Exhibit 10.84
SECOND AMENDED AND RESTATED FORBEARANCE
AND INTERCREDITOR AGREEMENT
(BankBoston Debt)
SECOND AMENDED AND RESTATED FORBEARANCE AND INTERCREDITOR
AGREEMENT, dated as of November 10, 1999, between IMC MORTGAGE COMPANY, a
Florida corporation (the "Company"), GREENWICH STREET CAPITAL PARTNERS II, L.P.,
a Delaware limited partnership ("GSCP"), GREENWICH FUND, L.P., a Delaware
limited partnership, GSCP OFFSHORE FUND, L.P., a Cayman Islands exempted limited
partnership, GREENWICH STREET EMPLOYEES FUND, L.P., a Delaware limited
partnership, TRV EXECUTIVE FUND, L.P., a Delaware limited partnership (each a
"Facility Lender" and collectively, the "Facility Lenders"), and the Facility
Lenders as successors to the right, title and interest of BANKBOSTON, N.A. in,
to and under the Existing Loan Documents (as defined below) (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
October 12, 1998, amended by Amendment No. 1 thereto, dated as of February 11,
1999 (as the same may be further 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 have extended to the Company
loans in the aggregate principal amount of $38,000,000 (the "Loans"), subject to
the terms and conditions set forth in the Loan Agreement, which Loans are
evidenced by the Notes and entitled to the benefit of certain guarantees and
security provided to the Facility Lenders or to GSCP, as collateral agent (the
"Collateral Agent") under certain of the other Loan Documents.
B. The Facility Lenders have made certain additional loans to
the Company pursuant to Note Purchase and Amendment Agreement No. 6, dated as of
October 18, 1999, in the original principal amount of $61,500,000 (the "Facility
Lender Advances") to fund certain monthly delinquent interest servicing advances
in respect of the Company's securitizations.
C. Pursuant to (i) a 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 the Existing Lenders as successors to BankBoston, N.A. (the
"Bridge Loan Agreement"), (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 the Existing Lenders as successors to BankBoston, N.A. (the
"1996 Agreement", and together with the Bridge Loan Agreement, the "Existing
Loan Agreements"), and other related agreements in favor of the Existing Lenders
as successors to BankBoston, N.A. (collectively with the Existing Loan
Agreements, the "Existing Loan Documents"), the Existing Lenders have agreed to
provide financing to the Company from time to time, to enable the Company to
finance certain mortgage loans and for other purposes provided therein; and the
Company and certain of its Subsidiaries have granted a security interest in the
Collateral (as hereinafter defined) in order to secure their respective
obligations under the Existing Loan Documents (the "Existing Obligations").
D. The Facility Lenders have succeeded by assignment to the
right, title and interest of BankBoston N.A. in, to and under the Existing Loan
Agreements and have assumed the obligations of BankBoston, N.A. thereunder and
under the Original Intercreditor Agreement (as hereinafter defined).
E. The Company entered into an Acquisition Agreement (the
"Acquisition Agreement"), dated as of February 19, 1999, by and among each of
the Facility Lenders and the Company, pursuant to which the Company would issue
and deliver to the Facility Lenders common stock, par value $0.001 per share, of
the Company representing approximately 93.5% of the Common Stock outstanding
after such issuance.
F. The Company has (i) terminated the Acquisition Agreement
and (ii) entered into an Asset Purchase Agreement, dated as of July 13, 1999, as
amended by Addendum No. 1 thereto, dated September 7, 1999 and a Delinquency and
Servicing Advance Purchase Agreement (collectively, the "Asset Purchase
Agreement"), between the Company and CitiFinancial Mortgage Company, a Delaware
corporation ("CMC"), pursuant to which CMC would acquire certain assets and
assume certain liabilities of the Company (the "Asset Sale").
G. The Company, the Facility Lenders and BankBoston N.A. have
previously entered into a Forbearance and Intercreditor Agreement, dated as of
October 12, 1998, amended and restated by the Amended and Restated Forbearance
and Intercreditor Agreement, dated as of February 17, 1999 between the Company
and certain of the Existing Lenders as successors in interest to BankBoston N.A.
and amended further by Amendment No. 1 to Amended and Restated Intercreditor
Agreements, dated as of March 31, 1999, and letter agreements dated as of July
15, 1999, August 11, 1999, September 14, 1999 and October 15, 1999 (as so
amended and restated, the "Original
Intercreditor Agreement"). In connection with the entry by the Company into the
Asset Purchase 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 "Agreement").
