AMENDED AND RESTATED FORBEARANCE
AND INTERCREDITOR AGREEMENT
(Greenwich Street)
AMENDED AND RESTATED FORBEARANCE AND 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 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 (the "Initial Loan Agreement"), between the Company, as borrower, and
the Facility Lenders, pursuant to which the Facility Lenders extended to the
Company Commitments to loan, in the aggregate, $33,000,000 (the "Initial
Loans"), subject to the terms and conditions set forth in the Initial Loan
Agreement, which Initial Loans are evidenced by the Notes (as defined in the
Initial Loan Agreement) and entitled to the benefit of certain guarantees and
security provided under certain of the other Loan Documents (as defined in the
Initial Loan Agreement).
B. Pursuant to (i) 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 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
BankBoston, N.A. (the "1996 Agreement"), and together with the Bridge Loan
Agreement, (the "Existing Loan Agreements"), and other related agreements in
favor of BankBoston, N.A. (collectively with the Existing Loan Agreements, 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 Facility Lenders and the Company have entered into 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").
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 Forbearance Agreement (as hereinafter defined).
E. The Company intends to enter into an Agreement and Plan of Merger,
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").
F. In connection with the Merger Agreement, GSCP intends to enter into
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).
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, as amended (the "Original Forbearance Agreement"). In order to
induce the Facility Lenders to enter into the Amendment and GSCP to enter into
the Merger Agreement, the Facility Lenders, the Company and the Existing Lenders
have agreed to enter into this agreement amending and restating the Original
Forbearance Agreement (as so amended and restated, the "Forbearance Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Existing Lenders
and the Facility Lenders agree to amend and restate the Original Forbearance
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 or the Existing
Lenders from collecting payments in respect of the Standstill Advances;
(iii) make any Margin Calls or other demands for payment in respect
of, or additional collateral to secure the Existing Obligations;
(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, 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 Lenders take 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 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, govern mental authority or judicial
court or tribunal) its inability to pay its debts generally as they come
due or shall fail generally to pay its debts as they become due, or shall
make a general assignment for the benefit of its creditors; or the Company
or any Subsidiary shall file a voluntary petition in bankruptcy or a
voluntary petition or answer seeking liquidation, reorganization or other
relief with respect to itself or its debts under the Federal bankruptcy
laws, as now or hereafter constituted or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or shall consent to the
entry of an order for relief in an involuntary case under any such law; or
the Company or any Subsidiary shall file an answer admitting the material
allegations of a petition filed against 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. 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 Lenders for a purchase
price not less than the advance rate in respect of such mortgage.
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 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 Lenders hereby agree 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 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.
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. Additional Interest. (a) From and after the date this
Agreement becomes effective, within five days following receipt by the Company
each month of Available Cash Flow from Securitization Receivables, the Company
shall pay to the Existing Lenders the Applicable Percentage of such Available
Cash Flow from Securitization Receivables in repayment of principal of the
Existing Obligations under the Existing Loan Documents secured by the
Securitization Receivables generating such Available Cash Flow from
Securitization Receivables and may retain the balance of such Available Cash
Flow from Securitization Receivables and use such funds for general corporate
purposes.
(b) Within one day following the end of each of the first three-, six-,
nine- and twelve- month periods commencing with the date the Merger is deemed to
have been consummated for purposes of calculating the Minimum Repayment Amount,
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 applicable to such period over the aggregate amount applied to such
repayment in respect of such period, pursuant to Section 5(a) and this Section
5(b).
(c) The Company shall repay the principal amount outstanding under the
Existing Loan Documents by an amount equal to 100% of any Net Income Tax Refund
within five business days of receipt of such Refund.
(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
Servicing Rights or Subsidiaries sold or otherwise disposed of by the Company or
any
Subsidiary. The Company shall not sell or otherwise dispose of any Servicing
Rights or any Subsidiary without the Existing Lender's consent and without
reaching agreement with the Existing Lenders as to an appropriate reduction of
the Minimum Repayment Amount and adjustment to the Business Plan, such consent
and agreement not to be unreasonably withheld or delayed by the Existing Lenders
or the Company. The parties agree that it would be reasonable for the Existing
Lenders to withhold their consent to the sale of any Servicing Rights or stock
of Subsidiaries if, in their sole discretion, the Existing Lenders conclude that
such sale will impair their ability to be paid the Existing Obligations, the
selling price for the Servicing Rights or stock of Subsidiaries should be higher
or the Servicing Rights or stock of Subsidiaries have not been adequately
marketed.
