AMENDED AND RESTATED INTERCREDITOR AGREEMENT
(Deutsche Lenders)
AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of February 17,
1999, 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 partner ship, GSCP OFFSHORE FUND, L.P.,
a Cayman Islands exempted limited partnership (each a "Facility Lender" and
collectively, the "Facility Lenders"), and GERMAN AMERICAN CAPITAL CORPORATION
("GAC") and ASPEN FUNDING CORP. ("Aspen", and collectively with GAC, the
"Existing Lenders"). Capitalized terms used in this Agreement without definition
have the meanings given to them in the Loan Agreement (as hereinafter defined)
as such terms are defined in the Loan Agreement on the date hereof (or as
amended by any amendment thereto approved by the Existing Lenders).
RECITALS
A. The Company has entered into a Loan Agreement, dated as of Octo ber
1 the Facility Lenders, pursuant to which the Facility Lenders have agreed to
extend to the Company Commitments to loan, in the aggregate, $33,000,000 (the
"Initial Loans"), subject to the terms and conditions set forth in the Initial
Loan Agreement, which Initial Loans are evidenced by the Notes (as defined in
the Initial Loan Agreement) and entitled to the benefit of certain guarantees
and security provided under certain of the other Loan Documents (as defined in
the Initial Loan Agreement).
B. Pursuant to (i) the Loan and Security Agreement, dated March 17,
1998, as amended from time to time, by and among the Company, IMC Corporation of
America, ACG Financial Services (IMC), Inc., American Mortgage Reduction, Inc.,
Central Money Mortgage Co. (IMC), Inc., Corewest Banc, Equity Mortgage Co.,
(IMC), Inc., Mortgage America (IMC), Inc., National Lending Center, Inc.,
National Lending Center TILT, Inc, and Residential Mortgage Corporation (IMC),
Inc., as borrowers, and GAC, as lender (the "GAC Agreement", and (ii) the Loan
and Security Agreement, dated March 17, 1998, as amended from time to time, by
and among the Company, IMC Corporation of America, ACG Financial Services (IMC),
Inc., American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and Aspen Funding
Corp., as lender, (the "Aspen Loan Agreement", and collectively with the "GAC
Agreement", the "Existing Loan Agreements"), and other related agreements in
favor of the Existing Lenders (collectively with the Existing Loan Agreements,
the "Existing Loan Documents"), the Existing Lenders have agreed to provide on
an uncommitted basis, collateralized interim financing to the Company from
time to time, to enable the Company to finance certain mortgage loans and for
other purposes provided therein; and the Company and certain of its Subsidiaries
have granted a security interest in the Collateral (as hereinafter defined) in
order to secure their respective obligations under the Existing Loan Documents
(the "Existing Obligations").
C. The Company intends to enter into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of February __, 1999, by and among Greenwich
Street Capital Partners II L.P., a Delaware limited partnership ("GSCP"), the
Company, IMC 1999 Acquisition Co., Inc., a Delaware corporation and a wholly
owned subsidiary of GSCP and its affiliates ("Acquisition"), pursuant to which
Acquisition would be merged with and into the Company and GSCP and its
affiliates would be issued common stock of the surviving corporation
representing approximately 93.5% of the outstanding common stock of the
surviving corporation (the "Merger").
D. In connection with the Merger Agreement, the Facility Lenders have
or intend to enter into (i) Amendment No. 1 to the Initial Loan Agreement
("Amendment No. 1"), providing for the Facility Lenders to extend to the Company
additional Commitments (the "Interim Commitments") to loan in the aggregate not
less than an additional $5,000,000 (the "Interim Loans") and (ii) an agreement
with Acquisition, dated as of February __, 1999, obligating the Facility
Lenders, upon consummation of the Merger, to enter into an amendment to the
Initial Loan Agreement, as amended (the "Amendment"), pursuant to which the
Facility Lenders will agree to extend to the Company Commitments to loan, in the
aggregate, an amount which, together with the Interim Commitments, will equal an
additional $40,000,000 (the "Additional Loans" and, together with the Initial
Loans and the Interim Loans, the "Loans"), subject to the terms and conditions
set forth in the Initial Loan Agreement, as amended by Amendment No. 1 and the
Amendment (as the same may be further modified, supplemented or restated from
time to time, the "Loan Agreement"), which Loans are evidenced by the Notes (as
defined in the Loan Agreement) and entitled to the benefit of certain guarantees
and security provided under certain of the other Loan Documents (as defined in
the Loan Agreement).
E. The Company, the Facility Lenders and the Existing Lenders have
previously entered into an Intercreditor Agreement, dated as of October 12, 1998
(the "Original Intercreditor Agreement"). In order to induce the Facility
Lenders to enter into the Amendment and GSCP to enter into the Merger Agreement,
the Facility Lenders, the Company, and the Existing Lenders have agreed to enter
into this agreement amending and restating the Original Intercreditor Agreement
(as so amended and restated, the "Intercreditor Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Existing Lenders
and the Facility Lenders agree to amend and restate the Original Intercreditor
Agreement to read in its entirety as follows:
Section 1. Standstill. (a) Each of the Facility Lenders and the
Existing Lender agrees, subject to the terms of this Agreement, that for the
Standstill Period, it shall not:
(i) file or join in the filing of any involuntary petition in
bankruptcy with respect to the Company or its Subsidiaries, or initiate or
participate in any similar proceedings for the benefit of creditors,
including any proceeding for the appointment of a trustee, receiver,
conservator or liquidator of the Company or its Subsidiaries or any portion
of its assets;
(ii) seek to collect or enforce by litigation or otherwise, any
payment obligations under the Existing Loan Documents or the Loan
Documents; provided that nothing in this Section 1 shall prohibit the
Facility Lenders from exercising their Exchange Option;
(iii) make any Margin Calls or other demands for payment in respect
of, or additional collateral to secure the Existing Obligations; provided,
however, that this clause shall not adversely affect the right of the
Existing Lenders to take any actions to preserve, protect or perfect their
liens in the Collateral;
(iv) declare a default or event of default under, or exercise or
enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Loan Document or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any of the
Collateral.
