Execution Copy
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of October 12, 1998, between IMC
MORTGAGE COMPANY, a Florida corporation (the "Company"), GREENWICH STREET
CAPITAL PARTNERS II, L.P., a Delaware limited partnership, GREENWICH FUND, L.P.,
a Delaware limited partnership, GSCP OFFSHORE FUND, L.P., a Cayman Islands
exempted limited partnership (each a "Facility Lender" and collectively, the
"Facility Lenders"), and BEAR XXXXXXX HOME EQUITY TRUST ("BSTrust"), BEAR,
XXXXXXX INTERNATIONAL LIMITED ("BSIL"), and any of their affiliates which are or
become party to the Institutional Account Agreement (as hereinafter defined).
BSTrust, BSIL and any such affiliates are referred to herein collectively as
"Bear Xxxxxxx". Capitalized terms used in this Agreement without definition have
the meanings given to them in the Loan Agreement (as hereinafter defined) as
such terms are defined in the Loan Agreement on the date hereof.
RECITALS
A. The Company intends to enter into a Loan Agreement, dated as of
October 12, 1998 (as the same may be modified, supplemented or restated from
time to time, the "Loan Agreement"), between the Company, as borrower, and the
Facility Lenders, pursuant to which the Facility Lenders will agree to extend to
the Company Commitments to loan, in the aggregate, $33,000,000 (the "Loans"),
subject to the terms and conditions set forth in the Loan Agreement, which Loans
are evidenced by the Notes and entitled to the benefit of certain guarantees and
security-y provided under certain of the other Loan Documents.
B. Pursuant to (a) a Master Repurchase Agreement, dated as of March 29,
1996, as amended from time to time, by and among BSTrust, the Company and
certain of the Company's Subsidiaries (the "Whole Loan Repurchase Agreement"),
and other related agreements with BSTrust (collectively with the Whole Loan
Repurchase Agreement, the "Whole Loan Repurchase Documents"); (b) the Master
Repurchase Agreement, dated as of May 1, 1997, as amended from time to time
(together with annexes, confirmations and transactions thereunder, collectively
the "Residuals Repurchase Agreement") between BSIL and Industry Mortgage
Company, L.P., the predecessor to the Company ("IMCLP"); and (c) the
Institutional Account Agreement, dated October 23, 1996, as amended from to
time, between and among IMCLP and Bear Xxxxxxx (the "Institutional Account
Agreement"; and together with the Whole Loan Repurchase Agreement, the Whole
Loan Repurchase Documents and the Residuals Repurchase Agreement, collectively,
the "Existing Agreements"), BSTrust and BSIL
have entered into transactions with the Company from time to time, pursuant to
which the Company has sold mortgage loans to BSTrust and securities to BSIL, in
each case subject to an obligation to repurchase such assets and for other
purposes provided therein; and the Company and certain of its Subsidiaries have
granted to BSTrust and BSIL a security interest in the Collateral (as
hereinafter defined) in order to secure the respective obligations of the
Company and the Subsidiaries under the Existing Agreements (the "Existing
Obligations").
C. In order to induce the Facility Lenders to enter into the Loan
Agreement, the Facility Lenders, the Company, and Bear Xxxxxxx have agreed to
enter into this Agreement (the "Intercreditor Agreement"), whereby Bear Xxxxxxx
will agree, subject to the terms and conditions of this Agreement, (i) to
refrain from exercising certain rights and remedies it has under the Existing
Agreements for a period of 45 days and, in certain events, 90 days, (ii) to
acknowledge and consent to the creation of a junior lien on the Collateral, and
(iii) to agree that following payment in full of the obligations under the
Existing Agreements, Bear Xxxxxxx will hold the Collateral for the benefit of
the Facility Lenders or, if the Collateral held is subject to any other prior
liens of any other creditor, for the benefit of such other creditor.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, Bear Xxxxxxx and the
Facility Lenders agree as follows:
Section 1. Standstill. (a) Each of the Facility Lenders and Bear
Xxxxxxx agrees, subject to the terms of this Agreement, that for the Standstill
Period, it shall not:
(i) file or join in the filing of any involuntary petition in
bankruptcy with respect to the Company or its Subsidiaries, or initiate
or participate in any similar proceedings for the benefit of creditors,
including any proceeding for the appointment of a trustee, receiver,
conservator or liquidator of the Company or its Subsidiaries or any
portion of its assets;
(ii) seek to collect or enforce by litigation or otherwise,
any repurchase or payment obligations under the Existing Agreements or
the Loan Documents; provided that nothing in this Section 1 shall
prohibit the Facility Lenders from exercising their Exchange Option;
(iii) make any Margin Calls or other demands for payment in
respect of, or additional collateral to secure, the Existing
Obligations; provided, however,
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that this clause shall not adversely affect the right of Bear Xxxxxxx
to take any actions to preserve, protect or perfect its liens in the
Collateral;
(iv) declare a default or event of default under, or exercise
or enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Agreement or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any
of the Collateral.