(e) The Existing Lender acknowledges and consents to the payments to be
made by the Company from Available Cash Flow from Securitization Receivables and
Net Proceeds of Sale of Securitization Receivables and in respect of Delinquent
Mortgage Loans securing financing provided under Warehouse Facilities required
to be made to the Other Existing Lenders under 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. The Company shall furnish
the Existing Lenders complete and correct copies of each such Other
Intercreditor Agreement within one business day of its execution.
Section 7. Certain Definitions.
"Advance" means any advance made by the Existing Lenders under the
Existing Loan Agreements.
"Applicable Percentage" means (i) for the period from and after the
effective date hereof to the end of the calendar month in which such effective
date occurs, 1.67%, (ii) for the period from and after the calendar month in
which the effective date hereof occurs to the date of consummation of the
Merger, 2.5%, (iii) for the first six calendar months commencing on or after the
date of the consummation of the Merger, 5%, and (iv) for the next six calendar
months, 10%. 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
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
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) 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 Securitiza tion Receivables and any other
interest of the Company or any Subsidiary, in the Securiti zation 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, includ ing, 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 $0.01 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.
"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.
"Minimum Repayment Amount" means for each of the first three-, six-,
nine- and twelve-month periods from and after the date of the consummation of
the Merger, the applicable amount as follows: (a) first three months,
$1,300,000, (b) first six months, $3,000,000, (c) first nine months, $5,500,000,
(d) first twelve months, $8,000,000. 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 consum mation 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 mortgage loan originated or purchased by the
Company or any Subsidiary.
"Net Income Tax Refund" means any U.S. Federal income tax refund
received by the Company during the Standstill Period net of any U.S. Federal
income taxes paid or payable by the Company (in its good faith estimate) during
the tax year in which such refund is received.
"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.
"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.
"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 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.
"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.
"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).
"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.
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) 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 Agreements to the Existing Lenders
weekly on Friday of each week or, if Friday is not a Business Day, on the next
Business Day.
(d) During the Standstill Period (without limiting any obligations
under the Existing Loan Documents), the Company shall deliver to the Existing
Lenders at the same time it delivers to the Facility Lenders, the Disclosure
Letter, the Three-Month Business Plan, any Updated Business Plan and all other
financial statements and reports required to be provided to the Facility Lenders
pursuant to Section 5.5 of the Loan Agreement. The Company shall cooperate with
the Existing Lenders and its financial consultants and provide the Existing
Lenders and such consultants with such information and the opportunity to
consult with its executive officers and accountants as the Existing Lenders may
reasonably request.
(e) The Company shall give the Existing Lenders and the Facility
Lenders prompt written notice of any event that would permit termination of the
Standstill Period pursuant to clauses (iii), (iv), (vi), (vii), (viii) or (ix)
of Section 1(b) hereof.
Section 9. Acknowledgment of Obligations. The Company and each
Subsidiary acknowledges that, as of the date hereof, the principal balance of
the obligations under the Existing Loan Agreements are as follows: (a) the
Bridge Loan Agreement: $45,000,000; and (b) the 1996 Agreement: $42,500,000. 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 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. 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 on or prior to the date of execution and delivery hereof.
Section 10. Amendments, Etc. No amendment, modification, supplement,
termination, consent or waiver of this Agreement or any term or provision of
this Agree ment 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 OT 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 18.
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 Merger Agreement, 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.
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: (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: (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; 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, and to each of the other Creditors, each of which is an intended
third-party beneficiary hereof. Neither the Facility Lenders nor the Existing
Lenders may sell, assign, participate or otherwise transfer or dispose of all or
any portion of the Loan or the Existing Obligations to any Person unless such
Person shall have assumed and agreed to be bound by the terms hereof by written
instrument in form reasonably satisfactory to the Company and each other
Creditor.
Section 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.
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:
ASPEN FUNDING CORP.
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 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.
fMaster 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
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 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 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 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
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:
(212) 000- 0000; Fax: (000) 000-0000
