced Commitment of Lender, and Lender shall
deliver to Borrowers a written notice reflecting those changes, (iv)
Borrowers shall execute and deliver to each of Lender
and such assignee a Note, each based upon their respective Commitments
following the transfer, (v) upon delivery of the one or more Notes under
CLAUSE (IV) above, Lender shall return to Borrowers the Note previously
delivered to it under this Agreement, and (vi) such assignee is subject
to all the provisions in the Loan Documents.
(c) Otherwise Void. Any purported assignment, pledge, or other
transfer in violation of this section is void from the beginning and not
effective.
10.13 Participations. Lender may at any time sell to one or more Persons
(each a "PARTICIPANT") participating interests in its Commitment and its share
of the Obligation provided that, for each participation (i) Lender's obligations
under the Loan Documents must remain unchanged, (ii) Lender must remain solely
responsible for the performance of those obligations, (iii) Lender must remain
the holder of the Note for all purposes under the Loan Documents, and (iv)
Borrowers may continue to deal solely and directly with Lender in connection
with those Rights and obligations. Lender may obtain for each of its
Participants the benefits of the Loan Documents related to participations in its
share of the Obligation, but Borrowers are never obligated to pay any greater
amount that would be due to Lender under the Loan Documents calculated as though
no participation had been made. Otherwise, Participants have no Rights under the
Loan Documents.
10.14 Jurisdiction; Venue; Service of Process; and Jury Trial. EACH
PARTY, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE CASE OF
EACH BORROWER, FOR EACH OF ITS SUBSIDIARIES), (A) IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK,
AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY NEW YORK LAW, (B) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN
CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BROUGHT IN ANY SUCH COURT,
(C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM,
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(D) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF
PROCESS IN NEW YORK, NEW YORK, IN CONNECTION WITH ANY SUCH LITIGATION
AND TO DELIVER TO LENDER EVIDENCE THEREOF, IF REQUESTED, (E) IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH
HEREIN, (F) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATION SHALL
BE BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND (G) IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED THEREBY. The scope of each of the foregoing
waivers is intended to be all- encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including, without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Borrowers (for themselves
and on behalf of each of their Subsidiaries) and each other party to this
Agreement acknowledge that this waiver is a material inducement to the agreement
of each party hereto to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and each will
continue to rely on each of such waivers in related future dealings. Borrowers
(for themselves and on behalf of each of their Subsidiaries) and each other
party to this Agreement warrant and represent that they have reviewed these
waivers with their legal counsel, and that they knowingly and voluntarily
agree to each such waiver following consultation with legal Counsel. THE
WAIVERS IN THIS SECTION ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY
OTHER LOAN DOCUMENT. In the event of Litigation, this Agreement may be filed
as a written consent to a trial by the court.
10.15 Entire Agreement. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.]
28
EXECUTED as of the date first stated in this Agreement.
BORROWERS:
(address) IMC MORTGAGE COMPANY
IMC Mortgage Company
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name) XXXXXX X. XXXXXXXXX
______________________________
(Title) President
______________________________
(address) INDUSTRY MORTGAGE COMPANY, L.P.,
By: Industry Mortgage Corporation,
its general partner
Industry Mortgage Company, L.P.
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name) XXXXXX X. XXXXXXXXX
______________________________
(Title) President
______________________________
(address) IMC CORPORATION OF AMERICA
IMC Corporation of America
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name) XXXXXX X. XXXXXXXXX
______________________________
(Title) President
______________________________
LENDER:
(address) NOMURA ASSET CAPITAL CORPORATION,
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, By:
Vice President _________________________________
Tel (000) 000-0000 Xxxxxxx X. Xxxxxx, Vice President
Fax (000) 000-0000
SIGNATURE PAGE TO LOAN AGREEMENT
EXECUTED as of the date first stated in this Agreement.
BORROWERS:
(address) IMC MORTGAGE COMPANY
IMC Mortgage Company
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name)
______________________________
(Title)
______________________________
(address) INDUSTRY MORTGAGE COMPANY, L.P.,
By: Industry Mortgage Corporation,
its general partner
Industry Mortgage Company, L.P.