(b) The Standstill Period may be terminated by Bear Xxxxxxx or
the Facility Lenders by written notice to the Company and each other Creditor
upon the occurrence of any of the following:
(i) a failure by the Company under the Existing
Agreements to make to Bear Xxxxxxx any scheduled payment of interest,
which failure continues unremedied for two days, or any payment of
principal due in respect of payoffs or prepayments of mortgage loans
comprising any portion of the Collateral;
(ii) any intentional fraud or misrepresentation by
the Company;
(iii) immediately upon a failure of the Facility
Lenders to make an Advance (as defined in the Loan Agreement) under the
Loan Agreement following a request of the Company thereunder;
(iv) immediately in the event any Other Existing
Lender takes any of the actions described in Section 1(a) of its Other
Intercreditor Agreement, whether or not it shall have given notice of
termination of the Standstill Period;
(v) the Company shall not have entered into the Loan
Agreement in substantially similar form to the October 13 draft
thereof, at or before 12:00 noon, New York City time, on October 14,
1998;
(vi) the conditions to the obligations of the
Facility Lenders to fund the Initial Advance shall not have been
satisfied or waived by the Facility Lenders and the Facility Lenders,
if requested by the Company to fund the Initial Advance, shall not have
funded the Initial Advance at or before 12:00 noon, New York City time,
on October 14, 1998;
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(vii) the Company shall not have delivered (by
facsimile transmission or otherwise in accordance with Section 16
hereof) to each Creditor a forbearance agreement of BankBoston at or
before 12:00 noon, New York City time, on October 14, 1998, which is
satisfactory in substance and form to each Creditor.
(viii) the condition contained in clause (y) of the
definition of "Standstill Period" to the extension of the Standstill
Period beyond the date which is 45 days from and after the date hereof
shall not have been satisfied on or before such date;
(ix) a Change of Control or payment of the Take-Out
Premium and
(x) an event shall occur and be continuing for a
period of ten Business Days which permits any holder of indebtedness
for borrowed money of the Company or any Subsidiary outstanding (other
than any Creditor) to accelerate the maturity of such indebtedness or
exercise remedies with respect to property of the Company or any
Subsidiary, without such indebtedness being paid or the rights of such
holder to take such action being waived, stayed or subjected to a
standstill or other agreement of such holder to forbear from exercising
remedies, reasonably satisfactory to the Creditors;
(c) The Standstill Period shall terminate automatically
without notice or other action by any Creditor upon the occurrence of any of the
following:
(i) the Company or any Subsidiary shall consent to
the appoint ment of or taking possession by a receiver, assignee,
custodian, sequestrator, trustee or liquidator (or other similar
official) of itself or of a substantial part of its property; or the
Company or any Subsidiary shall admit in writing (to any creditor,
governmental authority or judicial court or tribunal) its inability to
pay its debts generally as they come due or shall fail generally to pay
its debts as they become due, or shall make a general assignment for
the benefit of its creditors; or the Company or any Subsidiary shall
file a voluntary petition in bankruptcy or a voluntary petition or
answer seeking liquidation, reorganization or other relief with respect
to itself or its debts under the Federal bankruptcy laws, as now or
hereafter constituted or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or shall consent to the
entry of an order for relief in an involuntary case under any such law;
or the Company or any Subsidiary shall file an answer admitting the
material allegations of a petition filed against
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the Company in any such proceeding, or otherwise seek relief under the
provisions of any existing or future Federal or State bankruptcy,
insolvency or other similar law providing for the reorganization or
winding-up of corporations, or providing for an arrangement, agreement,