(b) The Standstill Period may be terminated by the Existing Lenders or
the Facility Lenders by written notice to the Company and each other Creditor
upon the occurrence of any of the following:
(i) a failure by the Company under the Existing Loan Agreement to make
to the Existing Lenders any scheduled payment of interest, which failure
continues unremedied for two days, or any payment of principal due in
respect of payoffs or prepayments of mortgage loans comprising any portion
of the Collateral or any payment of principal due pursuant to Section 5
hereof;
(ii) any intentional fraud or misrepresentation by the Company;
(iii) immediately upon a failure of the Facility Lenders to make (x)
an Advance (as defined in the Initial Loan Agreement) under the Initial
Loan Agreement following a request of the Company thereunder, (y) an
Interim Loan under the Initial Loan Agreement as amended by Amendment No. 1
following a request by the Company thereunder or (z) immediately upon
consummation of the Merger, the Additional Loans under the Loan Agreement;
(iv) immediately in the event any Other Existing Lender takes any of
the actions described in Section 1(a) of its Other Intercreditor Agreement,
or, in the case of the Existing Lenders, immediately in the event any
Facility Lender takes any of the actions described in Section 1(a) of this
Agreement, or, in the case of the Facility Lenders, immediately in the
event either Existing Lender takes any of the actions described in Section
1(a) of this Agreement, in each case whether or not it shall have given
notice of termination of the Standstill Period.
(v) the condition contained in subclause (y) of clause (i) of the
definition of "Standstill Period" to the extension of the Standstill Period
beyond the date which is 150 days from and after the date hereof shall not
have been satisfied on or before such date;
(vi) a Change of Control or payment of the Take-Out Premium;
(vii) 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;
(viii) the Company shall not have entered into the Merger Agreement
and Amendment No. 1 on or before February 19, 1999;
(ix) the independent servicer described in Section 5(h) of this
Agreement shall not have been retained on or before the date which is 30
days after the date of consummation of the Merger; and
(x) the Company shall, at any time on or after the date of
consummation of the Merger, repay all or any portion of the Loans.
(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 appointment 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 volun tary
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 involun tary case under any such law; or the Company or
any Subsidiary shall file an answer admitting the material allegations of a
petition filed against the Company in any such proceeding, or otherwise
seek relief under the provisions of any existing or future Federal or State
bankruptcy, insolvency or other similar law providing for the
reorganization or winding-up of corporations, or providing for an
arrangement, agreement, composition, extension or adjustment 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 com petent jurisdiction shall assume
jurisdiction, custody or control of the Company or any Subsidiary or of any
substantial part of its property and such jurisdiction, custody or control
shall remain in force unrelinquished, unstayed or unterminated for a period
of 30 days.
Section 2. Grant of Security Interest. (a) In order to secure full and
timely payment of the Obligations under the Loan Agreement, and to secure the
performance of all of the other obligations of the Company under the Loan
Documents, the Company and each Subsidiary hereby mortgages, pledges and assigns
and transfers to the Facility Lenders, and grants to the Facility Lenders, a
continuing perfected security interest in, and a lien in the Collateral. The
Facility Lenders agree to release their lien in respect of any whole loan
mortgage, which is sold by the Company to either Existing Lender for a purchase
price not less than the advance rate in respect of such mortgage.
(b) The Facility Lenders agree for the benefit of the Existing Lenders
that during the continuance of the Standstill Period and thereafter until the
earlier of (i) the satisfaction of the Existing Obligations in full, (ii) the
exercise by the Existing Lenders of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill Period, the
Facility Lenders will not seek to attach, sequester, foreclose, levy on 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. (a) Each Existing Lender
hereby acknowledges and consents to the entrance by the Company into the Loan
Documents and the granting of the lien in the Collateral granted pursuant to
Section 2; provided, however, notwithstanding anything to the contrary contained
in the Loan Agreement, the Notes or any of the Loan Documents, the parties
hereto acknowledge and agree that any security interest in or other rights with
respect to any Collateral granted to secure the Existing Obligations under the
Existing Loan Agreements or otherwise has and shall have priority over any
security interest in such Collateral granted pursuant to this Agreement, the
Initial Loan Agreement, 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, the Initial Loan Agreement,
the Loan Agreement or any Loan Document;
(ii) the time or order of filing or recording of financing statements
or other documents filed or recorded to perfect security interests in any
Collateral;
(iii) anything contained in any filing or agreement to which the
Facility Lenders, the Company, the Collateral Agent under the Security
Documents now or hereafter may be a party, and
(iv) the rules for determining priority under the U.C.C. or other laws
governing the relative priorities of secured creditors.
