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EXHIBIT 10.90
ESCROW AGREEMENT
(SEVERANCE PAYMENTS)
THIS AGREEMENT, made as of the 10th day of October, 2000 by and between IMC
MORTGAGE COMPANY, a Florida corporation, the address of which is 00000 Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000 ("Depositor") and XXXXXX X.
XXXXXXX AND XXXXXX X. XXXXXX, both of Tampa, Florida (jointly called the
"Escrow Agents").
BACKGROUND FACTS
The following facts shall constitute the background for this Agreement:
A. The Depositor has entered into employment
arrangements including, without limitation, a Severance Agreement (the
"Severance Agreement") dated as of August 2, 2000 with each of the individuals
set forth on EXHIBIT A hereto (each being an "Associate"). Pursuant to the
terms of the Severance Agreement, a copy of the form of which is attached
hereto as EXHIBIT B and incorporated herein by this reference, each Associate
is entitled to receive a Severance Payment upon a Severance Termination (as
those terms are defined in the Severance Agreement).
B. The amount of the Severance Payment which each
Associate is entitled to receive under certain circumstances is reflected on
Exhibit A hereto (which amount with respect to each Associate is called the
"Associate's Severance Payment").
C. The Depositor has determined that it is in the best
interest of the Company to pre-fund and pre-pay into escrow the aggregate
amount of the Severance Payment for the benefit of each of the Associates, each
of whom is expressly designated as a third party beneficiary of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits and obligations of the
parties hereto, the parties hereto agree that the Background Facts set forth
above are true and correct and do further agree as follows:
1. DEPOSIT. Substantially simultaneously with the execution of
this Agreement, Depositor is purchasing United States Treasury Notes with a
maturity of five (5) years in an aggregate fair market value equal to the total
of the Severance Payments to which all of the Associates are entitled (which
asset is called the "Escrow Property"). The Depositor hereby pre-funds and
pre-pays the Severance Payments to Associates by delivery of the Escrow
Property to Escrow Agent, as agent for the Associates. The Escrow Property is
to be held by the Escrow Agent during the term of this Agreement and all
interest earned thereon shall, no less frequently than quarterly, be
distributed to the Associates, pro rata, based upon the relative Severance
Payments to which each is entitled while this Agreement remains in effect with
respect to each such Associate, and shall be reported as income to each such
Associate by the Escrow Agent. The Escrow Agent shall hold the Escrow Property
as agent for the Associates, and the Depositor hereby unconditionally transfers
and grants such Escrow Property to Associates, as the Severance Payment,
subject only to the risk of forfeiture in Section 3 hereof. The Associates
shall be deemed the owner of the Escrow Property, subject to forfeiture under
Section 3, and the Escrow Agent shall act as agent for Associates for the
purpose
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of holding and evidencing such immediate ownership. Depositor shall have no
further interest in the Escrow Property whatsoever, except for the contingent
right of return upon forfeiture pursuant to Section 3 hereof.
2. DISBURSEMENT FROM ESCROW. In the event of a Severance
Termination with respect to any Associate, the Escrow Agent shall, immediately
upon receipt of written notice thereof from the Associate, liquidate a
sufficient amount of the Escrow Property to provide the liquidity necessary to
effect the distributions set forth below:
a) Taxes. The Escrow Agent shall calculate the
withholding taxes which would be due with respect to the Associate's Severance
Payment had that Severance Payment been paid directly by the Depositor, which
withholding taxes shall include, without limitation, federal income taxes,
state income taxes (if applicable), social security taxes, Medicare taxes and
any other taxes required to be withheld at the time the Severance Payment
becomes payable (collectively, the "Withholding Taxes"), and the Withholding
Taxes shall be promptly paid on behalf of the Depositor to the appropriate
taxing authorities by the Escrow Agent; and
b) Disbursement to Associate. The amount of the
Severance Payment reduced by the withholding taxes shall be promptly disbursed
to the Associate entitled to receive that Severance Payment.