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name)
______________________________
(Title)
______________________________
(address) IMC CORPORATION OF AMERICA
IMC Corporation of America
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxx By
Tel 813/000-0000 _________________________________
Fax 813/000-0000 (Name)
______________________________
(Title)
______________________________
LENDER:
(address) NOMURA ASSET CAPITAL CORPORATION,
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, By: /s/ Xxxxxxx X. Xxxxxx
Vice President _________________________________
Tel (000) 000-0000 Xxxxxxx X. Xxxxxx, Vice President
Fax (000) 000-0000
SIGNATURE PAGE TO LOAN AGREEMENT
SCHEDULE 2.1
UNDERWRITING GUIDELINES
SCHEDULE 2.6
HELOC CHARACTERISTICS
1. Loan Number
2. Primary Borrower First Name
3. Primary Borrower Last Name
4. Primary Borrower Social Security Number
5. Co-Borrower First Name
6. Co-Borrower Last Name
7. Co-Borrower Social Security Number
8. Borrower Self Employed
9. Co-Borrower Self Employed
10. Property Address
11. Property City
12. Property State
13. Property Zip Code
14. Billing Address
15. Billing City
16. Billing State
17. Billing Zip Code
18. Primary Phone No.
19. Secondary Phone No.
20. Lien Position
21. Adjustment Type (ARM)
22. Ownership Type (Fee Simple or Leasehold)
23. Xxxxxxxxxxxx
00. Xxxxxxxxxxxxx Xxxxx (xxxx, XXX, XXX)
00. Property type
26. Purpose
27. Occupancy Status (primary, secondary or investment)
28. Original Rate
29. Actual Gross Rate
30. Original P&I
31. Current P&I
32. Original Balance
33. Actual Balance
34. Maximum Credit Line Balance
35. Current Unsecuritized Credit Line Balance
36. Senior Balance
37. Senior Lien Type
38. Origination/Closing Date
39. First Payment Date
40. Maturity Date
41. Original Term (in months)
42. Amortized Original Term (in months)
43. Balloon Flag
44. Next Payment Due Date
45. Service Fee
46. Maximum Combined LTV - as specified on the UW Cert
47. Current Appraisal
SCHEDULE 2.6
48. Purchase Price
49. Debt Ratio
50. Index Type (Prime)
51. Gross Margin
52. Maximum Rate
53. Minimum Rate
54. Prior Bankruptcy
55. Prior Foreclosure
56. Funding Date by Nomura (Purchase Date)
57. Originator Code
58. IMC Loan Program Code
59. Annual Fee
SCHEDULE 2.6
2
SCHEDULE 5
CLOSING CONDITIONS
Unless otherwise specified, all dated as of the Closing Date or a date
(a "CURRENT DATE") within 30 days before the Closing Date.
H&B [1.] LOAN AGREEMENT dated as of September __, 1996, between Borrowers
and Lender -- all of the terms in which have the same meanings
when used in this schedule -- accompanied by:
Schedule 5 - Closing Conditions
Schedule 2.6 - HELOC Characteristics
Schedule 6.2 - Borrowers
Schedule 6.8 - Litigation and Judgments
Schedule 6.9 - Affiliate Transactions
Exhibit A - Form of Note
Exhibit B-1 - Form of Custodial Agreement
Exhibit B-2 - Form of Liquidity Agreement
Exhibit C-1 - Form of Security Agreement
Exhibit C-2 - Form of Financing Statement
Exhibit D - Form of Borrowing Request
Exhibit E-1 - Form of Opinion of Counsel to Borrowers
Exhibit E-2 - Form of Opinion of Counsel to Custodian
Exhibit F - Form of Amendment
H&B [2.] NOTE in the original principal amount of $100,000,000, executed
by Borrowers, payable to the order of Nomura Asset Capital
Corporation, and in substantially the form of EXHIBIT A to the
Loan Agreement.
H&B [3.] SECURITY AGREEMENT executed by Borrowers as debtor and Lender as
secured party, and in substantially the form of EXHIBIT C-1 to
the Loan Agreement.