(b) Each Existing Lender hereby agrees that, following payment in full
of all the Existing Obligations hereunder, any Collateral, including any books
and records (including, without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, held by it shall be held for the
benefit of the Facility Lenders, provided that if such Collateral is then
subject to the prior lien of another creditor, the Existing Lender may hold it
for the benefit of such other creditor and the Facility Lenders as their
interests may appear. If the Existing Lender has elected not to hold such
Collateral following payment in full of the Existing Obligations, it shall
promptly forward any Collateral, including any books and records (including,
without limitation, computer files, printouts and other computer materials and
records) relating to the Collateral, as well as all proceeds and products of
such Collateral, to the Collateral Agent.
(c) Nothing contained in this Agreement shall alter or impair the
Existing Lenders' rights under the Existing Loan Documents from and after the
termination of the Standstill Period in accordance herewith or be interpreted to
mean that the Existing Lenders have any obligation under the Existing Loan
Documents or otherwise to return any proceeds received on a sale or deemed sale
of any Pledged Securities or Mortgage Loans to the Company or any Subsidiary,
except as expressly provided herein.
Section 4. Reserved Rights. (a) Notwithstanding anything in this
Agreement to the contrary, the Company and the Facility Lenders agree that this
Agreement shall in no manner impair any right of the Existing Lenders under the
Existing Loan Agreements to enforce any condition precedent to any obligation it
may have
thereunder to make future Advances to the Company and its Subsidiaries, nor
shall this Agreement limit the right of the Existing Lenders to make Margin
Calls in respect of the hedging transactions with respect to U.S. treasury
securities that the Company may have entered into with either Existing Lender
outside of the Existing Loan Documents. All rights and obligations of the
Existing Lenders under the Existing Loan Documents to make Advances or not make
Advances shall not be affected by this Agreement.
(b) In addition and notwithstanding anything to the contrary contained
herein, this Agreement shall not (i) apply to any Advances made from and after
the date hereof, or any other obligation of the Company or any of its
Subsidiaries to either Existing Lender or any of its Affiliates incurred from
and after the date hereof or (ii) limit the rights of either Existing Lender or
any Affiliate thereof (x) to purchase mortgage loans from the Company or any of
its Subsidiaries, (y) to receive principal and/or interest at the applicable
mortgage rate on mortgage loans purchased by such Existing Lender or any such
Affiliate from the Company or any of its Subsidiaries or (z) to sell mortgage
loans to the Company or any of its Subsidiaries.
Section 5. Fees; Amortization. (a) From and after the date this
Agreement becomes effective, (i) within five days following the effective date
hereof, in the case of any Available Cash Flow from Securitization Receivables
received prior to the effective date hereof for January and February 1999 and
(ii) within five days following the receipt by the Existing Lender each month of
Available Cash Flow from Securitization Receivables, the Existing Lender shall
apply the Applicable Percentage of such Available Cash Flow from Securitization
Receivables to repayment of principal of the Existing Obligations under the
Existing Loan Documents secured by the Pledged Securities generating such
Available Cash Flow from Securitization Receivables and shall remit the balance
of such Available Cash Flow from Securitization Receivables to the Company,
which may use such funds for general corporate purposes.
(b) Upon consummation of the first to occur of (i) the Merger or (ii) a
Change in Control, the Company shall pay the Existing Lenders a fee of
$1,000,000 in the aggregate payable in immediately available funds to such
account at such bank as the Existing Lenders may direct.
(c) Upon consummation of the Merger, the Company shall repay $1,500,000
of the principal of the Existing Obligations.
(d) The Company shall use its best efforts to sell or otherwise
liquidate each Mortgage Loan financed under the Existing Loan Documents which as
of the date of consummation of the Merger was a Delinquent Mortgage Loan and
apply the proceeds
thereof to repayment of the amount advanced under the Existing Loan Documents
promptly upon receipt thereof. The Company shall repay the principal amount
outstanding under the Existing Loan Documents in an amount equal to the Mortgage
Loan Differential in respect of one third of such Delinquent Mortgage Loans on
the date of consummation of the Merger. In the event more than one-third in
aggregate principal amount of all such Delinquent Mortgage Loans remain
outstanding and have not been sold or liquidated by September 30, 1999, the
Company shall repay the principal amount outstanding under the Existing Loan
Documents in respect of a portion of such Delinquent Mortgage Loans which,
together with such Delinquent Mortgage Loans that are no longer outstanding or
have been sold or liquidated by September 30, 1999, represent two-thirds of all
such Delinquent Mortgage Loans in an amount equal to the Mortgage Loan
Differential. In the event any such Delinquent Mortgage Loan remains outstanding
and is not sold or liquidated by December 31, 1999, the Company shall repay the
principal amount outstanding under the Existing Loan Documents in respect of
such Delinquent Mortgage Loan in an amount equal to the Mortgage Loan
Differential.
(e) Within 15 days following the end of each month from and after the
consummation of the Merger, the Company shall repay the principal amount
outstanding under the Existing Loan Documents in respect of each Mortgage Loan
financed there under which during such calendar month and after the consummation
of the Merger first became, and as of the last day of such calendar month
remained, a Delinquent Mortgage Loan in an amount equal to the Mortgage Loan
Differential.
