REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") entered into and
effective as of October __, 1998 among IMC Mortgage Company (the "Company") and
each of Greenwich Street Capital Partners II, L.P., GSCP Offshore Fund, L.P. and
Greenwich Fund, L.P. (together with their successors and assigns, the
"Holders").
W I T N E S S E T H:
WHEREAS, the Company and each of the Holders have entered into a Loan
Agreement, dated as of the date hereof (the "Loan Agreement"), pursuant to which
the Holders are entitled to receive from the Company shares of the Class C
Exchangeable Preferred Stock, par value $0.01 per share, of the Company (the
"Class C Shares") and shares of the Class D Preferred Stock, par value $0.01 per
share, of the Company (the "Class D Shares"); and
WHEREAS, in order to induce the Holders to enter into the Loan
Agreement, the Company has agreed to provide the registration rights set forth
herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Applicable Number of Registrations" shall be (i) five demand
registrations and (ii) unlimited piggyback registrations.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency then administering the Exchange Act or the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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"Initiating Holders" shall mean each Holder and its assignees who in
the aggregate are Holders of more than 2% of the issued and outstanding Class C
Shares and Class D Shares on an aggregate basis.
"Loan Agreement Draw Date" means the date of the first drawdown under
the Loan Agreement.
"Registrable Securities" shall mean (i) the Class C Shares and the
Class D Shares or (ii) Class C Shares or Class D Shares, as the case may be,
issued upon any stock split, stock dividend, recapitalization or similar event.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company
in compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, reasonable fees and
disbursements, not to exceed $25,000, of one counsel for all the selling Holders
and other security holders, and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company).
"Restricted Securities" shall mean the Registrable Securities required
to bear or bearing a restrictive legend.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and transfer taxes applicable to the sale of Registrable Securities,
which shall be paid by the selling Holders.
SECTION 2. Requested Registration.
(a) Request for Registration. If the Company shall receive from
Initiating Holders a written request that the Company effect any registration
with respect to all or a part of the Registrable Securities, the Company will:
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(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities
laws, appropriate compliance with applicable regulations issued under
the Securities Act and listing on appropriate exchanges) as may be so
requested and as would permit or facilitate the sale and distribution
of all or such portion of such Registrable Securities as are specified
in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are
specified in a written request given within thirty days after receipt
of such written notice from the Company; provided that the Company
shall not be obligated to effect, or to take any action to effect, any
such registration pursuant to this Section 2(a) (i) in any
jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, or in which the cost of the foregoing is
unreasonable in light of the number of Registrable Securities
requested to be sold in such jurisdiction, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder, and (ii) after the Company has effected the Applicable
Number of Registrations pursuant to this Section 2(a), and such
registrations have been declared or ordered effective and the sales of
such Registrable Securities shall have closed, and provided further
that the Company may defer the filing (but not the preparation) of any
registration otherwise required pursuant to this Section 2(a) if
another registration of equity securities of the Company under the
Securities Act is then pending or has been duly and validly demanded
by any holder of securities of the Company who is entitled, by
contract with the Company, to have securities included in such a
registration (such persons collectively, the "Other Shareholders") and
such contractual arrangement prohibits the Company from effecting such
registration at such time pursuant to this Agreement, or if a period
of less than three months shall have elapsed from the effective date
of the most recent registration previously effected by the Company.
Subject to the foregoing clauses, the Company shall file a
registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, after receipt of
the request or requests of the Initiating Holders.