H. The Company issued a Promissory Note, dated as of July 1,
1997, in the amount of $12,975,864.30 (as amended and including any additional
Promissory Notes delivered pursuant to the Xxxxxxxx Intercreditor Agreement
(defined below), the "NH Note") to Xxxx Xxxxxxxx ("NH"), and a Promissory Note,
dated as of July 1, 1997, in the amount of $1,441,762.70 (as amended and
including any additional Promissory Notes delivered pursuant to the Xxxxxxxx
Intercreditor Agreement, the "JH Note", and, together with the NH Note, the
"Notes") to Xxxxxxx X. Xxxxxxxx ("JH", and together with NH, the "Henschels"),
pursuant to which the Company has certain unsecured payment obligations to the
Henschels (the "Xxxxxxxx Note Obligations").
I. The Company, the Facility Lenders, NH and JH have entered
into an Intercreditor Agreement, dated as of the date hereof (the "Xxxxxxxx
Intercreditor Agreement"), pursuant to which the Henschels have agreed not to
take certain actions specified therein and the Company has agreed to make
certain payments to amortize the Xxxxxxxx Note Obligations as provided therein.
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 Lenders agrees, subject to the terms of this Agreement, that for
the Standstill Period, it shall not:
(i) file or join in the filing of any involuntary petition in
bankruptcy with respect to the Company or its Subsidiaries, or initiate
or participate in any similar proceedings for the benefit of creditors,
including any proceeding for the appointment of a trustee, receiver,
conservator or liquidator of the Company or its Subsidiaries or any
portion of its assets;
(ii) seek to collect or enforce by litigation or otherwise,
any payment
obligations under the Existing Loan Documents or the Loan Documents;
provided that nothing in this Section 1 shall prohibit the Facility
Lenders from exercising their Exchange Option;
(iii) make any Margin Calls or other demands for payment in
respect of, or additional collateral to secure the Existing
Obligations, provided, however, that this clause shall not adversely
affect the right of the Existing Lender to take any actions to
preserve, protect or perfect its liens in the Collateral;
(iv) declare a default or event of default under, or exercise
or enforce any right or remedy under, or accelerate the maturity of any
Existing Obligation or Loan under, any Existing Loan Document or Loan
Document; or
(v) seek to attach, sequester or otherwise proceed against any
of the Collateral.
(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 any Existing Loan
Agreement to make to the Existing Lender any scheduled payment of
interest, which failure continues unremedied for two days;
(ii) any intentional fraud or misrepresentation by
the Company;
(iii) immediately in the event any Other Existing
Lender takes any of the actions described in Section 1(a) of its Other
Intercreditor Agreement or either of the Henschels takes any of the
actions described in Section 1(a) of the Xxxxxxxx Intercreditor
Agreement, or, in the case of the Existing Lenders, immediately in the
event any Facility Lender takes any of hte actions described in Section
1(a) of this Agreement, or, in the case of the Facility Lenders,
immediately in the event the Existing Lenders take any of the actions
described in Section 1(a) of this Agreement or either of the Henschels
takes any of the actions described in Section 1(a) of the Xxxxxxxx
Intercreditor Agreement, in each case whether or not it shall have
given notice of termination of the Standstill Period;
(iv) a Change of Control or payment of the Take-Out
Premium, except to the extent payable in accordance with Section 5 of
the Other
Intercreditor Agreements;
(v) an event shall occur and be continuing for a
period of ten Business Days which permits (x) any holder of
indebtedness for borrowed money of the Company or the Designated
Subsidiary outstanding (other than the Company or any Creditor or
Residential Funding Corporation) to accelerate the maturity of such
indebtedness or ( y) any holder of such indebtedness or any holder of
any guarantee or other obligation of the Company or the Designated
Subsidiary to exercise remedies with respect to property of the Company
or the Designated Subsidiary (other than the Company or Residential
Funding Corporation solely with respect to the Mortgage Loans held by
it as collateral for its existing loan), 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;
(vi) the Company shall, at any time on or after the
date of consummation of the Asset Sale, repay all or any portion of the
Loans, except any such repayment of the Loans in accordance with
Section 5 of the Other Intercreditor Agreements;
(vii) The Company shall fail to make any payment
required to be made in accordance with Section 5 or 14 or 15, as
applicable, of the Other Intercreditor Agreements;
(viii) The Company shall incur or pay any Operating
Expenses (as defined in the Other Intercreditor Agreements) or incur or
pay any obligations, except as expressly contemplated hereby or by the
Monthly Statement (as defined in the Other Intercreditor Agreements);
and
(ix) The Company shall breach the covenant set forth
in Section 8(g) or Section 5(h) of the Other Intercreditor Agreements.