(f) The Company shall immediately repay the amount outstanding under
the Existing Loan Documents by the amount equal to the Net Proceeds of Sale of
Securi tization Receivables in respect of any Pledged Securities sold or
otherwise disposed of by the Company or any Subsidiary during such calendar
month. The Company shall not sell or otherwise dispose of any Pledged Securities
without the Existing Lenders' consent and without reaching agreement with the
Existing Lenders as to an appropriate reduction of the Minimum Repayment Amount,
such consent and agreement not to be unreasonably withheld or delayed by the
Existing Lenders or the Company. The parties agree that it would be reasonable
for either Existing Lender to withhold its consent to the sale of any Pledged
Securities if, in its sole discretion, the Existing Lender concludes that such
sale will impair its ability to be paid the Existing Obligations, the selling
price for the Pledged Securities should be higher or the Pledged Securities have
not been adequately marketed.
(g) Within one day following the end of each calendar month commencing
with the calendar month in which the date of the consummation of the
Merger is deemed to occur, the Company shall repay the principal amount
outstanding under the Existing Loan Documents by an amount equal to the excess,
if any, of the Minimum Repayment Amount for the applicable period specified in
clause (a) through (l), both inclusive, of the definition of "Minimum Repayment
Amount", over the aggregate amount applied to such repayment in respect of such
period pursuant to Section 5(a) and this Section 5(g).
(h) The Company shall use best efforts to retain the services of a
rated and approved independent servicer with expertise in servicing delinquent
mortgage loans to assist it in servicing Delinquent Mortgage Loans.
(i) The Company shall, on the date three months after the date hereof,
repay any existing Advances, which Advances were outstanding as of October 12,
1998, secured by Mortgage Loans other than Delinquent Mortgage Loans. With
respect to each Advance secured by Mortgage Loans other than Delinquent Mortgage
Loans made under the Existing Loan Agreements on or after October 12, 1998, the
Company shall repay such Advance on the date which is six months after such
Advance was made. Upon payment of any such Advance in full, the Existing Lenders
shall release the related Mortgage Loan from the lien of the Existing Loan
Documents. In the event the Company realizes net proceeds from the sale of any
such Mortgage Loans so released in excess of the aggregate amount of Advances so
repaid pursuant to this Section 5(i), the Company will promptly apply such
excess to the repayment of other Advances then outstanding.
(j) In the event the Company shall fail to pay when due any amount due
to the Existing Lender under this Agreement, the Existing Lender may set off
such amount against Available Cash Flow from Securitization Receivables or
payments on Pledged Loans otherwise payable to the Company hereunder.
Section 6. Condition Precedent. The effectiveness of this Agreement
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 an Other
Intercreditor Agreement in the form annexed hereto. The Company shall furnish
the Existing Lenders complete and correct copies of each such Other
Intercreditor Agreement within one business day of its execution.
Section 7. Certain Definitions.
"Additional Collateral" means cash or additional collateral reasonably
acceptable to the Existing Lenders transferred to either Existing Lender
pursuant to the applicable Existing Loan Agreement.
"Advance" means advances made by either Existing Lender to the Company
or any Borrower, pursuant to the terms and conditions of the applicable Existing
Loan Agreement.
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" (together with the
correlative meanings of "controlled by" and "under common control with") means
possession, directly or indirectly, of the power (a) to vote 20% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
directors or managing general partners (or their equivalent) of such Person, or
(b) to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Applicable Percentage" means (i) for January 1999, 43.33%, (ii) for
each calendar month commencing on or after February 1, 1999 to the date of
consummation of the Merger, 65%, (iii) for the first six calendar months
commencing on or after the date of the consummation of the Merger, 65%, and (iv)
for the next six months, 70%. For purposes of applying the foregoing, if the
date of consummation of the Merger occurs on or before the fifteenth day of a
month, the Merger shall be deemed to have been consummated as of the first day
of such month, and if the date of consummation of the Merger occurs after the
fifteenth day of a month, then the Merger shall be deemed to have been
consummated as of the first day of the succeeding month.
"Assets" means the collective reference to Mortgage Loans, Lender
Mortgage and Pledged Securities.
"Available Cash Flow from Securitization Receivables" means the amount
of any distribution with respect to, or prepayment of, any Pledged Securities.
"Borrowers" means any of IMC Mortgage Company, IMC Corporation of
America, ACG Financial Services (IMC), Inc., American Mortgage Reduction, Inc.,
Central Money Mortgage Co. (IMC), Inc., CoreWest Banc, Equity Mortgage Co.
(IMC), Inc., American Home Equity Corporation, Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc., National
Lending Group, Inc. and any additional Persons that may become Borrowers under
either Existing Loan Agreement.
"Cash Collateral Account" means a cash collateral account established
and
maintained by the Existing Lenders pursuant to the terms and conditions of the
Existing Loan Agreements.
