EXHIBIT 10.2
AMENDED AND RESTATED
COLLATERAL AGENCY AND SECURITY AGREEMENT
This AMENDED AND RESTATED COLLATERAL AGENCY AND SECURITY AGREEMENT (as it
may be amended, supplemented or otherwise modified from time to time, this
"Agreement") is dated as of June 28, 2001 and is made by and between Imperial
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Credit Industries, Inc. (the "Grantor") in favor of and for the benefit of
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Wilmington Trust Company ("WTC"), acting hereunder not individually but solely
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as collateral agent (in such capacity, the "Collateral Agent") for the benefit
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of (i) the Senior Secured Debt Purchasers, (ii) from and after the Debt Exchange
Closing Date, Chase Manhattan Bank and Trust Company, N.A. ("Senior Debt
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Trustee"), not individually but solely as trustee for the holders of the
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Exchange Notes and (iii) from and after the Convertible Subordinated Debt
Placement Closing Date, Chase Manhattan Bank and Trust Company, N.A.
("Subordinated Debt Trustee"), not individually but solely as trustee for the
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Convertible Subordinated Debt Purchasers (the Senior Secured Debt Purchasers,
the Senior Debt Trustee and the Subordinated Debt Trustee, together with any
successors and assigns, are individually referred to herein as a "Secured Party"
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and collectively referred to herein as the "Secured Parties").
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PRELIMINARY STATEMENTS
Pursuant to that certain Master Recapitalization Agreement dated as of
March 29, 2001 (said agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Recapitalization Agreement"), the Senior
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Secured Debt Purchasers agreed to loan $16,200,000 to the Grantor and the
Signatory Debtholders agreed to tender their Old Notes to the Grantor in
exchange for Exchange Notes and certain other consideration pursuant to the Debt
Exchange. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Recapitalization Agreement.
It was a condition precedent to the closing of the transactions
contemplated by the Recapitalization Agreement that the Grantor and WTC in its
capacity as Collateral Agent shall have entered into that certain Collateral
Agency and Security Agreement dated as of March 29, 2001 (the "Original Security
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Agreement") and that the Grantor shall have granted the assignments and security
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interests and made the pledges and assignments contemplated thereunder.
The obligations of the Grantor under the Senior Secured Debt and, from and
after the Debt Exchange Closing Date, the Exchange Notes were to be secured
pursuant to the Original Security Agreement.
The parties to the Recapitalization Agreement have agreed that from and
after the Convertible Subordinated Debt Placement Closing Date the Convertible
Subordinated Debt should be secured by the collateral described in the Original
Security Agreement and that the Original Security Agreement should be amended
and restated to so provide.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Convertible Subordinated Debt Purchasers to purchase the Convertible
Subordinated Debt, the
parties hereto hereby agree that the Original Security Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. Grant of Security. The Grantor hereby assigns and pledges
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to the Collateral Agent (i) for the benefit of the Senior Secured Debt
Purchasers and (ii) from and after the Debt Exchange Closing Date, for the
benefit of (x) the Senior Secured Debt Purchasers, the Subordinated Debt Trustee
as trustee for the Convertible Subordinated Debt Purchasers (to the extent the
Convertible Subordinated Debt is then outstanding) and the Senior Debt Trustee
as trustee for the holders of the Exchange Notes for so long as the Senior
Secured Debt is issued and outstanding and (y) from and after the payment in
full or exchange of the Senior Secured Debt, the Subordinated Debt Trustee as
trustee for the Convertible Subordinated Debt Purchasers (to the extent the
Convertible Subordinated Debt is then outstanding) and the Senior Debt Trustee
as trustee for the holders of the Exchange Notes, and hereby grants to the
Collateral Agent for the benefit of such Secured Parties a security interest in,
all of the Grantor's right, title and interest, whether now owned or hereafter
acquired, in and to the following (collectively, the "Collateral"):
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(a) all of the following:
(i) the indebtedness (the "Pledged Debt") described on
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Schedule I and owing to the Grantor by the issuers named therein and
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the instruments evidencing the Pledged Debt, and all interest, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Debt;
(ii) all additional indebtedness from time to time owed to the
Grantor by any obligor of the Pledged Debt or any other Person and the
instruments evidencing such indebtedness, and all interest, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of such indebtedness; and
(iii) the shares of capital stock described on Schedule II
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(the "Pledged Securities"), together with any other shares, stock
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certificates, options or warrants of any issuer listed in Schedule II
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that may be issued or granted to, or held by, the Grantor while this
Agreement is in effect; and
(b) all proceeds of any and all of the foregoing Collateral.