(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 Designated 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 Designated 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
Designated 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 Designated
Subsidiary shall file an answer admitting the material allegations of
a petition filed against the Company or such Designated Subsidiary 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 Designated 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 Designated Subsidiary or of any substantial part
of their respective property, or any substantial part of the property
of the Company or any Designated 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 Designated 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 Designated 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 or any Designated Subsidiary, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the
Company or any Designated Subsidiary or of any substantial part of
their respective 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. 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 Pledged Loan,
which is sold by the Company (i) to the Existing Lenders for a purchase price
not less than the advance rate in respect of such mortgage (or, the case of any
Sixty Day Mortgage Loans or Ninety Day Mortgage Loans, at not less than 80% or
68.6% of the principal outstanding on such Mortgage Loans, respectively) in
respect of such Pledged Loan, (ii) pursuant to Section 8(f) of the Other
Intercreditor Agreements or (iii) pursuant to a securitization of Mortgage
Loans.
Section 3. Acknowledgment and Priorities. (a) The Existing
Lenders hereby acknowledge and consent 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, to
the extent of the Existing Obligations, over any security interest in such
Collateral granted pursuant to this 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 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, or the Collateral Agent under the Security
Agreements now or hereafter may be a party; and
(iv) the rules for determining priority under the U.C.C. or
other laws governing the relative priorities of secured creditors.
(b) The Existing Lenders hereby agree, and the Company
acknowledges, that, promptly following the expiration of 91 days after 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 Lenders may hold it
for the benefit of such other creditor and the Facility Lenders as their
interests may appear. If the Existing Lenders have elected not to hold such
Collateral following payment in full of the Existing Obligations, it shall
promptly forward any Collateral, including any books and records (including,
without limitation, computer files, printouts and other computer materials and
records) relating to the Collateral, as well as all proceeds and products of
such Collateral, to the Collateral Agent, provided that if such Collateral is
then subject to the prior lien of another creditor, the Existing Lenders 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.
(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 Securitization Receivables to the Company or any
Subsidiary, except as expressly provided herein.
(d) Each of the parties hereto consents to the transactions
contemplated by the Asset Purchase Agreement.
Section 4. Reserved Rights. Notwithstanding anything in this
Agreement to the contrary, but subject to Section 8 hereof, the Company and the
Facility Lenders agree that this Agreement (except as expressly provided in
Section 8) shall in no manner impair any right of the Existing Lenders or the
Facility Lenders under any Existing Loan Agreement or the Loan Agreement,
respectively, to enforce any condition precedent to any obligation it may have
thereunder to make future Advances or Facility 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 the Existing Lenders 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 and all rights of the Facility Lenders to make
Facility Advances or not make Facility Advances shall not be affected by this
Agreement, except as otherwise provided in Section 8 hereof.
Section 5. Amortization. During the Standstill Period, the
Company and the Creditors shall perform their respective obligations under
Section 5 of the Other Intercreditor Agreements.
Section 6. Conditions 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, and the
Company, the Facility Lenders and the Henschels shall have entered into the
Xxxxxxxx Intercreditor Agreement and the Company, the Creditors and the
applicable escrow agents shall have entered into the Tax Escrow Agreement, the
NLC Escrow Agreement and the Securitization Escrow Agreement. The Company shall
furnish the Existing Lender complete and correct copies of each such Other
Intercreditor Agreement and the Xxxxxxxx Intercreditor Agreement within one
business day of its execution.
Section 7. Certain Definitions.
"Advance" means any advance made by the Existing Lenders under
the Existing Loan Agreements.
"Available Cash Flow from Securitization Receivables" means
the proceeds, net of any costs of collection, to the Company or any Subsidiary
of any distribution with respect to, or prepayment of any Securitization
Receivables owned by the Company or any Subsidiary and pledged as security for,
or sold by the Company or any Subsidiary subject to an obligation to repurchase,
obligations owing to any Other Existing Lender.