"Change of Control" means the occurrence of any of the following events
(other than as a consequence of the issuance of the Preferred Stock to the
Facility Lenders upon exercise of the Exchange Option or the consummation of the
Merger):
(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 all of the Company's or any Borrower's right, title
and interest in, to and under each of the following items of property, whether
now owned or hereafter acquired, now existing or hereafter created and wherever
located:
all Assets;
all Collateral Documents, including without limitation all promissory
notes relating to or evidencing the Assets, and all Servicing Records, servicing
agreements and any other collateral pledged or otherwise relating to such
Collateral, together with all files, documents, instruments, surveys,
certificates, correspondence, appraisals, computer programs, computer storage
media, accounting records and other books and records relating thereto;
all securities, monies or property representing dividends or interest
on any of the foregoing, or representing a distribution in respect of the
foregoing, or resulting from a split-up, revision, reclassification or other
like change of the foregoing or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or otherwise
in respect of, the foregoing;
all Pooling and Servicing Agreements;
all Collection Accounts and amounts on deposit therein;
all Cash Collateral Accounts and amounts on deposit therein;
all guaranties and insurance (issued by governmental agencies or
otherwise including without limitation, FHA Mortgage Insurance) and any
insurance certificate or other document evidencing such guaranties or insurance
relating to any item of Collateral and all claims and payments thereunder;
all other insurance policies and insurance proceeds relating to any
item of Collateral;
all Interest Rate Protection Agreements;
all Additional Collateral provided to the Existing Lenders;
all of the Company's or any Borrower's rights, but not their
obligations, under any purchase agreements and servicing agreements and all
servicing rights covering or relating to any item of the Collateral to which the
Company or any of the Borrowers are a party;
all "general intangibles" as defined in the Uniform Commercial Code
relating to or constituting any and all of the items listed in the foregoing
items;
any other right, interest or property of the Company or any Subsidiary
now or hereafter securing the performance by the Company or any Subsidiary of
the Existing Obligations; and
any and all replacements, substitutions, distributions on or proceeds
of any and all of the foregoing.
"Collateral Documents" means, with respect to the items of Collateral,
the documents comprising the Collateral File for such Collateral.
"Collateral File" means, with respect to each Mortgage Loan, those
documents that are delivered to the Custodian or which at any time come into the
possession of the Custodian, pursuant to the terms and conditions of either
Custodial
Agreement.
"Collection Account" means a collection account established and
maintained by the Existing Lenders pursuant to the terms and conditions of the
Existing Loan Agreements.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Company" means IMC Mortgage Company, a Florida corporation, and any
successor by merger and any entity purchasing all or substantially all of the
assets of the Company.
"Creditor" means any of the Facility Lenders, the Existing Lenders or
any Other Existing Lender.
"Custodial Agreements" means separate Custodial Agreements by among the
Company, certain of its Subsidiaries, Custodian and each Existing Lender, as the
same shall be modified and supplemented and in effect from time to time.
"Custodian" means BankBoston, N.A., as custodian under the Custodial
Agreements, and its successors and permitted assigns thereunder.
"Delinquent Mortgage Loan" means any Mortgage Loan which, as of any
date of determination, is more than 90 days delinquent in payment of any
principal or interest due thereunder.
"FHA" means the Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
"FHA Loan" means a Mortgage Loan which is the subject of FHA Mortgage
Insurance.
"FHA Mortgage Insurance" means mortgage insurance authorized under the
National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Regulations" means regulations promulgated by HUD under the
National Housing Act, codified in 24 Code of Federal Regulations, and other HUD
issuances relating to FHA Loans, including the related handbooks, circulars,
notices and mortgagee letters.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"HUD" means the Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to FHA Mortgage Insurance, including subdivisions
thereof such as the FHA.
"Interest Rate Protection Agreement" means, with respect to any or all
of the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
similar arrangements providing for protection against fluctuations in interest
rates or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Lender Mortgage" means, with respect to any REO Property owned or to
be owned by the Borrowers a duly executed and recorded mortgage, deed of trust
or similar instrument in favor of either Existing Lender on such REO Property,
which Lender Mortgage shall (A) name either Existing Lender as the mortgagee
thereon or the benefi ciary thereof and (B) be on a FNMA uniform instrument (or
another form acceptable to the Existing Lenders).
"Lien" means, as defined in the Uniform Commercial Code in effect in
any jurisdiction, with respect to the mortgages, liens, pledges, charges,
security interests or similar encumbrances created pursuant to the applicable
Existing Loan Agreement.
"Margin Call" means the right of the Existing Lenders to give notice to
require the Company or any Subsidiary to transfer to the Existing Lenders cash
or additional collateral.
"Minimum Repayment Amount" means for each of the one- through
twelve-month periods commencing with the calendar month in which the date of the
consummation of the Merger is deemed to occur, the applicable amount as follows:
(a) first month, $333,000 (b) first two months, $666,000, (c) first three
months, $1,000,000, (d) first four months, $2,000,000, (e) first five months,
$3,000,000, (f) first
six months, $4,000,000, (g) first seven months, $5,166,000, (h) first eight
months, $6,333,000, (i) first nine months, $7,500,000, (j) first ten months,
$8,666,000, (k) first eleven months, $9,833,000, and (l) twelve months,
$11,000,000. For purposes of applying the foregoing, if the date of consummation
of the Merger occurs on or before the fifteenth day of a month, then the Merger
shall be deemed to have been consummated as of the first day of such month, and,
if the date of consummation of the Merger occurs after the fifteenth day of a
month, then the Merger shall be deemed to have been consummated as of the first
day of the succeeding month.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on the fee in real property
securing the Mortgage Note.
"Mortgage Loan" means a mortgage loan which the Custodian has been
instructed to hold for the applicable Existing Lender pursuant to a Custodial
Agreement, and which Mortgage Loan includes, without limitation, (i) a Mortgage
Note and related Mortgage and (ii) all of the Company's or any Borrowers' right,
title and interest in and to the Mortgaged Property covered by such Mortgage.