The parties hereto have agreed, and by their execution hereof acknowledge, that
the Grantor may request that any or all of the instruments evidencing any
Pledged Debt be released from the lien of this Agreement upon the exchange
thereof for (i) another instrument evidencing indebtedness from Southern Pacific
Bank (which instrument shall, without any further action by any party hereto,
become Pledged Debt for all purposes hereof) or (ii) any shares of capital stock
of Southern Pacific Bank (which instrument shall, without any further action by
any party hereto, become Pledged Securities for all purposes hereof).
Similarly, the Grantor may request that any or all of the stock certificates
evidencing the Pledged Securities be released from the lien of this Agreement
upon the exchange thereof for (i) any shares of another class of capital stock
of
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Southern Pacific Bank (which shares shall, without further action by any party
hereto, become Pledged Securities for all purposes hereof) or (ii) any
instrument evidencing indebtedness of Southern Pacific Bank (which shall,
without any further action by any party hereto, become Pledged Debt for all
purposes hereof). By their acceptance hereof, the Senior Secured Debt
Purchasers, the Senior Debt Trustee (acting solely pursuant to the authority
granted in Section 11.01 of the Exchange Notes Indenture), and the Subordinated
Debt Trustee (acting solely pursuant to the authority granted in Section 11.01
of the Subordinated Debt Indenture) authorize the Collateral Agent to release
from the security interest hereof any Pledged Debt or Pledged Securities held by
it hereunder upon the exchange of such Pledged Debt or Pledged Securities for
other indebtedness or capital stock of Southern Pacific Bank so long as such
indebtedness or stock is pledged to the Collateral Agent and is subject to the
security interests granted hereby for all purposes.
SECTION 2. Security for Obligations. This Agreement secures, and the
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Collateral is collateral security for, the prompt payment and performance in
full when due, whether on a specified payment date, at stated maturity, by
acceleration or otherwise (including, without limitation, the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code or any similar law) of all obligations of the
Grantor under (i) the Senior Secured Debt, and (ii) from and after the
Subordinated Debt Exchange Closing Date, (x) the Senior Secured Debt, the
Convertible Subordinated Debt (to the extent outstanding) and the Exchange Notes
for so long as the Senior Secured Debt is issued and outstanding and (y) from
and after the payment in full or exchange of the Senior Secured Debt, the
Exchange Notes and the Convertible Subordinated Debt (to the extent
outstanding), including interest (including, without limitation, interest that,
but for the filing of a petition in bankruptcy would accrue on such obligations)
or any fees or other expenses related thereto (any and all such obligations
being the "Secured Obligations").
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SECTION 3. Delivery of Collateral. All certificates or instruments
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representing or evidencing Collateral shall be delivered to and held by or on
behalf of the Collateral Agent on behalf of the Secured Parties entitled to the
benefit thereof pursuant to the terms hereof and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Secured Parties entitled to the benefit thereof pursuant to the terms hereof.
The Collateral Agent shall have the right after the occurrence and during the
continuance of an Event of Default (as defined in Section 6(a)(v)) beyond any
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grace period applicable thereto to transfer to or to register in the name of the
Collateral Agent or any of its nominees any or all of the Collateral. In
addition, the Collateral Agent shall have the right after the occurrence and
during the continuance of an Event of Default beyond any grace period applicable
thereto to exchange instruments representing or evidencing the Collateral, for
instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. The Grantor hereby
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represents and warrants as follows:
(a) The chief place of business and chief executive office of the
Grantor is located at the address specified for the Grantor on Schedule
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III. The Grantor's federal tax identification number is as set forth on
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Schedule III.