Notwithstanding the foregoing, if the Company shall at any time furnish
to the Holders a certificate of the Company stating that counsel to the Company,
which
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counsel shall be reasonably satisfactory to the Holders, or the Board of
Directors of the Company shall have determined that the Company has pending or
in progress a material transaction or other development, the disclosure of which
would, in the good faith judgment of the Company, materially and adversely
affect the Company, then, the Company may defer the filing (but not the
preparation) of a registration statement, and may withhold efforts to cause the
registration statement to become effective if the registration has been filed,
for up to 120 days, but the Company shall use all reasonable efforts to resolve
the transaction and, in accordance with Section 5, to file the regis tration
statement and cause it to become effective as soon as possible. If the Company
shall so defer the filing of any such registration statement, or so withhold
efforts to cause the registration statement to become effective, the Holders
shall have the right to withdraw the demand for registration by giving written
notice to the Company from the Initiating Holders within 20 days after receipt
of the applicable notice of deferment (and, in the event of such withdrawal,
such demand shall not be counted for purposes of determining the number of
demands for registration to which the holders of Registrable Securities are
entitled pursuant to this Section 2(a)). Notwithstanding anything else to the
contrary in this Agreement, the aggregate number of days during which otherwise
qualifying Holders shall be prohibited from registering and selling Registrable
Securities under this Section 2(a) shall not exceed 180 days during any
consecutive 12-month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2(b) below, include
other securities of the Company which are held by Other Shareholders, but except
as provided in the last sentence of Section 2(b) below the Company shall have no
right to include any of its securities in any such registration.
(b) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2(a) and the Company shall include such information in the written
notice referred to in Sec tion 2(a)(i) above. The right of any Holder to
registration pursuant to Section 2(a) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder with respect to
such participation and inclusion) to the extent provided herein. A Holder may
elect to include in such underwriting all or a part of the Registrable
Securities he holds.
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If Other Shareholders request such inclusion, the Initiating Holders
shall, on behalf of all Holders, offer to include the securities of such Other
Shareholders in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Agreement. The Company
shall (together with all Holders and Other Shareholders proposing to distribute
their securities through such under writing) enter into an underwriting
agreement in customary form (including, without limitation, customary
indemnification and contribution provisions on the part of the Company) with the
representative of the underwriter or underwriters selected for such underwriting
by a majority in interest of the Initiating Holders and reasonably acceptable to
the Company; provided that such underwriting agreement shall not provide for
indemnification or contribution obligations on the part of Holders greater than
the obligations of the Holders pursuant to Section 6. Notwithstanding any other
provision of this Section 2, if such representative advises the Initiating
Holders in writing that marketing factors require a limitation on the number of
shares to be underwritten, the securities of the Company held by Other
Shareholders (other than Registrable Securities) shall be excluded from such
registration to the extent so required by such limitation and if a limitation of
the number of shares is still required, the Initiating Holders shall so advise
all Holders of Registrable Securities whose securities would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among all such Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities and other securities which they
held at the time of the request for registration made by the Initiating Holders
pursuant to Sec tion 2(a). No Registrable Securities or any other securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any Holder of Registrable
Securities or Other Shareholder who has requested inclusion in such registration
as provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders no later than ten days prior to the expected
effective date of the relevant registration statement. The securities so
withdrawn shall also be withdrawn from registration. If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company may include its securities for its own account in such
registration if the underwriter so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(c) The Initiating Holders may issue the number of written requests
under this Section 2 which equals the Applicable Number of Registrations.
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SECTION 3. Company Registration.
(a) If the Company shall determine to register any of its securities
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company:
(i) will promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable
blue sky or other state securities laws);
(ii) will include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by any Holder within
fifteen days after receipt of the written notice from the Company
described in clause (i) above, except as set forth in Section 3(b)
below. Such written request may specify all or a part of a Holder's
Registrable Securities; and
(iii) may, at its sole election, withdraw such registration at
any time without penalty or liability.
