REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT, dated as of May 20, 1999, among IMC MORTGAGE
COMPANY, a Delaware corporation (the "Company"), and GREENWICH STREET CAPITAL
PARTNERS II, L.P., a Delaware limited partnership ("GSCP").
WHEREAS, the Company has requested GSCP to enter into one or more
indemnification agreements (each, a "Guaranty") with Reliance Surety Company,
United Pacific Insurance Company or one or more other surety companies (the
"Sureties") indemnifying, subject to the terms therein, the Sureties against
loss arising under surety bonds issued by one or more of the Sureties in respect
of the Company;
WHEREAS, in order to induce GSCP to enter into the Guaranties, the
Company is willing to enter into this Agreement and to amend certain security
agreements with GSCP and its affiliates to include its obligations hereunder as
secured obligations thereunder;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, and other consideration (the
sufficiency and receipt of which is hereby acknowledged by the parties) the
parties hereby agree as follows:
ARTICLE I
Reimbursement
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1.1 Reimbursement. (a) If GSCP makes any payment pursuant to, or in
respect of, any Guaranty (a "Payment"), the Company shall as soon as practicable
thereafter (and in any event within ten days) reimburse the full amount of such
Payment, together with any interest accrued thereon pursuant to Section 1.1(b).
(b) Interest shall accrue on the principal amount of the Payment from
the date such Payment is made by GSCP until the amount of such Payment is
reimbursed to GSCP at a floating rate equal to the rate publicly announced by
Citibank, N.A. from time to time as its prime rate plus 2%. Such interest shall
be payable on the date any portion of the principal amount of such Payment is
repaid, as to the accrued interest on such portion.
1.2 Expenses. The Company shall pay to GSCP on demand all reasonable
costs and expenses incurred by GSCP in connection with the administration and
enforcement
of this Agreement, including, without limitation, reasonable attorneys' fees and
expenses. The provisions of this Section 1.2 shall survive the termination of
this Agreement.
1.3 Indemnification. The Company shall indemnify, defend and hold
harmless GSCP, each of the member, officers, employees and agents of GSCP and
each of the suc cessors and assigns of any of the foregoing (the "Indemnitees")
from and against, and pay or reimburse them for any losses, liabilities, claims,
damages, obligations, payments, costs and expenses (including reasonable
attorneys' fees), matured or unmatured, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated, known or unknown (including, without
limitation, the costs and expenses of any and all actions, threatened actions,
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys' fees and any and all expenses whatsoever, reasonably incurred in
inves tigating, preparing or defending against such actions or threatened
actions) whether or not arising from third party claims of the Indemnitees
arising out of or due to this Agreement, the exercise of any right or remedy of
the Company under this Agreement and the failure or alleged failure of the
Company to pay, perform or otherwise discharge when due any of his obligations
hereunder. If and to the extent that the obligations of the Company under this
Section 1.3 are unenforceable for any reason, the Company hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law. The provisions of this Section 1.3
shall survive the termination of this Agreement.
ARTICLE II
Miscellaneous
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2.2 Complete Agreement; Construction. This Agreement shall constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements, understandings, representations and
warranties, written or oral, with respect to such subject matter.
2.3 Further Actions. In case any further action is necessary or
desirable to carry out the purposes of this Agreement, each party to this
Agreement shall take, and shall co operate with the other party to take, all
such necessary or desirable action.
2.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws thereof.
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2.5 No Set-Off. All payments required to be made hereunder shall be
made free of any set-off, deduction, withholding or counterclaim of any nature
and description which any party may have in respect of indebtedness of another
party.
2.6 Notices. All notices and other communications hereunder shall be in
writing and shall be delivered by hand or sent by telecopy or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which such
notice is received:
If to GSCP:
Greenwich Street Capital Partners II, L.P.
c/oGSCP, Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
If to the Company:
IMC Mortgage Company
0000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: President
Tel: 000-000-0000
Fax: 000-000-0000
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with a copy to:
Xxxxxxxx X. Xxxxxx
000 X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
2.7 Amendments. Neither this Agreement nor any term or provision hereof
may be amended, modified, waived or supplemented orally, but only by an
instrument in writing signed by the party against which such amendment,
modification, waiver or supplement is sought to be enforced.
2.8 Successors and Assigns. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. This Agreement shall not be
assignable by any party hereto without the prior written consent of GSCP and any
attempt to assign this Agreement or any provision hereof without such consent
shall be void and of no effect.
2.9 Termination. This Agreement shall terminate on the later of (x) the
date GSCP has no further obligation or liability, absolute or contingent,
matured or unmatured, with respect to any Guaranty and (y) the date all amounts
owing to GSCP or any such successor or assign hereunder have been repaid in
full, provided that this Agreement shall immediately be reinstated if any such
payment is rescinded or must be returned for any reason.
2.10 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and their respective successors and assigns and
should not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, cause of action or other right in excess of those existing
without reference to this Agreement.
2.11 Titles and Headings. Titles and headings to Sections herein are
inserted for the convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
2.12 Legal Enforceability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable in any other jurisdiction such provision or remedies
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otherwise available to any party hereto. To the extent permitted by applicable
law, each party hereby waives any provision of law that renders any provision
hereof prohibited or unenforceable in any respect. The party shall endeavor in
good faith negotiations to replace any prohibited or unenforceable provisions
with valid provisions, the economic effect of which comes as close as possible
to that of the prohibited or unenforceable provisions. Without prejudice to any
rights or remedies otherwise available to any party hereto, each party
acknowledges that damages would be an inadequate remedy for any breach of the
provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
2.13 Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
2.14 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 RELATIONSHIPS ESTABLISHED HEREUNDER.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
IMC MORTGAGE COMPANY,
as Collateral Agent
By: /s/
-----------------------
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: Greenwich Street Investments II, L.L.C., its
General Partner
By: /s/
-----------------------
Name:
Title:
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