"Mortgage Loan Differential" means, with respect to any Delinquent
Mortgage Loan, the excess of the amount originally advanced by the applicable
Existing Lender to the Company under the applicable Existing Loan Agreement in
respect of such Delinquent Mortgage Loan, reduced by any amount previously
applied in reduction of the principal amount outstanding under the applicable
Existing Loan Agreement in respect of such Delinquent Mortgage Loan pursuant to
Section 5(d) and Section 5(e) hereof, over an amount equal to 80% of the unpaid
principal amount of such Mortgage Loan at the time of such advance.
"Mortgage Note" means the original executed promissory note or other
evidence of the indebtedness of a mortgagor/borrower with respect to a Mortgage
Loan.
"Mortgaged Property" means the real property (including all
improvements, buildings, fixtures, building equipment and personal property
thereon and all additions, alterations and replacements made at any time with
respect to the foregoing) and all other collateral securing repayment of the
debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor on a Mortgage Note.
"Net Proceeds of Sale of Securitization Receivables" means the
proceeds, net of any reasonable out-of-pocket costs of sale or disposition,
realized by the Company
or any Subsidiary from any sale, lease or other disposition of any Pledged
Securities.
"Original BankBoston Forbearance Agreement" means the Forbearance and
Intercreditor Agreement, dated as of October 12, 1998, between the Company, the
Facility Lenders and BankBoston, N.A.
"Other Existing Lenders" has the meaning specified in Section 6.
"Other Intercreditor Agreements" means the separate intercreditor
agreements among the Company, an Other Existing Lender and the Facility Lenders.
"Person" means any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"Pledged Securities" means the Subordinated Securities pledged to an
Existing Lender from time to time and held by such Existing Lender as Collateral
under the applicable Existing Loan Agreement.
"Pooling and Servicing Agreement" means any pooling and servicing
agreement, sale and servicing agreement, trust agreement or other agreement
pursuant to which the Mortgage Loans ultimately underlying any of the Pledged
Securities are serviced or administered or the Pledged Securities are issued or
exchanged.
"REO Property" means a fee in real property acquired by the Borrowers
pursuant to or in connection with a purchase agreement, including a Mortgaged
Property acquired through foreclosure of a Mortgage Loan or by deed in lieu of
such foreclosure.
"Securitization Transaction" means all underwritings or private
placements of (1) securities issued by or sponsored by and (2) backed by
Mortgage Loans or substantially similar assets acquired by or owned by Borrowers
or the Company (or any of their respective Affiliates), including without
limiting the generality of the foregoing, any of either entity's securitization
and other collateralized term financing transactions that involve Mortgage Loans
or substantially similar assets.
"Servicing Records" means any and all servicing agreements, files,
documents, records, data bases, computer tapes, copies of computer tapes, proof
of insurance coverage, insurance policies, appraisals, other closing
documentation, payment
history records, and any other records relating to or evidencing the servicing
of Collateral.
"Standstill Period" means a period ending on the first to occur of (i)
the later of (x) 150 days from and after the date hereof and (y) one year from
and after the date of consummation of the Merger, if the Company shall have, on
or before the 150th day from and after the date hereof, consummated the Merger
and delivered (by facsimile transmission or otherwise in accordance with Section
16 hereof) to each Creditor confirmation thereof, (ii) termination of the
Standstill Period in accordance with Section 1(b) or (c) hereof or (iii)
termination of the Merger Agreement.
"Subordinated Securities" means interest-only strips, residual
interests, subordinated interests or reserve certificates issued and transferred
to the Debtor or Borrowers in connection with any Securitization Transaction or
any other collateral as the Secured Party may deem appropriate.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York.
Section 8. Notice of Advances under the Loan Agreement, etc. (a) The
Company shall give prior written notice to the Existing Lenders of each request
for an Additional Advance under Section 2.10 of the Initial Loan Agreement as
amended by Amendment No. 1 contemporaneously with making such request to the
Facility Lenders. The Company shall give written notice to the Existing Lenders
immediately upon either the funding of an Additional Advance (together with such
evidence thereof as the Existing Lenders may reasonably request) or the refusal
of Facility Lender to fund such Additional Advance, as the case may be.
(b) The Company shall give each Creditor prompt written notice of any
event which upon notice or lapse of time or both would constitute an event of
default in respect of any of its outstanding Debt.
(c) The Company shall give the Existing Lenders and the Facility
Lenders prompt written notice of any event that would permit termination of the
Standstill Period pursuant to clauses (iii), (iv), (vi), (vii), (viii), (ix) or
(x) of Section 1(b) hereof.
(d) The Company shall give the Existing Lenders prompt written notice
of the entering into of the Merger Agreement and Amendment No. 1, the
consummation of the Merger, the entering into of the Amendment and the funding
by the Facility Lenders
of the advances thereunder.
(e) Notwithstanding the provisions of the Existing Loan Agreement,
during the Standstill Period, the Company shall pay interest on the principal
amount outstanding under the Existing Loan Agreement to the Existing Lenders
weekly on Friday of each week or, if Friday is not a Business Day, on the next
Business Day.
(f) The Company shall not repay any principal outstanding under the
Loan Agreement during the Standstill Period.
(g) During the Standstill Period (without limiting any obligations
under the Existing Loan Documents), the Company shall deliver to the Existing
Lenders at the same time it delivers to the Facility Lenders, the Disclosure
Letter, the Three-Month Business Plan, any Updated Business Plan and all other
financial statements and reports required to be provided to the Facility Lenders
pursuant to Section 5.5 of the Loan Agreement.