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(b) The Grantor is the legal and beneficial owner of the Collateral
free and clear of any lien. No effective financing statement or other
instrument similar in effect covering all or any part the Collateral is on
file in any recording office, except such as may have been filed relating
to this Agreement.
(c) Assuming continuous possession by the Collateral Agent on behalf
of the Secured Parties entitled to the benefit thereof pursuant to the
terms hereof, the pledge of each of the Pledged Debt and Pledged Securities
pursuant to this Agreement creates a valid and first priority perfected
security interest in the Pledged Debt and Pledged Securities, respectively.
(d) All shares of capital stock described on Schedule II are duly
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authorized, validly issued, fully paid and non-assessable.
(e) The Pledged Debt described on Schedule I constitutes 100% of the
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outstanding indebtedness of the Bank to the Grantor and its Affiliates
(excluding any indebtedness arising from deposit accounts or bank accounts
maintained by the Grantor and its Affiliates with the Bank) and the Pledged
Securities described on Schedule II represent 100% of the total issued and
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outstanding shares of capital stock of the Bank.
(f) The execution and delivery of this Agreement and the performance
by the Grantor of its obligations hereunder are within the Grantor's
corporate power, have been duly authorized by all necessary corporate
action and do not and will not contravene or conflict with any provision of
law or of the organizational documents of the Grantor or of any agreement,
indenture, instrument or other document, or any judgment, order or decree,
which is binding upon the Grantor.
(g) This Agreement is a legal, valid and binding obligation of the
Grantor, enforceable in accordance with its terms, except that the
enforceability of this Agreement may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and creates a
valid and, after all appropriate financing statements are filed, first
priority security interest in the Collateral and such security interest is
entitled to all rights, priorities and benefits afforded by the Uniform
Commercial Code in effect in the State of California (the "Uniform
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Commercial Code").
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SECTION 5. Further Assurances.
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(a) The Grantor agrees from time to time that, at the expense of the
Grantor, the Grantor will promptly execute and deliver all further
instruments and documents, and take all further action required, or that
the Collateral Agent may reasonably request, in order to perfect, protect
and maintain the priority of any pledge, assignment or security interest
granted or purported to be granted hereunder or to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
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(b) The Grantor hereby authorizes the Collateral Agent on behalf of
the Secured Parties entitled to the benefit thereof pursuant to the terms
hereof to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without
the signature of the Grantor where permitted by law. A photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
SECTION 6. Voting Rights; Dividends; Payments; etc.
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(a) Until the occurrence of an Event of Default and the continuance
thereof beyond any grace period applicable thereto:
(i) The Grantor shall be entitled to exercise any and all
voting or consensual rights and powers and stock purchase or
subscription rights relating or pertaining to the Pledged Securities
for any purpose;
(ii) The Grantor shall be entitled to receive and retain any
and all lawful dividends payable in respect of the Pledged Securities
which are paid in cash by any issuer, but all dividends and
distributions in respect of such Collateral or any part thereof made
in shares of stock or other property or representing any return of
capital, whether resulting from a subdivision, combination or
reclassification of such Collateral or any part thereof or received in
exchange for such Pledged Securities or any part thereof or as a
result of any merger, consolidation, acquisition or other exchange of
assets to which any issuer of Pledged Securities may be a party or
otherwise or as a result of any exercise of any stock purchase or
subscription right, shall be and become part of the Collateral
hereunder and, if received by the Grantor, shall be forthwith
delivered to the Collateral Agent on behalf of the Secured Parties in
due form for transfer (i.e., endorsed in blank or accompanied by stock
or bond powers executed in blank) to be held for the purposes of this
Agreement.
(iii) The Collateral Agent shall execute and deliver, or cause
to be executed and delivered, to the Grantor, all such proxies, powers
of attorney, dividend orders and other instruments as the Grantor may
request in writing (upon which the Collateral Agent may fully rely)
for the purpose of enabling the Grantor to exercise the rights and
powers which it is entitled to exercise pursuant to subclause (i)
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above and to receive the dividends which it is authorized to retain
pursuant to subclause (ii) above.
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(iv) The Grantor shall be entitled to (A) collect all regular
payments made or proceeds received with respect to the Pledged Debt
and (B) enforce and prosecute all rights and remedies available under
any of the Pledged Debt.