composition, extension or adjustment with its creditors; or the Company
or any Subsidiary shall take or publicly announce its intention to take
corporate action in furtherance of any of the foregoing; or
(ii) an order, judgment or decree shall be entered in
any proceeding by any court of competent jurisdiction appointing,
without the consent of the Company, a receiver, trustee or liquidator
of the Company or any Subsidiary or of any substantial part of its
property, or any substantial part of the property of the Company or any
Subsidiary shall be sequestered, and any such order, judgment or decree
of appointment or sequestration shall remain in force undismissed,
unstayed or unvacated for a period of 30 days after the date of entry
thereof; or
(iii) an involuntary petition against the Company or
any Subsidiary in a proceeding under the Federal bankruptcy laws or
other insolvency laws, as now or hereafter in effect, shall be filed
and shall not be withdrawn or dismissed within 30 days thereafter, or a
decree or order for relief in respect of the Company or any Subsidiary
shall be entered by a court of competent jurisdiction in an involuntary
case under the Federal bankruptcy laws, as now or hereafter
constituted, or, under the provisions of any law providing for
reorganization or winding-up of corporations which may apply to the
Company, any court of competent jurisdiction shall assume jurisdiction,
custody or control of the Company or any Subsidiary or of any
substantial part of its property and such jurisdiction, custody or
control shall remain in force unrelinquished, unstayed or unterminated
for a period of 30 days.
Section 2. Grant of Security Interest. (a) In order to secure full and
timely payment of the Obligations under the Loan Agreement, and to secure the
performance of all of the other obligations of the Company under the Loan
Documents, the Company and each Subsidiary hereby mortgages, pledges and assigns
and transfers to the Facility Lenders, and grants to the Facility Lenders, a
continuing perfected security interest in, and a lien in the Collateral. The
Facility Lenders agree to release their lien in respect of any whole loan
mortgage, which is sold by the Company to either Existing Lender for a purchase
price not less than the advance rate in respect of such mortgage.
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(b) The Facility Lenders agree for the benefit of Bear Xxxxxxx
that during the continuance of the Standstill Period and thereafter until the
earlier of (i) the satisfaction of the Existing Obligations in full, (ii) the
exercise by Bear Xxxxxxx of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill Period, the
Facility Lenders will not seek to attach, sequester, foreclose or otherwise
exercise remedies with respect to the Collateral, provided that nothing herein
shall restrict the Facility Lenders from commencing suit on its Notes or for
payment of its Loan or enforcement of any other obligation owing to it under the
Loan Documents.
Section 3. Acknowledgment and Priorities. Bear Xxxxxxx hereby
acknowledges and consents to the entrance by the Company into the Loan Documents
and the granting of the lien in the Collateral granted pursuant to Section 2;
provided, however, notwithstanding anything to the contrary contained in the
Loan Agreement, the Notes or any of the Loan Documents, any security interest in
or other rights with respect to any Collateral granted to secure the Existing
Obligations under the Existing Agreements or otherwise has and shall have
priority, to the extent of the Existing Obligations, over any security interest
in such Collateral granted pursuant to the Loan Agreement or the other Loan
Documents irrespective of:
(i) the time, order or method of attachment or perfection of
the security interest created by this Agreement, any Loan Agreement or
any Loan Document;
(ii) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in any Collateral;
(iii) anything contained in any filing or agreement to which
the Facility Lenders, the Company, the Collateral Agent under the
Security Documents now or hereafter may be a party, and
(iv) the rules for determining priority under the U.C.C. or
other laws governing the relative priorities of secured creditors.