Section 9. Acknowledgment of Obligations. The Company acknowledges that
its obligations under the Existing Loan Documents and the lien on the Collateral
securing the Existing Obligations remain in full force and effect, and that the
Company has no defenses, counterclaims or offsets to its obligations under the
Existing Loan Documents and that such liens are valid, perfected and
enforceable. The Company hereby waives the application of the automatic stay in
any bankruptcy proceeding in respect of the Existing Obligations and the
obligations under the Loan Documents and the Company and each Creditor consents
to the modification of the stay to permit the exercise by the Existing Lenders
or the Facility Lenders of their rights in respect of the Collateral, provided
that the foregoing shall not be construed to modify the provisions of Sections
2(b) and 3 hereof. This document shall not constitute a waiver, amendment or
modification of the Existing Loan Documents, the Existing Obligations or the
Loan Documents except as expressly referred to herein and shall not be construed
as a waiver or consent to any future action on the part of the Company that
would require a waiver or consent of the Existing Lenders or the Facility
Lenders, respectively, except to the extent expressly provided herein.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agreement shall be effective and binding unless in writing and signed by
the Existing Lenders, the Other Existing Lenders and the Facility Lenders. Any
such waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
Section 11. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 12. No Bankruptcy Suits. The Facility Lenders agree that they
will not institute against or join any other person in instituting against Aspen
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the latest maturing commercial paper note
issued by Aspen is paid in full.
Section 13. Letter Agreement. The Company and the Facility Lenders
agree that notwithstanding any of the provisions of this Agreement, this
Agreement does not supersede the provisions of the (i) the Letter Agreement
regarding certain issues in connection with the Existing Loan Agreements, dated
as of October 12, 1998 by and between the Company and the Existing Lenders and
(ii) the Letter Agreement re: DBS Underwriting Mandate, dated October 12, 1998,
as amended, between Deutsche Bank Securities and IMC Mortgage Company and each
such Letter Agreement shall remain in full force and effect in conformance with
the terms thereof.
Section 14. Additional Payments. In the event that the Company or any
Affiliate proposes to sell or otherwise liquidate any Pledged Securities (or any
securitization receivables pledged or transferred to any Other Existing Lender
having the right to receive all or a portion of the proceeds of such sale or
liquidation) at a time when the amount of the Existing Obligations secured by
such Pledged Securities (or the amount of the Existing Obligations (as defined
in an Other Intercreditor Agreement) owing to such an Other Existing Lender
secured by, or subject to repurchase obligations in respect of, such other
securitization receivables) remaining outstanding is or would, after giving
effect to any payment required to be made upon such sale or liquidation, be less
than 40% of such Existing Obligations as of the date this Agreement became
effective and which is in addition to the payments contemplated under the
provisions of Section 5 of this Agreement or Section 5 of any Other
Intercreditor Agreement or the Original Forbearance and Intercreditor Agreement,
each as may be amended from time to time (including, without limitation, any
amounts received on account of sales of Pledged Securities (or such
securitization receivables) pursuant to Section 5(f) which cause the amount
received pursuant to Section 5(a) and 5(f) in a given month to exceed the
Minimum Repayment Amount), the Company shall not effect any such sale or
liquidation unless it shall take such steps as may be necessary to cause
payments to be made in
respect of the Existing Obligations and the Existing Obligations (as defined in
the Other Intercreditor Agreements) owing to such Other Existing Lenders on a
pro rata basis calculated based on the respective outstanding principal balance
of such Existing Obligations owing to each Existing Lender and each such Other
Existing Lender.
Section 15. 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 16. 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 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 SEC TION
19.
Section 17. Expenses. In addition to the foregoing, the Company will
also reimburse the Existing Lenders and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective
obligations and duties hereunder and, to the extent the Existing Loan Documents
so provide, under the Existing Loan Documents, and for any reasonable fees and
expenses of legal or other professional advisors to the Existing Lenders and the
Facility Lenders engaged in connection with the preparation and negotiation of
this Agreement and review and negotiation of all related documents, including
the Merger Agreement, Loan Agreement, and monitoring performance of all related
documents. If such fees are not paid by the Company within 30 days of
submission, the Existing Lenders may pay such fees from Available Cash Flow from
Securitization Receivables and payments on Mortgage Loans.
Section 18. Agreement May Constitute Financing Statement. The Company
and the Existing Lenders consent to the filing of this Agreement or a photocopy
thereof as a financing statement under the UCC as in effect in any jurisdiction
in which the Facility Lenders may determine such filing to be necessary or
desirable.