3. FORFEITURE. The rights of each Associate to receive a Severance
Payment are subject to an express risk of forfeiture in the event of a
termination of the Associate's employment by the Depositor for any reason other
than a reason which constitutes a "Severance Termination" under the Severance
Agreement (a "Non-Qualifying Termination"). In the event of a Non-Qualifying
Termination, or in the event of the expiration of three years from the date
hereof without a Severance Termination having occurred, then the Escrow Agent
shall liquidate such of the Escrow Property as remains in the hands of the
Escrow Agent and shall promptly pay over the amount thereof to or for the
benefit of the Depositor.
4. TERMINATION OF ESCROW. Upon disbursement of a portion of the
assets held pursuant to this Escrow Agreement, either to an Associate pursuant
to a Severance Payment under Section 2 above or to the Depositor upon a
Non-Qualifying Termination or the expiration of time as provided by Section 3
above, then all obligations of the Escrow Agent with respect to any amounts
held in escrow shall terminate.
5. DECISIONS BY ESCROW AGENT; SUCCESSORS. All actions by the
Escrow Agent shall require the consent of all persons serving as Escrow Agents
hereunder. In the event any person initially named as an Escrow Agent or any
successor to such person shall die, become disabled, shall resign or for any
other reason cease to serve as an Escrow Agent hereunder, then the remaining
Escrow Agent shall have the power and authority to appoint an additional
individual who is over 21 years of age and a resident of the State of Florida
to serve as a successor Escrow Agent, so that at all times there shall be not
less than two Escrow Agents serving hereunder (other than during such time as
may be necessary to effect an appointment of and acceptance by a successor
Escrow Agent).
6. DUTIES OF ESCROW AGENT.
a) Escrow Agents shall not be under any duty to give
the Escrow Property held by
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them hereunder any greater degree of care than they give their own similar
property and shall not be required to invest any funds held hereunder except as
directed in this Agreement. Uninvested funds held hereunder shall not earn or
accrue interest.
b) Escrow Agents shall not be liable, except for their
own gross negligence or willful misconduct and, except with respect to claims
based upon such gross negligence or willful misconduct that are successfully
asserted against Escrow Agents, the Depositor shall indemnify and hold harmless
Escrow Agents (and any successor Escrow Agents) from and against any and all
losses, liabilities, claims, actions, damages and expenses, including
reasonable attorneys' fees and disbursements, arising out of and in connection
with this Agreement. Without limiting the foregoing, Escrow Agents shall in no
event be liable in connection with their investment or reinvestment of any cash
held by them hereunder in good faith, in accordance with the terms hereof,
including, without limitation, any liability for any delays (not resulting from
its gross negligence or willful misconduct) in the investment or reinvestment
of the Escrow Property, or any loss of interest incident to any such delays.
c) Escrow Agents shall be entitled to rely upon any
order, judgment, certification, demand, notice, instrument or other writing
delivered to them hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or the propriety or
validity of the service thereof. Escrow Agents may act in reliance upon any
instrument or signature believed by them to be genuine and may assume that the
person purporting to give receipt or advice or make any statement or execute
any document in connection with the provisions hereof has been duly authorized
to do so. Escrow Agents may conclusively presume that the undersigned
representative of any party hereto which is an entity other than a natural
person has full power and authority to instruct Escrow Agents on behalf of that
party unless written notice to the contrary is delivered to Escrow Agents.
d) Escrow Agents may act pursuant to the advice of
counsel with respect to any matter relating to this Agreement and shall not be
liable for any action taken or omitted by them in good faith in accordance with
such advice.
e) Escrow Agents do not have any interest in the Escrow
Property deposited hereunder but are serving as escrow holders only and having
only possession thereof. Any payments of income from this Escrow Property shall
be subject to withholding regulations then in force with respect to United
States taxes. The parties hereto will provide Escrow Agents with appropriate
Internal Revenue Service Forms W-9 for tax identification number certification,
or non-resident alien certifications. This Section 5(e) and Section 5(b) shall
survive notwithstanding any termination of this Agreement or the resignation of
Escrow Agents.
f) Escrow Agents make no representation as to the
validity, value, genuineness or the collectability of any security or other
document or instrument held by or delivered to them.