(b) Bear Xxxxxxx hereby agrees that, following payment in full
of all the Existing Obligations hereunder, any Collateral, including any books
and records (including, without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, held by it shall be held for the
benefit of the Facility Lenders, provided that if such Collateral is then
subject to the prior lien of another creditor, Bear Xxxxxxx may hold it for the
benefit of such other creditor and the Facility Lenders as their interests may
appear. If
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Bear Xxxxxxx has elected not to hold such Collateral following payment in full
of the Existing Obligations, it shall promptly forward any Collateral, including
any books and records (including, without limitation, computer files, printouts
and other computer materials and records) relating to the Collateral, as well as
all proceeds and products of such Collateral, to the Collateral Agent, provided
that if such Collateral is then subject to the prior lien of another creditor,
Bear Xxxxxxx may forward such Collateral, proceeds and products thereof to such
other creditor or, in the event of a dispute, to such party as a court of
competent jurisdiction may direct.
Section 4. Reserved Rights. Notwithstanding anything in this Agreement
to the contrary, the Company and the Facility Lenders agree that this Agreement
shall in no manner impair any right of Bear Xxxxxxx under the Existing
Agreements to enforce any condition precedent to any obligation it may have
thereunder to engage in future Repurchase Transactions with the Company and its
Subsidiaries, nor shall this Agreement limit the right of Bear Xxxxxxx to make
Margin Calls in respect of the hedging transactions with respect to U.S.
treasury securities that the Company may have entered into with Bear Xxxxxxx
outside of the Existing Agreements. All rights and obligations of Bear Xxxxxxx
under the Existing Agreements to enter into Repurchase Transactions or not shall
not be affected by this Agreement.
Section 5. Fee. Upon consummation of a Change in Control, the Company
shall pay Bear Xxxxxxx a fee of $1,000,000 in the aggregate payable in
immediately available funds to such account at such bank as Bear Xxxxxxx may
direct.
Section 6. Conditions Precedent. The obligations of the parties hereto
under this Agreement to carry out their obligations hereunder shall be subject
to the condition that each of the other Existing Lenders listed on Schedule I
(the "Other Existing Lenders") shall have entered into intercreditor agreements
substantially the same as this Agreement (the "Other Intercreditor Agreements"),
and if any Other Existing Lender shall have entered into an intercreditor
agreement which by its terms is, in the reasonable judgment of Bear Xxxxxxx,
more favorable to such Other Existing Lender, it shall be a condition to the
performance of Bear Xxxxxxx hereunder that the Company and the Facility Lenders
amend this Agreement to provide Bear Xxxxxxx with the benefit of such more
favorable terms (other than any fee payable pursuant to Section 5 hereof or of
any Other Intercreditor Agreement or any other economic consideration payable to
any Other Existing Lender under any other agreement).
Section 7. Certain Definitions.
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"Change of Control" means the occurrence of any of the following events
(other than as a consequence of the issuance of the Preferred Stock to the
Facility Lenders upon exercise of the Exchange Option):
(i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has
the right to acquire within one year), directly or indirectly,
of more than 50% of the Voting Stock of the Company; or
(ii) the Company consummates any sale, lease,
exchange or other disposition of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a
whole, in any transaction or series of transactions not in the
ordinary course of business; or
(iii) the Company engages in a merger, consolidation
or similar business combination with any third party.
"Collateral" means (i) any rights of the Company in any Eligible Asset
sold by the Company or its Subsidiaries and purchased by Bear Xxxxxxx in
connection with either a Repurchase Transaction or in response to a Margin Call;
(ii) the contractual right to receive payments, including the right to payments
of principal and interest and the right to enforce such payments, arising from
or under any of the Eligible Assets; (iii) the Company's contractual right to
service Purchased HELs (as defined in the Whole Loan Repurchase Agreement); (iv)
any other right, interest or property of the Company or any Subsidiary now or
hereafter securing the performance by the Company or any Subsidiary of the
Existing Obligations and (v) any and all proceeds, payments, income, profits and
products thereof, and all files and records relating thereto.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Creditor" means any of the Facility Lenders, Bear Xxxxxxx or any Other
Existing Lender.