"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
Asset Sale):
(i) the Company consummates any sale, lease, exchange
or other disposition of all or substantially all of the assets
of the Company, in any transaction or series of transactions
not in the ordinary course of business and not contemplated by
a Business Plan; or
(ii) the Company engages in a merger, consolidation
or similar business combination with any third party.
"Collateral" means (i) all of the Company's or any
Subsidiary's rights to payment of money arising out of, related to, or created
in connection with (whether such rights are classified under the applicable
Uniform Commercial Code as general intangibles, accounts, certificated
securities, uncertificated securities or otherwise): (a) all Securitization
Receivables and any other interest of the Company or any Subsidiary, in the
Securitization Transactions (other than cash paid to or for the account of the
Company in respect of the transfer by the Company or any Subsidiary of mortgage
loans to the Trustee in respect of a Securitization Transaction) and similar
rights or interests of the Company or any Subsidiary, (b) all payments to be
paid to the Company or any Subsidiary pursuant to such Securitization
Transactions (other than cash paid to or for the account of the Company in
respect of the transfer by the Company of mortgage loans to the Trustee in
respect of a Securitization Transaction) and (c) all Servicing Fees, Servicing
Rights, Servicing Advances and any similar rights or interests of the Company or
any Subsidiary in respect of any of the foregoing (a) through (c); (ii) all
business records, computer tapes, software, microfiche, or recorded data of any
kind or nature, regardless of the medium, necessary to identify, locate and
collect the foregoing; (iii) all cash from time to time deposited in any deposit
account of any of the Company or any Subsidiary with the Existing Lender, in
connection with this Agreement, including, without limitation, the Loan
Collateral Account; (iv) all other collateral described in Schedule II hereto,
including, without limitation, all accounts, inventory, equipment, general
intangibles, investment property (including the capital stock of the
Subsidiaries), (v) 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 (vi) any and all replacements,
substitutions, distributions on or proceeds of any and all of the foregoing.
"Common Stock" means the Company's common stock, par value
$0.001 per share.
"Creditor" means any of the Facility Lenders, the Existing
Lenders or any Other Existing Lender.
"Delinquent Mortgage Loan" means any Mortgage Loan which, as
of any date of determination, is more than 90 days delinquent in payment of
principal or interest due thereunder.
"Designated Subsidiary" means National Lender Center until 366
days after the date on which any remaining advances made by the Company to
National Lending Center, Inc. shall have been repaid or written off and the net
proceeds thereof paid to the escrow agent under the NLC Escrow Agreement
pursuant to Section 5(h) of the Other Intercreditor Agreements.
"Facility Advance" means any advance made by the Facility
Lenders under the Loan Agreement.
"Loan Collateral Account" means the demand deposit account
established by the Company with the Existing Lenders pursuant to the Existing
Loan Agreements for collection of the cash flow from the Collateral (other than
cash flow from Servicing Rights) and into which the Company has instructed all
relevant parties to deposit all Cash Flow from Collateral (other than cash flow
from Servicing Rights).
"Margin Call" means the right of the Existing Lenders or the
Facility Lender to give notice to require the Company to transfer to the
Existing Lenders or the Facility Lender cash or additional Collateral.
"Mortgage Loan" means any mortgage loan originated or
purchased by the Company or any Subsidiary.
"Net Proceeds of Sale of Securitization Receivables" means the
proceeds, net of any costs of sale or disposition, realized by the Company or
any Subsidiary from any sale, lease or other disposition of any Securitization
Receivables.
"Ninety Day Mortgage Loans" means Mortgage Loans financed
(including by purchase subject to a repurchase obligation) by a Creditor which
are more than 90 days delinquent on November 5, 1999.
"NLC Escrow Agreement" means an escrow agreement among the
Company, each of the Creditors, and a bank acting as escrow agent, reasonably
acceptable to each Creditor, which agreement is satisfactory in form and
substance to each Creditor, providing for the deposit of the proceeds of the
warehouse financing to be provided by the Company to National Lending Center,
Inc. upon the consummation of the transactions contemplated by the Asset
Purchase Agreement into escrow thereunder.
"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.