(b) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
3(a)(i). In such event the right of any Holder to registration pursuant to
Section 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein, including, without limitation, the
agreement to any lock-up agreement required by the underwriter or underwriters
selected for underwriting by the Company. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the Other Shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with such under writer,
provided that such underwriting agreement shall not provide for indemnification
or contribution obligations on the part of Holders greater than the obligations
of the
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Holders pursuant to Section 6. Notwithstanding any other provision of this
Section 3, if the underwriter determines that marketing factors require a
limitation on the number of shares to be underwritten, the Company will cause to
be included in such registration to the extent of such limitation on the number
of shares to be underwritten, first, the securities being sold by the Company,
second, all securities proposed to be registered in such offering by the Company
for the accounts of Other Shareholders if such securities must be included prior
to the Registrable Securities to prevent a breach of any applicable registration
rights agreement between the Company and such Other Shareholders, but only in
such amount and to the extent required by such agreement and third, the
Registrable Securities proposed to be registered in such offering by the Holders
of such Registrable Securities and all such other securities proposed to be
registered in such offering by the Company for the accounts of each Other
Shareholder (not included in those securities to be registered pursuant to
clause second above), pro rata among the Holders of such Registrable Securities
and all such Other Shareholders on the basis of the number of securities
requested to be included by such Holders and such Other Shareholders. If any
Holder of Registrable Securities or Other Shareholder disapproves of the terms
of any such underwriting, he may elect to withdraw therefrom by written notice
to the Company and the underwriter no later than ten days prior to the expected
effective date of the relevant registration statement. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
SECTION 4. Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Agreement shall be borne by the Company, and all Selling Expenses shall be
borne by the holders of the securities so registered pro rata on the basis of
the number of their shares so registered; provided, however, that the Company
shall not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by Initiating Holders (other than due
to a material adverse change in the business of the Company or any refusal to
proceed based upon the advice of counsel that the regis tration statement, or
any prospectus contained therein, contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing), the registration statement does not become
effective, in which case the Holders and Other Shareholders requesting
registration shall bear such Registration Expenses pro rata on the basis of the
number of their shares so included in the registra tion request, and provided,
further, that such registration shall not be counted as a registration pursuant
to Section 2.
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SECTION 5. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense, the Company will:
(i) prepare, and as soon as practicable, but in any event within
60 days thereafter file with the Commission, a registration statement
with respect to the Registrable Securities, make all required filings
with the National Association of Securities Dealers, Inc. ("NASD") and
use its reasonable best efforts to cause such registration statement
to become effective;
(ii) prepare and promptly file with the Commission such
amendments and post-effective amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for
so long as is required to comply with the provisions of the Securities
Act and to complete the disposition of all securities covered by such
registration statement in accordance with the intended method or
methods of disposition thereof, but in no event for a period of more
than four months after such registration statement becomes effective;
(iii) furnish to counsel selected by the Holders copies of all
documents proposed to be filed with the Commission in connection with
such registration;
(iv) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case
including all exhibits and documents filed therewith) and such number
of copies of the prospectus in cluded in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to fa
cilitate the disposition of the Registrable Securities owned by such
seller in accordance with the intended method or methods of
disposition thereof;
(v) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration statement under
the securities or blue sky laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things
which may be necessary or advisable to enable such seller to
consummate the disposition of such Registrable Securities in such
jurisdictions in accordance with the intended method or methods of
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disposition thereof, provided that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified,
subject itself to taxation in any juris diction wherein it is not so
subject, or take any action which would subject it to general service
of process in any jurisdiction wherein it is not so subject;
(vi) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary by virtue of the business
and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(vii) furnish to each seller of Registrable Securities a signed
coun terpart, addressed to the sellers, of
(A) an opinion of counsel for the Company experienced in
securities law matters, dated the effective date of the
registration statement (and, if such registration includes an
underwritten public offering, the date of the closing under the
underwriting agreement); and
(B) a "comfort" letter dated the effective date of such
registration statement (and if such registration includes an
underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the independent public
accountants who have issued an audit report on the Company's
financial statements included in the registration statement,
covering such matters as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities;
(viii) notify each seller of any Registrable Securities covered
by such registration statement at any time when the Company has
knowledge that a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event or
existence of any fact as a result of which the pro spectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and, as promptly as is practicable,