"Eligible Asset" means any Purchased HELs under the Whole Loan
Repurchase Agreement, Purchased MBS under the Residuals Repurchase Agreement, or
asset held on repurchase under the Existing Agreements and any assets
transferred by the Company or its Subsidiaries to Bear Xxxxxxx pursuant to a
Margin Call.
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"Letter of Intent" means a non-binding letter of intent between the
Company and one or more creditworthy Persons having the financial and other
capacity to consummate the transaction contemplated thereby, providing for (i) a
merger, consolidation, share exchange, business combination or other similar
transaction involving the Company in which the outstanding Common Stock is
converted into the right to receive cash or securities of a Qualifying Issuer;
(ii) a sale, conveyance, lease, exchange, transfer or other disposition of all
or substantially all the assets of the Company and its Subsidiaries, taken as a
whole, in a single transaction or in a series of transactions outside of the
ordinary course of business in return for cash or securities of a Qualifying
Issuer; or (iii) a tender offer or exchange offer for any and all of the
outstanding shares of Common Stock in return for cash or securities of a
Qualifying Issuer, in each case which, upon consummation of the transactions
contemplated thereby, would result in a Change of Control and which letter of
intent contemplates the repayment of all of the Existing Obligations in full.
"Margin Call" means the right of Bear Xxxxxxx to give notice to require
the Company to transfer to Bear Xxxxxxx cash or additional collateral.
"Mortgage Loan" means any first-lien or second-lien residential
mortgage loan originated and serviced by the Company or its Subsidiaries in
accordance with the Seller's Guide.
"Purchased Loan" means any Mortgage Loan or Wet Mortgage Loan that is
sold by the Company or its Subsidiaries and purchased by Bear Xxxxxxx in
connection with a Repurchase Transaction.
"Purchased MBS" means any residual, subordinated or interest strip
class of asset-backed security (i) issued in connection with a securitization in
which Bear Xxxxxxx or its designee acted as lead or co-lead underwriter or
placement agent and (ii) sold by the Company or any Subsidiary and purchased by
Bear Xxxxxxx in connection with a Repurchase Transaction.
"Qualifying Issuer" means an issuer the outstanding common stock or
other common equity securities of which is listed on the New York Stock Exchange
or NASDAQ National Market System.
"Repurchase Transaction" means any transaction made by Bear Xxxxxxx
under the Existing Agreements.
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"Seller's Guide" means the "IMC Mortgage Company Client Operations
Manual", together with the underwriting guidelines of the Company and its
Subsidiaries, a true and correct copy of which was previously provided to Bear
Xxxxxxx by the Company and its Subsidiaries.
"Standstill Period" means a period ending on the first to occur of (i)
the later of (x) 45 days from and after the date hereof and (y) if the Company
shall have, on or before the 45th day from and after the date hereof, entered
into a Letter of Intent and delivered (by facsimile transmission or otherwise in
accordance with Section 16 hereof) to each Creditor a complete and correct copy
thereof, together with an Updated Business Plan showing the projected working
capital requirements of the Company for the period ending on the expected date
of closing of the transaction contemplated by the Letter of Intent and
commitments from creditworthy parties which, in the aggregate, are sufficient to
satisfy the Company's projected working capital requirements during such period,
90 days from and after the date hereof, or (ii) termination of the Standstill
Period in accordance with Section 1(b) hereof.
Section 8. Notice of Advances under the Loan Agreement, etc. (a) The
Company shall give prior written notice to Bear Xxxxxxx of each request for an
Additional Advance under Section 2.10 of the Loan Agreement contemporaneously
with making such request to the Facility Lenders. The Company shall give written
notice to Bear Xxxxxxx immediately upon either the funding of an Additional
Advance (together with such evidence thereof as Bear Xxxxxxx may reasonably
request) or the refusal of Facility Lender to fund such Additional Advance, as
the case may be.