(v) For all purposes under this Agreement, "Event of Default"
means (A) prior to the Debt Exchange Closing Date, an Event of Default
as defined in the Senior Secured Debt, (B) from and after the Debt
Exchange Closing Date and
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so long as any Senior Secured Debt shall remain outstanding, an Event
of Default as defined in the Exchange Notes Indenture or in the Senior
Secured Debt, (C) after the Senior Secured Debt has been paid in full,
an Event of Default as defined in the Exchange Notes Indenture and (D)
after the Senior Secured Debt and the Exchange Notes have been paid in
full, an Event of Default as defined in the Secured Convertible
Subordinated Debt.
(b) After the occurrence of an Event of Default and the continuance
thereof beyond any grace period applicable thereto, all rights and powers
which the Grantor is entitled to exercise pursuant to Section 6(a)(i)
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hereof, and all rights of the Grantor to receive and retain dividends
pursuant to Section 6(a)(ii) hereof, and all rights of the Grantor to
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receive payments pursuant to Section 6(a)(iv) hereof, shall forthwith
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cease, and all such rights and powers shall thereupon become vested in the
Collateral Agent which shall have, during the continuance of such Event of
Default, the sole and exclusive authority to exercise such rights and
powers and to receive such dividends and payments. Any and all money and
other property paid over to or received by the Collateral Agent pursuant to
this clause (b) shall be retained by the Collateral Agent as additional
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Collateral hereunder and applied in accordance with the provisions hereof.
SECTION 7. Place of Perfection; Records. The Grantor shall keep its
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chief place of business and chief executive office and the office where it keeps
its records concerning the Collateral, at the location therefor specified on
Schedule III or, upon prior written notice to the Collateral Agent, at such
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other locations in a jurisdiction where all actions required by Section 5 shall
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have been taken with respect to the Collateral.
SECTION 8. Transfers and Other Liens; Additional Shares. Except as
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otherwise permitted under the Recapitalization Agreement, the Grantor shall not
(a) sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Collateral, or (b) create or suffer
to exist any Lien upon or with respect to any of the Collateral.
SECTION 9.
(a) Appointment and Authorization of Collateral Agent. By
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acceptance of the Senior Secured Debt or execution and delivery of the
Exchange Notes Indenture or the Subordinated Debt Indenture, as the case
may be, each Secured Party hereby irrevocably designates and appoints WTC
as the Collateral Agent of such Secured Party under this Agreement and each
Secured Party hereby irrevocably authorizes the Collateral Agent to execute
this Agreement and (i) to take action on its behalf and exercise such
powers and use such discretion as are expressly permitted hereunder and all
instruments relating hereto and thereto and (ii) to exercise such powers
and perform such duties as are, in each case, expressly delegated to the
Collateral Agent by terms hereof and thereof together with such other
powers and discretion as are reasonably incidental hereto and thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Collateral Agent shall not have any duties or responsibilities except
those expressly set forth herein or therein or any fiduciary relationship
with any Secured Party and no
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implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against
the Collateral Agent.
(b) Delegation of Duties. The Collateral Agent may exercise its
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powers and execute any of its duties under this Agreement by or through
employees, agents or attorneys-in-fact and shall be entitled to take and to
rely on advice of counsel concerning all matters pertaining to such powers
and duties. The Collateral Agent may use the services of such persons as
the Collateral Agent in its sole discretion may determine and all
reasonable fees and expenses of such persons shall be borne by the Grantor.
(c) Exculpatory Provisions. Neither the Collateral Agent nor any
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of its officers, partners, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action taken or omitted to be
taken by it or such Person under or in connection with this Agreement or
any Collateral (except for its or such person's own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the
Secured Parties for any recitals, statements, representations or warranties
made by the Grantor or any officer thereof contained in, or made or deemed
to be made in connection with, any Senior Secured Debt, Convertible
Subordinated Debt, Exchange Notes, or this Agreement or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Collateral Agent under or in connection with, this
Agreement or any Senior Secured Debt, Convertible Subordinated Debt or
Exchange Notes, or for the due execution, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of the Senior
Secured Debt, Convertible Subordinated Debt, Exchange Notes or this
Agreement or any other document or instrument furnished pursuant thereto or
for any failure of the Grantor to perform its obligations thereunder. The
Collateral Agent shall be under no obligation to the Secured Parties to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, statements made in, or conditions of the Senior
Secured Debt, Convertible Subordinated Debt, Exchange Notes or this
Agreement or to inspect the property, including the books and records, of
the Grantor.