H&B [4.] FINANCING STATEMENTS executed by Borrowers as debtor and Lender
as secured party, for filing with the following UCC filing
offices, and in substantially the form of EXHIBIT C-2 to the Loan
Agreement:
NAME JURISDICTION NUMBER DATE
==== ============ ====== =====
IMC Mortgage Company Florida
IMC Corporation of America Delaware
Industry Mortgage Company, L.P. Delaware
H&B [5.] UCC SEARCH REPORTS for financing statements filed against
Borrowers as Debtor with the following UCC filing offices as of
Current Dates:
--------
[ ] indicates items not complete at time of this draft of this schedule,
together with names of parties or counsel with responsibility for each.
SCHEDULE 5
DEBTOR FILE NO. FILE DATE DESCRIPTION
------------------------ ----------------- ---------- -----------------------------
IMC Mortgage Company
IMC Corporation of
America
Industry Mortgage
Company, L.P.
IMC [6.] TERMINATIONS OR AMENDMENTS OF FINANCING STATEMENTS reflected in
the UCC Search Reports described above that, in the judgment of
Lender and its special counsel, conflict with the priority of the
Lender Liens contemplated by the Loan Documents, each executed by
the appropriate secured party and (if necessary) debtor, and in
form acceptable to Agent for filing with the applicable UCC
filing offices: [TO BE DETERMINED].
IMC [7.] CORPORATE CHARTER for IMC Mortgage Company, certified as of a
Current Date, by the Secretary of the State of Florida.
IMC [8.] OFFICERS' CERTIFICATE for IMC Mortgage Company, executed by the
President and Secretary of IMC Mortgage Company as to (a) the due
incumbency of its officers authorized to execute or attest to the
Loan Documents, (b) resolutions duly adopted by its directors
approving and authorizing the execution of the Loan Documents,
(c) its corporate charter, and (d) bylaws, accompanied by:
Exhibit A - Resolutions
Exhibit B - Charter
Exhibit C - Bylaws
IMC [9.] CORPORATE CHARTER for IMC Corporation of America, certified as of
a Current Date, by the Secretary of the State of Delaware.
IMC [10.] OFFICERS' CERTIFICATE for IMC Corporation of America, executed by
the President and Secretary of IMC Corporation of America as to
(a) the due incumbency of its officers authorized to execute or
attest to the Loan Documents, (b) resolutions duly adopted by its
directors approving and authorizing the execution of the Loan
Documents, (c) its corporate charter, and (d) bylaws, accompanied
by:
Exhibit A - Resolutions
Exhibit B - Charter
Exhibit C - Bylaws
IMC [11.] CERTIFICATE OF LIMITED PARTNERSHIP, certified as of a Current
Date, by the Secretary of the State of Delaware for Industry
Mortgage Company, L.P.
IMC [12.] OFFICERS' CERTIFICATE for IMC Mortgage Company, as general
partner of Industry Mortgage Company, L.P., executed by the
President and Secretary of IMC Mortgage Company as to (a) the due
incumbency of its officers authorized to execute or attest to the
Loan Documents, (b) resolutions duly adopted by its directors
approving and authorizing the execution of the Loan Documents,
(c) its corporate charter, and (d) bylaws, accompanied by:
SCHEDULE 5
2
Exhibit A - Resolutions
Exhibit B - Charter
Exhibit C - Bylaws
IMC [13.] CERTIFICATES OF QUALIFICATION, GOOD STANDING, AND AUTHORITY for
Borrowers, issued as of Current Dates by the appropriate
Tribunals for the following jurisdictions:
COMPANY JURISDICTION CERTIFICATE DATE
------- ------------ ----------- ----
IMC Mortgage Company Florida
IMC Corporation of America Delaware
Industry Mortgage Company, L.P Delaware
IMC [14.] OPINION of _________________, as counsel to Borrowers, addressed
to Lender, and in substantially the form of EXHIBIT E-1.
IMC [15.] OPINION of _________________, as counsel to LaSalle National
Bank, in its capacity as Sub-Servicer under the Liquidity
Agreement and the Sub-Servicing Agreement, and in its capacity as
Collateral Custodian under the Custodial Agreement in
substantially the form of EXHIBIT E-2.
H&B [16.] Sub-Servicing Agreement.
H&B [17.] Custodial Agreement.
H&B [18.] Lockbox Agreement.
H&B [19.] Liquidity Agreement.
IMC [20.] Partnership Agreement forming Industry Mortgage Company, L.P.
IMC [21.] Payment of all fees and expenses of Lender, including without
limitation, those of attorneys, Collateral Custodian, and
Sub-Servicer.