"Other Residual Lenders" means the Other Existing Lenders
which are owed Residual Debt.
"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan
that is pledged by the Company or its Subsidiaries and accepted by the Existing
Lenders in connection with an Advance.
"Pledged MBS" means any residual, subordinated or interest
strip class of asset-backed security (i) issued in connection with a
securitization in which the Existing Lenders or their designee acted as lead or
co-lead underwriter or placement agent and (ii) pledged by Company and its
Subsidiaries and accepted by the Existing Lenders in connection with an Advance.
"Securitization Receivables" means all rights of the Company
or any Subsidiary to receive payments (including, without limitation, assets
classified as residual strips, certificates, or interest only strips on the
Company's financial statements) under a Securitization Transaction but excluding
rights to receive payments in respect of Servicing Fees.
"Securitization Escrow Agreement" means an escrow agreement
among the Company, each of the Creditors, and a bank acting as escrow agent,
reasonably acceptable to each Creditor, which agreement is satisfactory in form
and substance to each Creditor, providing for the deposit of the Securitization
Escrow Amount (as defined in the Other Intercreditor Agreements) upon the
consummation of the transactions contemplated by the Asset Purchase Agreement
into escrow thereunder.
"Securitization Transaction" means any transaction, however
named, between the Company or any Subsidiary and any one or more purchasers
and/or investors which provides for the monetization of a discrete pool of
mortgage loans and/or mortgage notes through debt securities or ownership
interests issued by a special purpose vehicle supported or backed by mortgage
loans and/or mortgage notes that have been transferred to the special purpose
vehicle by the Company or any such Subsidiary.
"Servicing Advances" means all remittances advanced by the
Company or any Subsidiary to a Trustee under the Company's or any such
Subsidiary's servicing agreement, and the right to receive a payment of such
advances.
"Servicing Fees" means all payments arising out of, related
to, or created in connection with a Person's duties and obligations as a
servicer pursuant to the terms of a Securitization Transaction.
"Servicing Rights" means all of any Company's and any
Subsidiary's rights to payment arising out of, related to, or created in
connection with its role as servicer under any of the Securitization
Transactions or in connection with its performance of a similar role with
respect to any other transaction or arrangement.
"Seller's Guide" means the "IMC Mortgage Company Client
Operations Manual", together with the underwriting guidelines of the Company and
its Subsidiaries, a true and correct copy of which was previously provided to
the Existing Lender by the Company and its Subsidiaries.
"Sixty Day Mortgage Loans" means Mortgage Loans financed
(including by purchase subject to a repurchase obligation) by a Creditor which
are more than 60 days but not more than 90 days delinquent on November 5, 1999.
"Standstill Period" means a period ending on the first to
occur of (i) the repayment in full of all Existing Obligations, all obligations
owed to the Facility Lenders and the Xxxxxxxx Note Obligations, (ii) termination
of the Standstill Period in accordance with Section 1(b) or 1(c) hereof, (iii)
termination of the Asset Purchase Agreement or (iv) December 3, 1999, if the
closing of the Asset Sale shall not have occurred by such date.
"Subsidiary" or "Subsidiaries" means those Subsidiaries which
are
signatories hereto and any other entities which hereafter become a subsidiary of
the Company (or of any of the Company's Subsidiaries).
"Tax Escrow Agreement" means an escrow agreement among the
Company, each of the Creditors, and a bank acting as escrow agent, reasonably
acceptable to each Creditor, which agreement is satisfactory in form and
substance to each Creditor, providing for the deposit of the Tax Escrow Amount
(as defined in the Other Intercreditor Agreements) upon the consummation of the
transactions contemplated by the Asset Purchase Agreement into escrow
thereunder.
"Trustee" means the trustee under the trust established for
the benefit of the purchasers under a Securitization Transaction.
"Warehouse Facility" means any loan agreement, repurchase
agreement or other credit facility for the purpose of financing the purchase or
ownership of Mortgage Loans by the Company or any Subsidiary.
"Wet Mortgage Loan" means any residential mortgage loan
originated by the Company and its Subsidiaries in accordance with the Seller's
Guide, with respect to which all of the related documents required to be
delivered in connection with any Advance have not been deposited with the
custodian on or prior to the related Advance Date.
Section 8. Notice of Advances under the Loan Agreement, Etc.