(d) Reliance by the Collateral Agent. The Collateral Agent shall
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be entitled to rely, and shall be fully protected and shall incur no
liability in acting and relying, upon any writing, resolution, notice,
consent, certificate, affidavit, telegram, telecopy, telex or teletype
message, statement, order or other document or telephone conversation
reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or persons and upon advice and
statements of legal counsel, including without limitation counsel to the
Grantor, independent accountants and other experts selected by the
Collateral Agent. Without limiting the generality of the foregoing, the
Collateral Agent may treat the payee of any Senior Secured Debt,
Convertible Subordinated Debt or Exchange Note as the registered holder
thereof until it receives notice or otherwise has actual knowledge that
such payee is no longer the registered holder of such Senior Secured Debt
or Exchange Note. Notwithstanding anything to the contrary contained
herein, the Collateral Agent shall be fully justified in failing or
refusing to take action under this Agreement, including without limitation
the exercise of any rights or remedies under, or the entering into of any
agreement amending, modifying, supplementing, waiving any provision of, or
the giving of consent pursuant
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to, any provision of this Agreement, unless it shall first receive
instructions of the Required Noteholders (as defined below) as contemplated
by Section 10 hereof and it shall first be indemnified to its reasonable
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satisfaction by the Senior Secured Debt Purchasers, the holders of the
Exchange Notes and/or the Convertible Subordinated Debt Purchasers against
any and all liability and expense that may be incurred by it by reason of
taking, continuing to take or refraining from taking any such action. For
the purpose hereof, the "Required Noteholders" shall mean, at any time,
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the holders of at least 51% of the outstanding principal amount of all
Senior Secured Debt, until such time as no Senior Secured Debt shall be
outstanding, at which time "Required Noteholders" shall mean the Senior
Debt Trustee acting at the direction of the holders of a majority in
principal amount of the then outstanding Exchange Notes as provided in
Section 6.05 of the Exchange Notes Indenture, until such time as no
Exchange Notes shall be outstanding, at which time "Required Noteholders"
shall mean the Subordinated Debt Trustee acting at the direction of the
holders of a majority in principal amount of the then outstanding
Convertible Subordinated Notes as provided in Section 6.05 of the
Subordinated Debt Indenture. The Collateral Agent shall in all such cases
be fully protected in acting or in refraining from acting under this
Agreement in accordance with the provisions of Section 10(e) hereof and in
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accordance with written instructions and any action taken or any failure to
act pursuant thereto shall be binding upon all the Secured Parties and all
other holders from time to time of the Senior Secured Debt and Exchange
Notes.
(e) Knowledge or Notice of Default and Event of Default. The
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Collateral Agent shall not be deemed to have actual, constructive, direct
or indirect knowledge or notice of the occurrence of any Default or Event
of Default unless and until the Collateral Agent has received written
notice from a Secured Party or the Grantor describing such Default (as
defined below) or Event of Default, setting forth in reasonable detail the
facts and circumstances thereof and stating that the Collateral Agent may
rely on such notice without further inquiry. The Collateral Agent shall
have no obligation or duty prior to or after receiving any such notice to
inquire whether a Default or Event of Default has in fact occurred and
shall be entitled to rely, and shall be fully protected in so relying, on
any such notice furnished to it. For the purpose hereof, "Default" means
(A) prior to the Debt Exchange Closing Date, a Default as defined in the
Senior Secured Debt, (B) from and after the Debt Exchange Closing Date and
so long as any Senior Secured Debt shall remain outstanding, a Default as
defined in the Exchange Notes Indenture or the Senior Secured Notes, (C)
after the Senior Secured Debt has been paid in full, a Default as defined
in the Exchange Notes Indenture and (D) after the Exchange Notes have been
paid in full, a Default as defined in the Subordinated Debt Indenture.