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prepare and furnish to such seller a reasonable number of copies of a
sup plement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement of the Company (in form complying with the
provisions of Rule 158 under the Securities Act) covering the period
of at least 12 months, but not more than 18 months, beginning with the
first month after the effective date of the registration statement;
(x) notify each seller of any Registrable Securities covered by
such registration statement (i) when the prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective
amendment, when the same has become effective, (ii) of any request by
the Commission for amendments or supplements to such registration
statement or to amend or to supplement such prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation of any proceedings for that purpose of which the
Company has knowledge and (iv) of the suspension of the qualification
of such securities for offering or sale in any jurisdiction, or of the
institution of any proceedings for any of such purposes of which the
Company has knowledge;
(xi) use every reasonable effort to obtain the lifting of any
stop order that might be issued suspending the effectiveness of such
registration statement at the earliest possible moment;
(xii) use its reasonable best efforts (i) (A) to list such
Registrable Securities on any securities exchange on which the equity
securities of the Company are then listed or (B) if no such equity
securities are then listed, to secure designation of such securities
as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ
authorization for such Registrable Securities, and, without limiting
the foregoing, to arrange for at least two market makers to register
as such with respect to such Registrable Securities with the NASD, and
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(ii) to provide a transfer agent and registrar for such Registrable
Securities not later than the effective date of such registration
statement;
(xiii) enter into such agreements and take such other actions as
the sellers of Registrable Securities or the underwriters reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities, including, without limitation, to the extent
that the offering in question is an underwritten offering, preparing
for, and participating in, such number of "road shows" and all such
other customary selling efforts as the underwriters reasonably request
in order to expedite or facilitate such disposition; and
(xiv) use its reasonable best efforts to take all other steps
necessary to effect the registration of such Registrable Securities
contemplated hereby.
The Company may require each seller of any Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller, including, without limitation, its ownership
of Registrable Securities and the disposition of such Registrable Securities, as
the Company may from time to time reasonably request in writing and as shall be
required by law in connection therewith. Each such Holder agrees to furnish
promptly to the Company all infor mation required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any Registrable Securities covered thereby by name, or
otherwise identifies such seller as the Holder of any Registrable Securities,
without the consent of such seller, such consent not to be unreasonably
withheld, unless such disclosure is required by law.
SECTION 6. Indemnification.
(a) The Company will, and hereby does, indemnify each Holder, each of
its officers, directors and partners, and each person controlling such Holder,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus (including any related
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registration statement) incident to any such registration, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of such
prospectus, in light of the circumstances under which made) not misleading, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers, directors
and partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by such Holder
or underwriter and stated to be specifically for use therein or to the extent
such liability arises solely as a result of the failure of the Holder or such
underwriter, if any, to deliver a prospectus.
(b) Each Holder and Other Shareholder will, if Registrable Securities
held by him are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a regis tration statement, each person who controls
the Company or such underwriter within the meaning of the Securities Act and the
rules and regulations thereunder, each other such Holder and Other Shareholder
and each of their officers, directors and partners, and each person controlling
such Holder or Other Shareholder, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement or prospectus, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of such prospectus, in
light of the circumstances under which made, not misleading, and will reimburse
the Company and such Holders, Other Shareholders, directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus in reliance upon and in conformity with written information furnished
to the Company by such Holder or Other Shareholder and stated to be specifically
for use therein; provided, however, that the obligations of such Holders and
Other Shareholders
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hereunder shall be limited to an amount equal to the proceeds to each such
Holder or Other Shareholder of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
failure of any Indemnified Party to give notice shall not relieve the
Indemnifying Party of its obligation under this Section 6, except to the extent
of any actual prejudice resulting from such failure. The Indemnifying Party will
be entitled to participate in, and to the extent that it may elect by written
notice delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, at its expense to assume, the defense of any
such claim or any litigation resulting therefrom, with counsel reasonably
satisfactory to such Indemnified Party, provided that the Indemnified Party may
partici xxxx in such defense at its expense, notwithstanding the assumption of
such defense by the Indemnifying Party, and provided, further, that if the
defendants in any such action shall include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it and/or other Indemnified
Parties which are different from or additional to those available to the
Indemnifying Party, the Indemnified Party or Parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
Parties and the fees and expenses of such counsel shall be paid by the
Indemnifying Party with respect to such different or additional defense. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom. No Indemnified Party shall consent to the entry
of any judgment nor enter into any settlement without the prior written consent
of the Indemnifying Party.