(a) The Company shall not be entitled to receive, and the Existing Lenders shall
have no obligation to make any loans and advances under any of the Existing Loan
Documents.
(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 Section 1(b) hereof.
(d) The Company shall give the Existing Lenders prompt written
notice of the entering into any amendment to the Asset Purchase Agreement and
the closing of the Asset Sale.
(e) Until all of the Company's obligations under this
Agreement, the Other Intercreditor Agreements, the Existing Loan Documents and
the Loan Agreement have been satisfied in full, the Company shall not conduct
any business or engage in any activities other than (a) liquidating its assets
in an orderly fashion and performing its obligations under (i) the Asset
Purchase Agreement, (ii) this Agreement (including its obligations under the
Existing Loan Documents), (iii) the Other Intercreditor Agreements and the
Xxxxxxxx Intercreditor Agreement and the agreements evidencing the indebtedness
owing to such other Creditors and the Henschels, (iv) the Tax Escrow Agreement,
the NLC Escrow Agreement and the Securitization Escrow Agreement, (v) any other
agreements existing on the date hereof and (v) satisfying its other obligations
and liabilities, (b) transacting any other lawful business under its certificate
of incorporation and by-laws that is incident, necessary and appropriate to
accomplish the foregoing, including defending any actions or proceedings. The
Company shall maintain not more than a commercially reasonable number of
employees necessary to conduct the foregoing activities. The Company shall not
incur any indebtedness for borrowed money other than liabilities incurred in the
ordinary course of its business (as such business is limited under the preceding
provision), and not grant any new liens (except as may be incidental to the
foregoing permitted activities).
Section 9. Acknowledgment of Obligations. The Company and each
Subsidiary acknowledges that its obligations under the Existing Loan Documents
and the liens on the Collateral securing the Existing Obligations remain in full
force and effect, that the Existing Obligations under the 1996 Agreement and the
Bridge Loan Agreement matured on October 10, 1998 and have not been paid, and
that the Company and each such Subsidiary have no defenses, counterclaims or
offsets to its obligations under the Existing Loan Documents and that such liens
are valid, perfected and enforceable. The Company and each Subsidiary 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, each Subsidiary 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, any defaults by the
Company under the Existing Loan Documents or the Loan Documents except to the
extent expressly provided herein and shall not be construed as a waiver or
consent to any future action on the part of the Company or any Subsidiary that
would require a waiver or consent of the Existing Lenders or the Facility
Lenders, respectively, except to the extent expressly provided herein. The
Company and each Subsidiary hereby releases the Existing Lenders, their
respective officers, directors and participants from any and all claims in
respect of the Existing Loan Documents and in respect of actions taken or not
taken in connection therewith on or prior to the date of execution and delivery
hereof, excluding, however, any obligation under any agreement by such person
for the payment of money, return of property or any contractual obligations.
Effective upon the closing of the Asset Sale and the receipt by the Creditors of
the payments to be received hereunder from the proceeds of the Asset Sale, the
Existing Lenders hereby releases the executive officers and the directors of the
Company from any and all claims in respect of the Existing Loan Documents and in
respect of the actions taken or not taken in connection therewith on or prior to
the date of execution and delivery hereof, excluding, however, any obligations
under any agreement by such person for the payment of money, return of property
or any contractual obligations, and also excluding any claims in respect of
fraud or intentional misconduct.
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. 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 COMMONWEALTH OF
MASSACHUSETTS 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 XXX XXXX XX XXX XXXX, XXXXX XX XXX XXXX
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 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 Asset Purchase
Agreement and the Loan Agreement, and monitoring performance of all related
documents, such reimbursement to be made, promptly and in any event within 30
days after presentation of an invoice therefor accompanied by such documentation
with respect to such costs and expenses in reasonable detail as the Company may
reasonably request. If such costs and expenses are not paid by Company within 30
days of submission, the Existing Lender may pay such costs and expenses from
Available Cash Flow from Securitization Receivables and payments on Pledged
Loans, in which event appropriate adjustments shall be made to such Existing
Lender's and each Other Residual Lender's Allocable Share of Available Cash Flow
from Securitization Receivables as if such costs and
expenses were paid by the Company as Operating Expenses.
Section 15. 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 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 Facility Lenders, or the Existing 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: (000) 000-0000, Fax: (000) 000-0000; with a copy to Debevoise &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxxxx, Esq.
