AMENDED AND RESTATED INTERCREDITOR AGREEMENT
(Xxxxx Xxxxxx)
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 partnership, GSCP OFFSHORE FUND, L.P.,
a Cayman Islands exempted limited partnership (each a "Facility Lender" and
collectively, the "Facility Lenders"), and XXXXX XXXXXX REAL ESTATE SECURITIES
INC., a Delaware corporation (the "Existing Lender"). Capitalized terms used in
this Agreement without definition have the meanings given to them in the Loan
Agreement (as hereinafter defined) as such terms are defined in the Loan
Agreement on the date hereof (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 (the "Initial Loan Agreement"), between the Company, as borrower, and
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 a Loan and Security Agreement, dated as of February 28,
1998, as amended from time to time, by and among the Company and certain of its
Subsidiaries, (the "Existing Loan Agreement"), and other related agreements in
favor of the Existing Lender (collectively with the Existing Loan Agreement, the
"Existing Loan Documents"), the Existing Lender has agreed to provide financing
to the Company from time to time, to enable the Company to finance certain
mortgage loans and for other purposes provided therein; and the Company and
certain of its Subsidiaries have granted a security interest in the Collateral
(as hereinafter defined) in order to secure their respective obligations under
the Existing Loan Documents (the "Existing Obligations").
C. 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 Lender 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 Lender 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 Lender
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 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 Lender or
the Facility Lenders by written notice to the Company and each other Creditor
upon the occurrence of any of the following:
(i) a failure by the Company under the Existing Loan Agreement to make
to the Existing Lender any scheduled payment of interest, which failure
continues unremedied for two days, or any payment of principal due in
respect of payoffs or prepayments of mortgage loans comprising any portion
of the Collateral 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 Lender, 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 the 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(f) 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 the Existing Lender for a purchase
price not less than the advance rate in respect of such mortgage.
(b) The Facility Lenders agree for the benefit of the Existing Lender
that during the continuance of the Standstill Period and thereafter until the
earlier of (i) the satisfaction of the Existing Obligations in full, (ii) the
exercise by the Existing Lender of any right to attach, sequester, foreclose or
otherwise exercise remedies with respect to the Collateral, and (iii) 180 days
after the expiration or earlier termination of the Standstill Period, the
Facility Lenders will not seek to attach, sequester, foreclose, 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) The Existing Lender
hereby acknowledges and consents to the entrance by the Company into the Loan
Documents and the granting of the lien in the Collateral granted pursuant to
Section 2; provided, however, notwithstanding anything to the contrary contained
in the Loan Agreement, the Notes or any of the Loan Documents, 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 Agreement 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, or the Collateral Agent under the Security
Documents now or hereafter may be a party, and
(iv) the rules for determining priority under the U.C.C. or other laws
governing the relative priorities of secured creditors.
(b) The Existing Lender hereby agrees that, following payment in full
of all the Existing Obligations hereunder, any Collateral, including any books
and records (including, without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, held by it shall be held for the
benefit of the Facility Lenders, provided that if such Collateral is then
subject to the prior lien of another creditor, the Existing Lender may hold it
for the benefit of such other creditor and the Facility Lenders as their
interests may appear. If the Existing Lender has elected not to hold such
Collateral following payment in full of the Existing Obligations, it shall
promptly forward any Collateral, including any books and records (including,
without limitation, computer files, printouts and other
computer materials and records) relating to the Collateral, as well as all
proceeds and products of such Collateral, to the Collateral Agent.
(c) Nothing contained in this Agreement shall alter or impair the
Existing Lender's 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 Lender has any obligation under the Existing Loan
Documents or otherwise to return any proceeds received on a sale or deemed sale
of any Pledged MBS or Pledged Loan 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 Lender under the
Existing Loan Agreement to enforce any condition precedent to any obligation it
may have thereunder to make future Advances to the Company and its Subsidiaries,
nor shall this Agreement limit the right of the Existing Lender to make Margin
Calls in respect of the hedging transactions with respect to U.S. treasury
securities that the Company may have entered into with the Existing Lender
outside of the Existing Loan Documents. All rights and obligations of the
Existing Lender under the Existing Loan Documents to make Advances or not make
Advances shall not be affected by this Agreement.