Section 19. 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 Facility Lenders, 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: (212) 000- 0000, Fax: (000) 000-0000; with
a copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxxx Xxxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000; (b) if to
the Company, IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx
00000,Xxxx.: President, Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to
Xxxxxxxx X. Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000.; and (c)
and if to the Existing Lenders: (i) in the case of Aspen, to: Aspen Funding
Corp. c/o Amacar Group, 0000X Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attn.: Xxxxxxx Xxxxxxx, tel.: (000) 000-0000, fax: (000) 000-0000, with a copy
to: Deutsche Bank A.G., as agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxxx Xxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000 and Xxxxxxx
Xxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000; (ii) in the case of GAC, to:
German American Capital Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn.: Xxxxx Xxxxxxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, with
a copy to: Deutsche Bank A.G., as agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn.: Xxxx Xxxxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000, and
Xxxxxxx Xxxxx, Tel.: (000) 000-0000, Fax: (000) 000-0000; and in either case
described in clause (i) or (ii) above; with a copy to Cadwalader, Xxxxxxxxxx &
Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxx, Esq.,
Tel: (000) 000-0000, Fax: (000) 000-0000; and if to any of the
Other Existing Lenders, to such person and at the address and facsimile number
provided in Schedule II hereto. Each such notice, request or other communica
tion shall be effective when sent by facsimile transmission to the facsimile
number or when delivered by hand to the address specified in this Section 19 or
such section of Schedule II hereto, 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 20. 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, including any successor of the Company by
merger or any entity which purchases all or substantially all of the assets of
the Company, and to each of the other Creditors, each of which is an intended
third-party beneficiary hereof. Neither the Facility Lenders nor the Existing
Lenders may sell, assign, participate or otherwise transfer or dispose of all or
any portion of the Loan or the Existing Obligations to any Person unless such
Person shall have assumed and agreed to be bound by the terms hereof by written
instrument in form reasonably satisfactory to the Company and each other
Creditor.
Section 21. 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.
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:
By /s/
--------------------------------
Name:
Title:
GERMAN AMERICAN CAPITAL
CORPORATION
By /s/
--------------------------------
Name:
Title:
By /s/
--------------------------------
Name:
Title:
ASPEN FUNDING CORP.
By /s/
--------------------------------
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By: /s/
----------------------------
Name:
Title: Managing Member
This Intercreditor Agreement is hereby
acknowledged and agreed to by:
IMC CORPORATION OF AMERICA
IMC CREDIT CARD, INC.
IMC MORTGAGE COMPANY CANADA, LTD.
IMC SECURITIES INC.
AMERICAN HOME EQUITY CORPORATION
IMC INVESTMENT CORPORATION
IMC INVESTMENT LIMITED PARTNERSHIP
ACG FINANCIAL SERVICES (IMC), INC.
AMERICAN MORTGAGE REDUCTION, INC.
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
COREWEST BANC
EQUITY MORTGAGE CO. (IMC), INC.
IMCC INTERNATIONAL, INC.
MORTGAGE AMERICA (IMC), INC.
NATIONAL LENDING CENTER, INC.
NATIONAL LENDING CENTER TILT, INC.
NATIONAL LENDING GROUP, INC.
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By /s/
----------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: /s/
----------------------------------
Name:
Title:
BEAR XXXXXXX HOME EQUITY TRUST
By: /s/
----------------------------------
Name:
Title:
BEAR XXXXXXX INTERNATIONAL LIMITED
By: /s/
----------------------------------
Name:
Title:
Schedule I
to the
Deutsche Lenders Intercreditor Agreement
Other Existing Lenders
Master Repurchase Agreement, dated as of March 29, 1996, as amended from time to
time, by and among Bear Xxxxxxx Home Equity Trust and the Company and certain of
the Company's Subsidiaries.
Master Repurchase Agreement, dated as of May 1, 1997 between Bear, Xxxxxxx
International Limited and Industry Mortgage Company, L.P.
Institutional Account Agreement, dated October 23, 1996, between and among
Industry Mortgage Company, L.P. and Bear Xxxxxxx.
Loan and Security Agreement, dated as of February 28, 1997, between IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Industry Mortgage Company, L.P., Corewest
Banc, IMC Investment Corp., and IMC Investment Limited Partnership, as
borrowers, and Xxxxx Xxxxxx Real Estate Securities, Inc., as lender.
(i) Bridge Loan and Security Agreement, dated as of October 10, 1997, as amended
from time to time, by and among the Company, certain of its Subsidiaries and
BankBoston N.A., to which the Facility Lenders have succeeded by assignment, and
(ii) a Loan and Security Agreement, dated December 31, 1996, as amended from
time to time, by and among the Company, certain of its Subsidiaries and
BankBoston N.A., to which the Facility Lenders have succeeded by assignment.
Schedule II
to the
Deutsche Lenders Intercreditor Agreement
Notice Address for Other Existing Lenders
Bear, Xxxxxxx & Co., Inc.
if to Bear, 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;
Deutsche Lenders
if to Aspen Funding, to: Aspen Funding Corp. c/o Amacar Group, 0000X Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn.: Xxxxxxx Xxxxxxx, tel.: (704)
000-0000, fax: (000) 000-0000, with a copy to: Deutsche Bank A.G., as agent, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxx Xxxxxxx, Tel.: (212)
000-0000, Fax: (000) 000-0000 and Xxxxxxx Xxxxx, Tel.: (000) 000-0000, Fax:
(000) 000-0000; and with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxx, Esq., Tel: (000) 000-0000,
Fax: (000) 000-0000
if to German American Corporation, to: German American Capital Corporation, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxx Xxxxxxxxxxx, Tel.:
(212) 000- 0000, Fax: (000) 000-0000, with a copy to: Deutsche Bank A.G., as
agent, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxx Xxxxxxx, Tel.:
(000) 000-0000, Fax: (000) 000-0000, and Xxxxxxx Xxxxx, Tel.: (000) 000-0000,
Fax: (000) 000-0000; and in either case described in clause (i) or (ii) above;
with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn.: Xxxxx Xxxxxxx, Esq., Tel: (000) 000-0000, Fax: (000) 000-0000
BankBoston Facility
if to the Facility Lenders, as successors in interest to BankBoston, to: the
address provided for notice to the Facility Lenders pursuant to Section 19 of
the foregoing Agreement