(b) The Company shall give each Creditor prompt written notice of any
event which upon notice or lapse of time or both would constitute an event of
default in respect of any of its outstanding Debt.
(c) Notwithstanding the provisions of the Existing Agreements, during
the Standstill Period, the Company shall pay interest on the principal amount
outstanding under the Existing Agreements to Bear Xxxxxxx weekly on Friday of
each week or, if Friday is not a Business Day, on the next Business Day.
Section 9. Acknowledgment of Obligations. The Company acknowledges that
its obligations under the Existing Agreements and Bear Xxxxxxx' rights under the
Existing Obligations remain in full force and effect, and that the Company has
no defenses, counterclaims or offsets to its obligations under the Existing
Agreements and that to the extent such rights include liens on the Collateral,
such liens are valid, perfected and enforceable. The Company hereby waives the
application of the automatic stay in
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any bankruptcy proceeding in respect of the Existing Obligations and the
obligations under the Loan Documents and the Company and each Creditor consents
to the modification of the stay to permit the exercise by Bear Xxxxxxx or the
Facility Lenders of their rights in respect of the Collateral, provided that the
foregoing shall not be construed to modify the provisions of Sections 2(b) and 3
hereof. This document shall not constitute a waiver, amendment or modification
of the Existing Agreements, the Existing Obligations or the Loan Documents
except as expressly referred to herein and shall not be construed as a waiver or
consent to any future action on the part of the Company that would require a
waiver or consent of Bear Xxxxxxx or the Facility Lenders, respectively, except
to the extent expressly provided herein.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agreement shall be effective and binding unless in writing and signed by
Bear Xxxxxxx, the Other Existing Lenders and the Facility Lenders. Any such
waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
Section 11. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
Section 13. GOVERNING LAW; VENUE AND JURISDICTION. THE VALIDITY OF THIS
AGREEMENT, THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT HEREOF AND THE
RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF. EACH OF THE PARTIES HERETO
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF, AND AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT MAY BE TRIED AND LITIGATED
IN, FEDERAL OR, IN THE ABSENCE OF FEDERAL SUBJECT MATTER
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JURISDICTION, STATE COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK
UNLESS SUCH ACTIONS OR PROCEEDINGS ARE REQUIRED TO BE BROUGHT IN ANOTHER COURT
TO OBTAIN SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF
THE PARTIES WAIVES, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE IN ANY PROCEEDING BROUGHT
IN ACCORDANCE WITH THE IMMEDIATELY PRECEDING SENTENCE. SERVICE OF PROCESS,
SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST SUCH PARTY, MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS
INDICATED IN SECTION 16.
Section 14. Expenses. In addition to the foregoing, the Company will
also reimburse Bear Xxxxxxx and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective obligations and duties hereunder and to the extent the Existing
Agreements so provide, under the Existing Agreements, and for any reasonable
fees and expenses of legal or other professional advisors to Bear Xxxxxxx and
the Facility Lenders engaged in connection with the preparation and negotiation
of this Agreement.
Section 15. Agreement May Constitute Financing Statement. The Company
and Bear Xxxxxxx consents to the filing of this Agreement or a photocopy thereof
as a financing statement under the UCC as in effect in any jurisdiction in which
the Facility Lenders may determine such filing to be necessary or desirable.
Section 16. Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be given to such party by
facsimile transmission or by hand delivery at the following address or facsimile
number, or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other party and each other creditor,
(a) if to the Lender, Greenwich Street Capital Partners II, L.P., c/o Greenwich
Street Capital Partners, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxxxxx Xxxxx; Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to
Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxx Xxxxxx, tel: (000) 000-0000, fax: (000) 000-0000; (b) if to the Company,
IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attn.:
President, Tel: 000-000-0000, Fax: (000) 000-0000; with a copy to Xxxxxxxx X.
Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 0000; and (c) and if to Bear,
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Xxxxxxx: Bear Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxxxx X. Cedar, Tel.: (000) 000-0000, Fax: (000) 000-0000 and Xxxx
Xxxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, with a copy to; Cadwalader,
Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn. Xxxxx X.