(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 the Existing Lender or any of its Affiliates incurred from and
after the date hereof or (ii) limit the rights of the Existing Lender or any
Affiliate thereof (x) to receive principal and/or interest at the applicable
mortgage rate on mortgage loans purchased by the Existing Lender or any such
Affiliate from the Company or any of its Subsidiaries or (y) to sell mortgage
loans to the Company or any of its Subsidiaries, in each case including without
limitation the rights of the Existing Lender under (A) the Mortgage Loan
Purchase Agreement, dated as of October 9, 1998, among the Existing Lender, the
Company and certain of its Subsidiaries and (B) the Mortgage Loan Purchase
Agreement, dated as of December 9, 1998, between the Company and the Existing
Lender.
Section 5. 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 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 MBS's generating such Available
Cash Flow from Securitization Receivables and shall remit the balance of such
Available Cash Flow from Securitization Receivables to the Company.
(b) Upon consummation of the Merger, the Company shall (i) repay
$5,000,000 of the Existing Obligations to be applied to the principal amount
outstanding under the Existing Loan Documents and (ii) repay the principal
amount outstanding under the Existing Loan Documents in respect of each Pledged
Loan financed thereunder which as of the date of consummation of the Merger is a
Delinquent Mortgage Loan 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 the date which is four months after the date of
consummation of the Merger, 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 Increased Mortgage Loan Differential.
(c) 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 Pledged Loan
financed thereunder (i) which during such calendar month and after the date of
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, and (ii) which after the date of consummation of the Merger
first became, and as of the last day of such calendar month had remained for a
period of four months, a Delinquent Mortgage Loan in an amount equal to the
Increased Mortgage Loan Differential.
(d) The Company shall immediately repay the amount outstanding under
the Existing Loan Documents by the amount equal to the Net Proceeds of Sale of
Securitization Receivables in respect of any Pledged MBS sold or otherwise
disposed of by the Company or any Subsidiary. The Company shall not sell or
otherwise dispose of any Pledged MBS without the Existing Lender's consent and
without reaching agreement
with the Existing Lender as to an appropriate reduction of the Minimum Repayment
Amount, such consent and agreement not to be unreasonably withheld or delayed by
the Existing Lender or the Company. The parties agree that it would be
reasonable for the Existing Lender to withhold its consent to the sale of any
Pledged MBS 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 MBS should be higher or the Pledged MBS has not been
adequately marketed.
(e) Within one day following the end of each calendar month commencing
with the calendar month in which the effective date hereof occurs, 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 (i), (ii) or (iii) of the definition
of "Minimum Repayment Amount" ending at the end of such calendar month over the
aggregate amount applied to such repayment in respect of such period pursuant to
Section 5(a) and this Section 5(e).
(f) 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.
(g) The Existing Lender or an affiliate thereof designated by the
Existing Lender shall have the right, subject to the provisions of the following
sentence to act as co-lead or lead managing underwriter or placement agent with
respect to any and all mortgage-backed or asset-backed securities offerings
involving loans or other financial assets now owned or hereafter acquired or
originated by the Company or any Subsidiary thereof during the Standstill
Period, provided that the right to act as a lead managing underwriter or
placement agent may, at the Company's discretion, be shared equally, in the
aggregate as to all such offerings, among the Existing Lender (or such
affiliate) and each other lender which is then a provider of in excess of
$200,000,000 of warehouse financing to the Company and its Subsidiaries. The
right of the Existing Lender (or such affiliate) pursuant to this Section 5(g)
is subject to the condition that the Existing Lender (or such affiliate) has
outstanding, at any time during the calendar quarter in which such offering
occurs, at least $200,000,000 of warehouse financing to the Company and provides
residual financing on market terms on those offerings on which they act as a
lead underwriter or agent. The Company shall compensate the Existing Lender for
acting as underwriter or agent in accordance with prevailing market terms at the
time of any such offering.