(f) Non-Reliance on Collateral Agent and Other Secured Parties. By
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acceptance of the Senior Secured Debt or execution and delivery of the
Exchange Notes Indenture or the Subordinated Debt Indenture, as the case
may be, each Secured Party expressly acknowledges that, except as expressly
set forth in this Agreement, neither the Collateral Agent nor any of the
Collateral Agent's partners, officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties
to it and that no act by the Collateral Agent hereinafter taken, including
any review of the affairs of the Grantor, shall be deemed to constitute any
representation or warranty by the Collateral Agent to any Secured Party.
Except for notices, reports and
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other documents expressly required to be furnished by the Collateral Agent
hereunder, the Collateral Agent shall not have any duty or responsibility
to provide the Secured Parties with any credit or other information
concerning the business, operations, property, financial and other
condition and credit-worthiness of the Grantor that may come into the
possession of the Collateral Agent or any of its partners, officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
(g) Indemnification. The Grantor agrees to indemnify WTC from and
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against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time, including, without limitation, at any time
following the payment of the Secured Obligations, be imposed on, incurred
by or asserted against the Collateral Agent in any way relating to or
arising out of its capacity as Collateral Agent or the Recapitalization
Agreement or the Related Agreements or actions or omissions of the
Collateral Agent specifically required or permitted by this Agreement or by
written instructions of the Required Noteholders pursuant to Section 10(c)
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hereof, including without limitation, costs incurred in performance of its
duties under Section 9(a), provided that the Grantor shall not be liable
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for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Collateral Agent's gross negligence
of willful misconduct. The agreements in this Section 9(g) shall survive
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the payment of the Secured Obligations and the termination of this
Agreement.
(h) Collateral Agent in its Individual Capacity. The Collateral
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Agent and its Affiliates may generally engage in any kind of business with
the Grantor as though such person was not the Collateral Agent hereunder
and without any duty to account therefore to the Secured Parties.
(i) Successor Collateral Agent.
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(i) The Collateral Agent may resign at any time upon 60 days
notice to the Secured Parties and Grantor and may be removed at any
time, with or without cause, by the Required Noteholders by written
notice delivered to the Grantor, the Collateral Agent and the Secured
Parties. After any resignation or removal hereunder of the Collateral
Agent, the provisions of this Section 9(i) shall continue to inure to
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its benefit as to any actions taken or omitted to be taken by it in
connection with its agency hereunder while it was the Collateral Agent
under this Agreement and it shall be entitled to be paid promptly when
due any amounts owing to it pursuant to Section 9.6.
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(ii) Upon receiving notice of any such resignation or removal,
a successor Collateral Agent shall be appointed by the Required
Noteholders, provided, however, that such successor Collateral Agent
shall be (A) a Person having a combined capital and surplus of at
least $50 million and (B) authorized under bylaw to assume the
functions of the Collateral Agent. If the appointment of such
successor shall not have become effective, as provided below, within
such 60-day period after the Collateral Agent's resignation or upon
removal of the
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Collateral Agent, then the Collateral Agent may petition a court of
competent jurisdiction for the appointment of a Collateral Agent. Such
court shall, after such notice as it may deem proper, appoint a
successor Collateral Agent meeting the qualifications specified in
this Section 9(i)(ii).
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(iii) The resignation or removal of a Collateral Agent shall
become effective upon the execution and delivery of such documents or
instruments as are necessary to transfer the rights and obligations of
the Collateral Agent under this Agreement, including without
limitation, the delivery and recordation of all amendments,
instruments, financing statements, continuation statements and other
documents necessary to maintain the perfection of the security
interests held by the Collateral Agent under this Agreement. Copies of
each such document or instrument shall be delivered to all Secured
Parties. The appointment of a successor Collateral Agent pursuant to
this Section 9(i) shall become effective upon the acceptance of the
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appointment as Collateral Agent hereunder by a successor Collateral
Agent. Upon such effective appointment, the successor Collateral Agent
shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent and the
retiring Collateral Agent shall be discharged from its rights, powers,
privileges and duties under this Agreement, but shall remain liable
for its actions prior to and including such date of discharge.