Xxxxxxx, Esq., Tel.: (000) 000-0000, Fax: (000) 000-0000; and if to any of the
Other Existing Lenders, to such person and at the address and facsimile number
provided in the corresponding section of the Other Intercreditor Agreement for
notice to such Other Existing Lender. Each such notice, request or other
communication shall be effective when sent by facsimile transmission to the
facsimile number or when delivered by hand to the address specified in this
Section 16 or such section of such Other Intercreditor Agreement, provided that
a facsimile transmission shall be deemed to have been sent only so long as the
transmitting machine has provided an electronic confirmation of such
transmission.
Section 17. Binding Effect; Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns and to each of the other Creditors, each of
which is an intended third-party beneficiary hereof. Neither the Facility
Lenders nor Bear Xxxxxxx may sell, assign, participate or otherwise transfer or
dispose of all or any portion of the Loan or the Existing Obligations to any
Person unless such Person shall have assumed and agreed to be bound by the terms
hereof by written instrument in form reasonably satisfactory to the Company and
each other Creditor.
Section 18. Interpretation; Transaction Intended as Purchases and
Sales. The parties specifically acknowledge and recognize that certain language
and use of words in this Agreement may erroneously suggest that transactions
under the Existing Agreements are intended by them to be characterized as loans
or other secured financing arrangements and not as absolute purchases and sales
of mortgage loans and hereby reaffirm that all such transactions are intended to
constitute absolute purchases and sales.
Section 19. Counterparts; Section Headings. This Agreement may be
executed in any number of counterparts, each of which is an original, but all of
which together constitute but one instrument. Except as otherwise indicated,
references herein to any "Section" means a "Section" of this Agreement, and the
section headings in this Agreement are for purposes of reference only and shall
not limit or define the meaning hereof.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
IMC MORTGAGE COMPANY
By /s/
----------------------
Name:
Title:
BEAR XXXXXXX HOME EQUITY TRUST
By /s/
----------------------
Name:
Title:
BEAR XXXXXXX INTERNATIONAL
LIMITED
By /s/
----------------------
Name:
Title:
00
XXXXXXXXX XXXXXX CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By /s/
----------------------
Name:
Title:
15
This Intercreditor Agreement is
hereby acknowledged and agreed to by:
IMC CORPORATION OF AMERICA
By /s/
----------------------
Name:
Title:
IMC CREDIT CARD, INC.
By /s/
----------------------
Name:
Title:
IMC MORTGAGE COMPANY CANADA, LTD.
By /s/
----------------------
Name:
Title:
16
AMERICAN HOME EQUITY CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT CORPORATION
By /s/
----------------------
Name:
Title:
IMC INVESTMENT LIMITED PARTNERSHIP
By /s/
----------------------
Name:
Title:
ACG FINANCIAL SERVICES (IMC), INC.
By /s/
----------------------
Name:
Title:
AMERICAN MORTGAGE REDUCTION, INC.
By /s/
----------------------
Name:
Title:
17
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
COREWEST BANC
By /s/
----------------------
Name:
Title:
EQUITY MORTGAGE CO. (IMC), INC.
By /s/
----------------------
Name:
Title:
IMCC INTERNATIONAL, INC.
By /s/
----------------------
Name:
Title:
MORTGAGE AMERICA (IMC), INC.
By /s/
----------------------
Name:
Title:
18
NATIONAL LENDING CENTER, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING CENTER TILT, INC.
By /s/
----------------------
Name:
Title:
NATIONAL LENDING GROUP, INC.
By /s/
----------------------
Name:
Title:
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By /s/
----------------------
Name:
Title:
19
Schedule I
to the
Intercreditor Agreement
Other Existing Lenders
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as lender.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and Aspen Funding
Corp.
Loan and Security Agreement, dated as of February 28, 1997, between IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Industry Mortgage Company, L.P., Corewest
Banc, IMC Investment Corp., and IMC Investment Limited Partnership, as
borrowers, and Xxxxx Xxxxxx Real Estate Securities, Inc., as lender.