(h) 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(h), the Company will promptly apply such
excess to the repayment of other Advances then outstanding.
(i) 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. 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. The Company shall furnish
the Existing Lender complete and correct copies of each such Other Intercreditor
Agreement within one business day of its execution.
Section 7. Certain Definitions.
"Advance" means any advance made by the Existing Lender under the
Existing Loan Agreement.
"Advance Rate" means the percentage rate to be applied to the Market
Value of any Eligible Asset, at which rate Lender may make an Advance to the
Borrower or its Subsidiaries.
"Applicable Percentage" means (i) for January 1999, (x) in respect of
Pledged MBS's relating to the Company's Series 1998-7 transaction, 53.34% and
(y) with respect to Pledged MBS's relating to all other transactions, 26.6%,
(ii) for each calendar month commencing on or after February 1, 1999 to the date
of consummation of the Merger, (x) in respect of Pledged MBS's relating to the
Company's Series 1998-7 transaction, 80% and (y) with respect to Pledged MBS's
relating to all other transactions (A) during the first three calendar months of
such period, 40% and (B) with respect to the balance, if any, of such period,
80%, (iii) for the first three calendar months commencing on or after the date
of the consummation of the Merger, 40%, (iv) for the next six calendar months,
50%, and (v) for the next three calendar months, 60%. 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.
"Available Cash Flow from Securitization Receivables" means the amount
of any distribution with respect to, or prepayment of, any Pledged MBS.
"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 (i) any Eligible Asset pledged by the Borrower or
its Subsidiaries and accepted by the Existing Lender in connection with either
an Advance or in response to a Margin Call; (ii) the contractual right to
receive payments, including the right to payments of principal and interest and
the right to enforce such payments, arising from or under any of the Eligible
Assets; (iii) the contractual right to service each Pledged Loan; (iv) any other
right, interest or property of the Company or any Subsidiary now or hereafter
securing the performance by the Company or any Subsidiary of the Existing
Obligations; and (v) any and all proceeds, payments, income, profits and
products thereof, and all files and records relating thereto.
"Collateral Value" means, with respect to any Eligible Asset pledged by
Borrower and its Subsidiaries to the Existing Lender, the product of the related
Market Value and the related Advance Rate.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"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 Lender 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 any
principal or interest due thereunder.
"Eligible Asset" means any Pledged MBS or Pledged Loan.
"Increased Mortgage Loan Differential" means, with respect to any
Delinquent Mortgage Loan which is a Pledged Loan, the excess of the amount
originally advanced in respect of such Pledged Loan made by the Existing Lender
in connection with the transaction under which such Pledged Loan was financed,
reduced by any
amount previously applied in reduction of the amount outstanding under the
applicable Existing Loan Documents in respect of such Delinquent Mortgage Loan
pursuant to clause (ii) of the first sentence of Section 5(b) hereof, the last
sentence of Section 5(b) hereof or Section 5(c) hereof, over an amount equal to
65% of the unpaid principal amount of such Mortgage Loan at the time of such
advance.
"Margin Call" means the right of the Existing Lender to give notice to
require the Company to transfer to the Existing Lender cash or additional
Collateral.
"Market Value" means the value of any Eligible Asset as determined by
the Existing Lender in its sole discretion.