, Tel: (000) 000-0000, Fax: (000) 000-0000; and (b) if to the Company, IMC
Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attn.: President,
Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to Xxxxxxxx X. Xxxxxx,
000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Tel: (000) 000-0000, Fax: (904)
000-0000, and if to any of the Other Existing Lenders, to such person and at the
address and facsimile number provided in Schedule III hereto. 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 Schedule III 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 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, including any successor of the
Company by merger or any entity which purchases all or substantially all of the
assets of the Company, (other than pursuant to the Asset Sale) and to each of
the other Creditors, and, as to Section 3(d) hereto, CMC, 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 18. Counterparts; Section Headings. This Agreement may
be
executed in any number of counterparts, each of which is an original, but all of
which together constitute but one instrument. Except as otherwise indicated,
references herein to any "Section" means a "Section" of this Agreement, and
the section headings in this Agreement are for purposes of reference only and
shall not limit or define the meaning hereof.
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:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET
EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
their General Partner
By: /s/
--------------------------------
Name:
Title:
This Forbearance and Intercreditor Agreement is hereby acknowledged and agreed
to by:
IMC CORPORATION OF AMERICA
IMC CREDIT CARD, INC.
IMC MORTGAGE COMPANY CANADA, LTD.
AMERICAN HOME EQUITY CORPORATION
IMC INVESTMENT CORPORATION
IMC INVESTMENT LIMITED PARTNERSHIP
ACG FINANCIAL SERVICES (IMC), INC.
AMERICAN MORTGAGE REDUCTION, INC.
CENTRAL MONEY MORTGAGE CO. (IMC), INC.
COREWEST BANC
EQUITY MORTGAGE CO. (IMC), INC.
IMCC INTERNATIONAL, INC.
MORTGAGE AMERICA (IMC), INC.
NATIONAL LENDING CENTER, INC.
NATIONAL LENDING CENTER TILT, INC.
NATIONAL LENDING GROUP, INC.
RESIDENTIAL MORTGAGE CORPORATION (IMC), INC.
By: /s/
---------------------------------
Name:
Title:
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
BEAR XXXXXXX HOME EQUITY TRUST
By: /s/
---------------------------------
Name:
Title:
BEAR XXXXXXX INTERNATIONAL LIMITED
By: /s/
---------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: /s/
---------------------------------
Name:
Title:
Schedule I to the Second Amended and Restated
Forbearance and Intercreditor Agreement
Other Existing Lenders
Master Repurchase Agreement, dated as of March 29, 1996, as amended from time to
time, by and among Bear Xxxxxxx Home Equity Trust and the Company and certain of
the Company's Subsidiaries.
Master Repurchase Agreement, dated as of May 1, 1997 Between Bear, Xxxxxxx
International Limited and Industry Mortgage Company, L.P.
Institutional Account Agreement, dated October 23, 1996, between and among
Industry Mortgage Company, L.P. and Bear Xxxxxxx.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as lender.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as successor by assignment to Aspen Funding Corp., as
lender
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.
Schedule II to the Second Amended and Restated
Forbearance and Intercreditor Agreement
Additional Collateral
All of the collateral granted under the following agreements:
1. 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.;
2. 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.;
3. Loan Agreement, dated October 15, 1998, by and among the
Company, certain of its Subsidiaries and BankBoston, N.A. ;
4. Pledge and Security Agreement, dated October 14, 1998, between
the Company and BankBoston, N.A.;
5. Stock Pledge Agreement, made as of December 31, 1997, by and
between the Company and BankBoston, N.A., as amended by the
First Amendment to Stock Pledge Agreement, dated October __,
1998; and
6. Security Agreement, made October 10, 1997, by the Company and
certain of its Subsidiaries in favor of BankBoston, N.A., as
amended by the First Amendment to Security Agreement made
October __, 1998, between BankBoston, N.A., the Company and
certain of its Subsidiaries.
Schedule III to the Second Amended and Restated
Forbearance and 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 German American Corporation, 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
Xxxxx Xxxxxx
if to Xxxxx Xxxxxx, to: PaineWebber Real Estate Securities, Inc., 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxxxxxxxxxx, Tel: (212)
000-0000, Fax: (000) 000-0000; with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxxx X. Xxxxxx, Esq., Tel:
(000) 000-0000; Fax: (000) 000-0000