SECTION 10. Actions by the Collateral Agent.
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(a) Duties and Obligations. The duties and obligations of the
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Collateral Agent are only those set forth in this Agreement.
(b) Notification of Default. If the Collateral Agent has been
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notified in a writing conforming to the requirements of Sections 9 (d) and
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(e) by any Secured Party or Grantor that a Default or an Event of Default
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has occurred, the Collateral Agent shall promptly furnish, and in any event
no later than three Business Days after receipt of such notice, to the
Secured Parties a copy of such written notice (a "Default Notice"). The
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failure of any Secured Party having knowledge of the occurrence of a
Default or an Event of Default to notify the Collateral Agent or any
Secured Party of such occurrence, however, does not constitute a waiver of
such Default or Event of Default by the Secured Parties. If the Required
Noteholders have not given prior instructions to the Collateral Agent, the
Default Notice may contain a recommendation of actions to be taken by the
Secured Parties and/or request instructions from the Secured Parties and
shall specify the date on which responses are due in order to be timely
within Section 10(d) hereof. If the Required Noteholders have given
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prior instructions to the Collateral Agent, the Collateral Agent shall take
the actions requested by the Required Noteholders and the Default Notice
shall inform the other Secured Parties of such actions.
(c) Exercise of Remedies. Except as otherwise provided in Section
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10(e) and Section 21, the Collateral Agent shall take only such actions
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and exercise only such remedies under this Agreement as are approved in
written instructions delivered to the Collateral Agent and signed by the
Required Noteholders. If the Collateral Agent shall
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determine in good faith that taking the actions specified in such
instructions is contrary to law, it may refrain, and shall be fully
protected in so refraining, from taking such action and shall immediately
give notice of such fact to each of the Secured Parties. If instructions
received by the Collateral Agent are in its good faith judgment ambiguous
or conflict with other instructions received by the Collateral Agent, the
Collateral Agent (a) shall promptly notify the Secured Parties of such
ambiguity or conflict and request clarifying instructions, and (b) may
either (1) delay in taking any such action or exercising any such remedy
pending receipt of such clarifying instructions, and shall be fully
protected in so delaying, or (2) take such actions as it is entitled under
Section 10(e).
-------------
(d) Instructions from Senior Secured Debt Purchasers. If any
------------------------------------------------
Senior Secured Debt Purchaser does not respond in a timely manner to any
notice, including without limitation a Default Notice, from the Collateral
Agent or request for instructions within the time period specified by the
Collateral Agent in such notice or request for instructions, which shall be
a minimum of five Business Days, the Senior Secured Debt held by such
Senior Secured Debt Purchaser that would otherwise be included in a
determination of Required Noteholders shall not be included in the
determination of Required Noteholders for purposes of such notice or
request for instructions. Any action taken or not taken without the vote of
a Senior Secured Debt Purchaser under this Section 10(d) shall nevertheless
-------------
be binding on such Senior Secured Debt Purchaser.
(e) Emergency Actions. If the Collateral Agent has asked the
-----------------
Secured Parties for instructions and if the Required Noteholders have not
yet responded to such request, the Collateral Agent shall be authorized to
take, but shall not be required to take and shall in no event have any
liability for the taking or the failure to take, such actions, other than
any action described or permitted under Section 21 hereof, with regard to a
----------
Default or Event of Default that the Collateral Agent, in good faith,
believes to be reasonably required to promote and protect the interests of
the Secured Parties and to maximize both the value of the Collateral and
the present value of the recovery by the Secured Parties on the Secured
Obligations and shall give the Secured Parties appropriate notice of such
action, provided that once instructions with respect to such request have
been received by the Collateral Agent from the Required Noteholders, the
actions of the Collateral Agent shall be governed thereby and the
Collateral Agent shall not take any further action that would be contrary
thereto.