22. Such other documents and items as Lender may reasonably request.
SCHEDULE 5
3
SCHEDULE 6.2
COMPANIES
STATE OF STATES QUALIFIED TRADE NAMES STILL USING
INCORPORATION AS FOREIGN USED IN LAST NAME
NAME OWNERSHIP OR ORGANIZATION CORP. FOUR MONTHS Y/N
IMC Mortgage
Company Annex A Florida Annex B IMCC Financial Y
IMC Corporation 100% Industry Mortgage Delaware Annex C Industry Mortgage Y
of America Company, LP Company, LP
Industry Mortgage 99% IMC Mortgage Delaware Annex C Equitystars Y -- Equitystars
Company, LP Company IMCO, Limited N -- IMCO
1% Industry Mortgage Partnership
Corporation
COMPANIES
CHIEF EXECUTIVE OTHER PRINCIPAL
NAME OFFICE OFFICES
IMC Mortgage
Company Tampa, FL Annex D
IMC Corporation Tampa, FL Annex D
of America
Industry Mortgage Tampa, FL Annex D
Company, LP
Schedule 6.2
ANNEX A
PRINCIPAL STOCKHOLDERS
(AS OF 6/25/96)
The following table sets forth certain information regarding the ownership
of the Common Stock after giving effect to the transactions described in the
Reorganization Plan, of: (i) each person known by the Company to own
beneficially five percent or more of the outstanding Common Stock immediately
prior to the Public Offering; (ii) each of the Company's directors; (iii) each
of the executive officers named in the Summary Compensation Table; and (iv) all
directors and executive officers of the Company as a group.
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED PRIOR TO
THE PUBLIC OFFERING THE PUBLIC OFFERING(1)
------------------- ----------------------
PERCENT OF PERCENT OF
NAME OF BENEFICIAL OWNER NUMBER CLASS NUMBER CLASS
-------------------------------------------- --------- ------------------- --------- ----------------------
ContiTrade Services Corporation ............ 1,350,000 17.72% 1,350,000 12.59%
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Branchview, Inc. ........................... 830,928 13.25 830,928 8.87
000 XxXxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
JRJ Associates Inc. ........................ 572,669 9.13 572,669 6.11
00 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, Xxx Xxxxxx 00000
Cityscape Corp. ............................ 545,455 8.70 545,455 5.82
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Mortgage America ........................... 567,226 9.05 567,226 6.05
000 0xx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxx 00000
Investors Mortgage, a Washington LP 494,988 7.89 494,988 5.28
00000 X.X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
American Industrial Loan Association ....... 599,884 9.57 599,884 6.40
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
The Money Store ............................ 381,584 6.09 381,584 4.07
0000 X Xxxxxx, Xxxxx 000X
Xxxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxxxx ............................ 715,175 11.11 715,175 7.50
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxxxx ........................ 188,209 2.96 192,097 2.03
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxxxx ........................... 13,759 0.22 14,037 0.15
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
ANNEX A (CONT.)
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED PRIOR TO
THE PUBLIC OFFERING THE PUBLIC OFFERING(1)
------------------- ----------------------
PERCENT OF PERCENT OF
NAME OF BENEFICIAL OWNER NUMBER CLASS NUMBER CLASS
-------------------------------------------- --------- ------------------- --------- ----------------------
Xxxxx X. XxXxxxxx .......................... 104,733 1.67 104,733 1.12
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxx ......................... 32,962 0.52 33,517 0.36
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Xxxxx XxXxxxxx ............................. 273,412 4.36 273,412 2.92
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx ........................... 576,549 9.19 590,437 6.30
Waterview Corporate Centre
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Xxxxx X. Xxxxx ............................. 3,880 0.06 9,435 0.10
0000 Xxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxxxxx X. Xxxxxx ......................... 22,487 0.36 36,375 0.39
Independent Drive, Suite 3104
Xxxxxxxxxxxx, Xxxxxxx 00000
All directors and executive officers as a
group (13 persons)........................ 1,958,923 29.53 2,011,141 20.66
ANNEX B
IMC Mortgage Company
Foreign Registration/Qualifications
(a Florida domestic)
REGISTRATION D/B/A MORTGAGE LENDER LICENSE
STATE DATE NAME (EXACTLY AS IT READS)
-------------------------------- ------------ -------------------------------- --------------------------------
ALABAMA
ALASKA
ARIZONA
ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE 08/29/96
D.C.