"Minimum Repayment Amount" means (i) for January 1999, $667,000, (ii)
for each of the one- through five-month periods commencing with February 1, 1999
and prior to the date of the consummation of the Merger, the applicable amount
as follows: (a) first month, $1,000,000, (b) first two months, $2,000,000, (c)
first three months, $3,000,000, (d) first four months, $5,000,000, (e) first
five months, $7,000,000, and (iii) 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, $1,666,667, (b) first two months, $3,333,333, (c) first three months,
$5,000,000, (d) first four months, $7,666,667, (e) first five months,
$10,333,333, (f) first six months, $13,000,000, (g) first seven months,
$16,000,000, (h) first eight months, $19,000,000, (i) first nine months,
$22,000,000, (j) first ten months, $25,666,667, (k) first eleven months,
$29,333,333, and (l) first twelve months, $33,000,000. 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 Loan" means any first-lien or second-lien residential
mortgage loan originated or serviced by the Company or its Subsidiaries.
"Mortgage Loan Differential" means with respect to any Delinquent
Mortgage Loan which is a Pledged Loan, the excess of the amount originally
advanced in respect of such Pledged Loan made by the Existing Lender in
connection with the transaction under which such Pledged Loan was financed,
reduced by any amount
previously applied in reduction of the principal amount outstanding under the
Existing Loan Documents in respect of such Delinquent Mortgage Loan pursuant to
clause (ii) of the first sentence of Section 5(b) hereof, the last sentence of
Section 5(b) hereof or Section 5(c) hereof, over an amount equal to 80% of the
unpaid principal amount of such Mortgage Loan at the time of such advance.
"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 MBS.
"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.
"Pledged Loan" means any Mortgage Loan or Wet Mortgage Loan that is
pledged by the Company or its Subsidiaries and accepted by the Existing Lender
in connection with an Advance.
"Pledged MBS" means any residual, subordinated or interest strip class
of asset-backed security (i) issued in connection with a securitization in which
Existing Lender or its designee acted as lead or co-lead underwriter or
placement agent and (ii) pledged by Company and its Subsidiaries and accepted by
Lender in connection with an Advance.
"Seller's Guide" means the "IMC Mortgage Company Client Operations
Manual", together with the underwriting guidelines of the Company and its
Subsidiaries, a true and correct copy of which was previously provided to the
Existing Lender by the Company and its Subsidiaries.
"Standstill Period" means a period ending on the first to occur of (i)
the later of (x) 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 1(c) hereof or (iii)
termination of the Merger Agreement.
"Wet Mortgage Loan" means any residential mortgage loan originated by
the Company and its Subsidiaries in accordance with the Seller's Guide, with
respect to which all of the related documents required to be delivered in
connection with any Advance have not been deposited with the custodian on or
prior to the related Advance Date.
Section 8. Notice of Advances under the Loan Agreement; etc. (a) The
Company shall give prior written notice to the Existing Lender of each request
for an Additional Advance under Section 2.10 of the 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 Lender
immediately upon either the funding of an Additional Advance (together with such
evidence thereof as the Existing Lender may reasonably request) or the refusal
of Facility Lender to fund such Additional Advance, as the case may be.
(b) The Company shall give each Creditor prompt written notice of any
event which upon notice or lapse of time or both would constitute an event of
default in respect of any of its outstanding Debt.
(c) The Company shall give the Existing Lender 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 Lender 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 Lender 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 Agreement), the Company shall deliver to the Existing
Lender 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 Lender or
the Facility Lenders of their rights in respect of the Collateral, provided that
the foregoing shall not be construed to modify the provisions of Sections 2(b)
and 3 hereof. This document shall not constitute a waiver, amendment or
modification of the Existing Loan Documents, the Existing Obligations or the
Loan Documents except as expressly referred to herein and shall not be construed
as a waiver or consent to any future action on the part of the Company that
would require a waiver or consent of the Existing Lender or the Facility
Lenders, respectively, except to the extent expressly provided herein.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agreement shall be effective and binding unless in writing and signed by
the Existing Lender, the Other Existing Lenders and the Facility Lenders. Any
such waiver will be
effective only in the specific instance and for the specific purpose for which
it is given.