SECTION 7. Information by Holder. Each Holder of Registrable
Securities, and each Other Shareholder holding securities included in any
registration, shall furnish to the Company such information regarding such
Holder or Other Shareholder and the distribution proposed by such Holder or
Other Shareholder as the Company may reasonably request in writing and as shall
be reasonably required in
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connection with any registration, qualification or compliance referred to in
this Section 7.
SECTION 8. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to use its reasonable best efforts to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act so long as it remains subject to such reporting
requirements; and
(c) so long as the Holders own any Restricted Securities, furnish
to them forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as they may reasonably request in availing
themselves of any rule or regulation of the Commission allowing them
to sell any such securities without registration.
SECTION 9. Transfer or Assignment of Registration Rights. The rights to
cause the Company to register the securities granted to the Holders by the
Company under this Agreement may, in the Holders' discretion, be transferred or
assigned by them to a transferee or assignee of any of the Restricted
Securities, provided that the Company is given written notice by the Holders at
the time of or within a reasonable time after such transfer or assignment,
stating the name and address of such transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and provided, further, that the transferee or assignee of such
rights assumes the Holders' obligations under this Agreement.
SECTION 10. "Market Stand-off" Agreement. The Holders agree, if
requested by the Company and an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any such equity securities of
the Company held by them during the ninety-day period following the effective
date of a registration statement of the Company filed under the Securities Act,
provided that, if requested by such underwriter, all Holders, all officers and
directors and all other shareholders of the Company who acquire equity
securities of the Company in a privately negotiated transaction after June 25,
1996 enter into similar agreements. Notwithstanding the
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foregoing, shareholders of the Company who acquire such equity securities in
return for the equity securities of an entity acquired by the Company, and who
have no "demand" registration rights in respect thereof, shall not be required
to enter into such agreements.
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of such ninety-day period.
SECTION 11. Shelf Registrations. If, at any time when a Shelf
Registration is effective with respect to any Registrable Securities, the
Company shall furnish to the Holders a certificate of the Company stating that
counsel to the Company, which counsel shall be reasonably satisfactory to the
Holders, or the Board, shall have determined that the Company has pending or in
progress a material transaction or other development, the disclosure of which
would, in the good faith judgment of the Company, materially and adversely
affect the Company, then such Holders shall thereafter not dispose of any
Registrable Securities under such Shelf Registration until the earlier of (i)
the time when such transaction or development is resolved in a manner that
allows, or renders unnecessary, appropriate disclosure with respect to such
transaction or development and (ii) the 121st day after the delivery of such
certificate, provided the Company shall at all times use all reasonable efforts
to resolve the transaction or other development in question so as to enable the
Holder to recommence selling under such Shelf Registration as promptly as
possible, and provided further that the four month period referred to in Section
5(ii) shall be suspended or "tolled" during any such period when the Holders are
unable to so utilize such Shelf Registration.
SECTION 12. Miscellaneous
12.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York.
12.2 Successors and Assigns. Except as otherwise expressly provided
herein or in any applicable assignment instrument, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto; provided, however, the
Company may not assign its rights hereunder.
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12.3 Entire Agreement; Amendment. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by the
parties hereto.
12.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or delivered either by hand or by messenger, (a) if to the
initial Holders, addressed to them at c/o GSCP, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other address as such Holder shall have
furnished to the Company in writing, or (b) if to any other holder of any Class
C Shares or Class D Shares, at such address as such holder shall have furnished
the Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last holder thereof who has so
furnished an address to the Company, or (c) if to the Company, addressed to it
at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx,
Chairman.
12.5 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or default of any
other party under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
12.6 Rights; Separability. In case any provision of the Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
12.7 Titles and Subtitles. The titles of the paragraphs and subpara
graphs of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
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12.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. Confirmation of execution by
electronic transmission of a facsimile signature page shall be binding upon any
party so confirming.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
or caused this Agreement to be executed on its behalf as of the date first
written above.
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: Managing Member
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