FLORIDA (Domestic) 12/26/95
GEORGIA 08/26/96
HAWAII
IDAHO 08/26/96
ILLINOIS
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
MAINE 07/29/96
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
MONTANA
NEBRASKA
NEVADA
NEW HAMPSHIRE 07/29/95
NEW JERSEY
NEW MEXICO
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
OHIO
OKLAHOMA
OREGON
PENNSYLVANIA
PUERTO RICO
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
XXXXXXXX
XXXXXXXXXX
WEST VIRGINIA
WISCONSIN
WYOMING
** Indicates that the GP's d/b/a is 'Industry Mortgage Corporation, General P
ANNEX C
Industry Mortgage Company, L.P.
Foreign Registration/Qualifications
(GP) (LP)
FOREIGN FOREIGN
STATE CORPORATION PARTNERSHIP
ALABAMA 04/18/94
ALASKA 04/18/94
ARIZONA 10/21/93
ARKANSAS N/A
CALIFORNIA 10/25/93
COLORADO 10/05/93
CONNECTICUT 10/02/93
DELAWARE 05/12/93 07/01/93
D.C. 04/22/94 04/22/94
FLORIDA 09/24/93 09/24/93
GEORGIA *10/21/93* 10/04/93
HAWAII 05/12/94 05/02/94
IDAHO 10/14/93
ILLINOIS 11/15/93 11/02/93
INDIANA 10/04/93
IOWA 10/12/93
KANSAS 04/21/94
KENTUCKY 10/13/93
LOUISIANA 04/18/94
MAINE 10/12/93
MARYLAND 09/27/93 09/27/93
MASSACHUSETTS 10/01/93 10/06/93
MICHIGAN 10/08/93 10/08/93
MINNESOTA 10/12/93
MISSISSIPPI 04/18/94 04/25/94
MISSOURI 10/12/93
MONTANA 05/02/94 05/02/94
NEBRASKA 04/22/94
NEVADA 10/26/93
NEW HAMPSHIRE 10/11/93
NEW JERSEY 10/01/93
NEW MEXICO 10/29/93
NEW YORK 12/28/93
NORTH CAROLINA *09/28/93* 10/11/93
NORTH DAKOTA 04/25/94 06/13/94
OHIO 10/04/93 10/04/93
OKLAHOMA 01/18/94
OREGON 10/20/93 10/20/93
PENNSYLVANIA 10/01/93
RHODE ISLAND 10/12/93
SOUTH CAROLINA 05/23/94 04/18/94
SOUTH DAKOTA 04/18/94 04/18/94
TENNESSEE 10/04/93
TEXAS 01/11/94
UTAH 02/07/94 02/07/94
VERMONT 10/12/93 10/12/93
VIRGINIA 09/29/93 09/29/93
WASHINGTON 10/01/93
WEST VIRGINIA 07/28/95 07/01/93
WISCONSIN *03/10/94* 10/20/93
WYOMING 04/18/94 01/23/95
IMC Corporation of America
DATE FOREIGN
OF OR
STATE QUALIFICATION DOMESTIC
DELAWARE 09/09/94 Domestic
CALIFORNIA 07/28/95 Foreign
CALIFORNIA 07/28/95 Foreign
PENNSYLVANIA 09/28/94 Foreign
OHIO 10/13/95 Foreign
KANSAS 10/13/95 Foreign
ARIZONA 05/14/96 Foreign
ANNEX D
Industry Mortgage Company, LP
Full Service Offices
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx #000
Xxxxx, XX 00000
000 Xxxxxxxx Xxxxxx, Xxxxx #000
Xxxxxxxxxx, XX 00000
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx #000
Xx. Xxxxxxxxxx, XX 00000
0000 Xxxxx Xxx. Xxxxx, Xxxxx #000
Xxxxxx Xxxx, XX 00000
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
SCHEDULE 6.8
LITIGATION AND JUDGMENTS
NONE
SCHEDULE 6.8
SCHEDULE 6.9
AFFILIATE TRANSACTIONS
NONE
SCHEDULE 6.9