Section 11. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 12. 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(d) which cause the amount
received pursuant to Section 5(a) and 5(d) 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 13. 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 14. 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 SECTION 17.
Section 15. Expenses. In addition to the foregoing, the Company will
also reimburse the Existing Lender and the Facility Lenders promptly for their
reasonable out-of-pocket costs and expenses incurred by such Persons or their
respective employees, agents or advisors in connection with the performance of
their respective obligations and duties hereunder and, to the extent the
Existing Loan Documents so provide, under the Existing Loan Documents, and for
any reasonable fees and expenses of legal or other professional advisors to the
Existing Lender and the Facility Lenders engaged in connection with the
preparation and negotiation of this Agreement 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 Lender may pay such fees
from Available Cash Flow from Securitization Receivables and payments on Pledged
Loans.
Section 16. Agreement May Constitute Financing Statement. The Company
and the Existing Lender consents to the filing of this Agreement or
a photocopy thereof as a financing statement under the UCC as in effect in any
jurisdiction in which the Facility Lenders may determine such filing to be
necessary or desirable.
Section 17. 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,
Attn.: Xxxxxx Xxxxxx, Tel: (000) 000-0000, Fax: (212) 000- 0000; (b) if to the
Company, IMC Mortgage Company, 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
Attn.: President, Tel: (000) 000-0000, Fax: (000) 000-0000; with a copy to
Xxxxxxxx X. Xxxxxx, 000X Xxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000; and (c) and
if to the Existing Lender: PaineWebber Real Estate Securities, Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxxxxxxxxxx, Tel:
(212) 000- 0000, 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: (212) 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 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 17 or 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 18. 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
Lender may sell, assign, participate or otherwise transfer or dispose of all or
any portion of the Loan or the Existing Obligations to any
Person unless such Person shall have assumed and agreed to be bound by the terms
hereof by written instrument in form reasonably satisfactory to the Company and
each other Creditor.
Section 19. Counterparts; Section Headings. This Agreement may be
executed in any number of counterparts, each of which is an original, but all of
which together constitute but one instrument. Except as otherwise indicated,
references herein to any "Section" means a "Section" of this Agreement, and the
section headings in this Agreement are for purposes of reference only and shall
not limit or define the meaning hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
IMC MORTGAGE COMPANY
By /s/
--------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC.
By /s/
--------------------------------
Name:
Title:
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:
This 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:
ASPEN FUNDING CORP.
By /s/
--------------------------------
Name:
Title:
BEAR XXXXXXX HOME EQUITY TRUST
By /s/
--------------------------------
Name:
Title:
By /s/
--------------------------------
Name:
Title:
Schedule I
to the
Xxxxx Xxxxxx Intercreditor Agreement
Other Existing Lenders
Master Repurchase Agreement, dated as of March 29, 1996, as amended from time to
time, by and among Bear Xxxxxxx Home Equity Trust and the Company and certain of
the Company's Subsidiaries.
Master Repurchase Agreement, dated as of May 1, 1997 Between Bear, Xxxxxxx
International Limited and Industry Mortgage Company, L.P.
Institutional Account Agreement, dated October 23, 1996, between and among
Industry Mortgage Company, L.P. and Bear Xxxxxxx.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and German American
Capital Corporation, as lender.
Loan and Security Agreement, dated March 17, 1998, by and among IMC Mortgage
Company, IMC Corporation of America, ACG Financial Services (IMC), Inc.,
American Mortgage Reduction, Inc., Central Money Mortgage Co. (IMC), Inc.,
Corewest Banc, Equity Mortgage Co., (IMC), Inc., Mortgage America (IMC), Inc.,
National Lending Center, Inc., National Lending Center TILT, Inc, and
Residential Mortgage Corporation (IMC), Inc., as borrowers, and Aspen Funding
Corp., as lender.
(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
Xxxxx Xxxxxx 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 17 of
the foregoing Agreement