g) Escrow Agents shall not be called upon to advise any
party as to the wisdom in selling or retaining or taking or refraining from any
action with respect to any securities or other property deposited hereunder.
h) An Escrow Agent (and any successor Escrow Agent) may
at any time resign as such by delivering the Escrow Property to any successor
Escrow Agent or Agents jointly designated by the other parties hereto in
writing, or to any court of competent jurisdiction, whereupon the resigning
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Agreement. The resignation of an Escrow Agent
will take effect on the earlier of (a) the appointment of a successor
(including a court of competent
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jurisdiction) or (b) the day which is 30 days after the date of delivery of
such resigning Escrow Agent's written notice of resignation to the other
parties hereto. If, at that time, the resigning Escrow Agent has not received a
designation of a successor Escrow Agent, Escrow Agent's sole responsibility
after that time shall be to retain and safeguard the Escrow Property until
receipt of a designation of successor Escrow Agent or a joint written
disposition instruction by the other parties hereto or a final non-appealable
order of a court of competent jurisdiction.
i) In the event of any disagreement between the other
parties hereto resulting in adverse claims or demands being made in connection
with the Escrow Property or in the event that Escrow Agents are in doubt as to
what action should be taken hereunder, Escrow Agents shall be entitled to
retain the Escrow Property until Escrow Agents shall have received (i) a final
non-appealable order of a court of competent jurisdiction directing delivery of
the Escrow Property or (ii) a written agreement executed by the other parties
hereto directing delivery of the Escrow Property, in which event Escrow Agents
shall disburse the Escrow Property in accordance with such order or agreement.
Any court order shall be accompanied by a legal opinion by counsel final and
non-appealable. Escrow Agents shall act on such court order and legal opinion
without further question.
j) No printed or other matter in any language
(including, without limitation, prospectuses, notices, reports and promotional
material) that mentions the names of the Escrow Agents or the rights, powers,
or duties of the Escrow Agents shall be issued by the other parties hereto or
on such parties' behalf unless Escrow Agents shall first have given their
specific written consent thereto.
k) The other parties hereto authorize Escrow Agents,
for any securities held hereunder, to use the services of any United States
central securities depository they reasonably deem appropriate, including,
without limitation, the Depositary Trust Company and the Federal Reserve Book
Entry System.
7. LIMITED RESPONSIBILITY. This Agreement expressly sets forth
all the duties of the Escrow Agents with respect to any and all matters
pertinent hereto. No implied duties or obligations shall be read into this
agreement against Escrow Agents. Escrow Agents shall not be bound by the
provisions of any agreement among the other parties hereto except this
Agreement.
8. NOTICES. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt)
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and telecopier numbers set forth below (or to such other addresses
and telecopier numbers as a party may designate by notice to the other
parties):
DEPOSITOR: IMC Mortgage Company
00000 X. Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxx, President
Facsimile No.: (000) 000-0000
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ASSOCIATES: [See EXHIBIT A hereto]
ESCROW AGENT: Xxxxxx X. Xxxxxxx
00000 X. Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx XX 00000
Facsimile No.: 813/968-7182
ESCROW AGENT: Xxxxxx X. Xxxxxx
00000 X. Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx XX 00000
Facsimile No.: 813/968-9863
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9. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Florida, County of Hillsborough, or, if it has or can acquire jurisdiction,
in the United States District Court for the Middle District of Florida, and
each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original and all of which,
when taken together, will be deemed to constitute one and the same.
11. SECTION HEADINGS. The headings of sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation.
12. WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement or the documents referred to in this
Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party;
(b) no waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on one
party will be deemed to be a waiver of any obligation of such party or of the
right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement or the documents referred to in
this Agreement.
13. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Florida, without regard to conflicts of law principles.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first written above.
IMC MORTGAGE COMPANY
By:
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Xxxxxx X. Xxxxxxx
Its: President
(DEPOSITOR)
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XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXX
(ESCROW AGENTS)
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EXHIBIT A
SCHEDULE OF ASSOCIATES
EXHIBIT B
[SEVERANCE AGREEMENT]