(f) Other Actions. The Collateral Agent shall have the right to
-------------
take such actions, or omit to take such actions, hereunder and not
inconsistent with the written instructions of the Required Noteholders
delivered pursuant to Section 10(c) hereof, including actions the
-------------
Collateral Agent deems necessary or appropriate to perfect or continue the
perfection of the liens on the Collateral for the benefit of the Secured
Parties. Except as otherwise provided by the applicable law, the Collateral
Agent shall have no duty as to any Collateral, the perfection, protection
or maintenance of any pledge, assignment or security interest in the
Collateral, the collection or protection of the Collateral or any income
thereon, including any duty to ascertain or take action with respect to
calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Collateral Agent has or is
deemed to have knowledge of such matters, nor as to the
11
preservation of rights against prior parties, nor as to the preservation of
rights pertaining to the Collateral beyond the safe custody of any
Collateral in the Collateral Agent's actual possession.
(g) Cooperation. To the extent that the exercise of the rights,
-----------
powers and remedies of the Collateral Agent in accordance with this
Agreement requires that any action be taken by any Secured Party, by
acceptance of the Senior Secured Debt or the Exchange Notes, as the case
may be, such Secured Party agrees to take such action and cooperate with
the Collateral Agent to ensure that the rights, powers and remedies of all
Noteholders are exercised in full.
(h) Distribution of Proceeds. All amounts owing with respect to
------------------------
the Secured Obligations shall be secured by the Collateral without
distinction as to whether some Secured Obligations are then due and payable
and other Secured Obligations are not then due and payable. Upon any
realization upon the Collateral, by acceptance of the Senior Secured Debt
or execution and delivery of the Exchange Notes Indenture or the
Subordinated Debt Indenture, as the case may be, the Secured Parties agree
that the proceeds thereof shall be applied, (i) first, to the amounts owing
by the Grantor to the Collateral Agent solely in its capacity as Collateral
Agent hereunder pursuant to this Agreement, (ii) second, ratably to the
payment of all amounts of interest outstanding on the Senior Secured Debt
according to the aggregate amounts of such interest then owing to each
Senior Secured Debt Purchaser, (iii) third, ratably to all amounts of
principal outstanding under the Senior Secured Debt according to the
aggregate amounts of such principal then owing to each Senior Secured Debt
Purchaser, (iv) fourth, ratably to all other amounts then due to the Senior
Secured Debt Purchasers, including fees and expenses, (v) fifth, to all
fees and out-of-pocket expenses owed to the Senior Debt Trustee and
Subordinated Debt Trustee under the Exchange Note Indenture and the
Subordinated Debt Indenture, as the case may be, (vi) sixth, ratably to the
payment of all amounts of interest outstanding on the Exchange Notes
according to the aggregate amounts of such interest then owing to each
holder thereof, (vii) seventh, ratably to all amounts of principal
outstanding under the Exchange Notes according to the aggregate amounts of
principal then owing to each holder thereof, (viii) eighth, ratably to all
other amounts then due to the holders of the Exchange Notes, including fees
and expenses, (ix) ninth, ratably to the payment of all amounts of interest
outstanding on the Convertible Subordinated Debt according to the aggregate
amounts of interest then owing to each Convertible Subordinated Debt
Purchaser, (x) tenth, ratably to all amounts of principal outstanding under
the Convertible Subordinated Debt according to the aggregate amounts of
principal then owing to each Convertible Subordinated Debt Purchaser, (xi)
eleventh, ratably to all other amounts then due to the Convertible
Subordinated Debt Purchasers, including fees and expenses and (xii)
twelfth, the balance, if any, shall be returned to the Grantor or such
other Persons as are entitled thereto. Upon the request of the Collateral
Agent prior to any distribution under this Section 10(h), each Secured
-------------
Party shall provide to the Collateral Agent certificates, in form and
substance reasonably satisfactory to the Collateral Agent, setting forth
the respective amounts referred to in clauses (ii) through (xi) above that
each such Secured Party believes it is entitled to receive, together with
such wire transfer information or other payment instructions as the
Collateral Agent may reasonably request.
12
(i) Authorized Investments. Prior to any realization upon the
----------------------
Collateral, any and all funds held by the Collateral Agent in its capacity
as Collateral Agent, whether pursuant to any provision of this Agreement
shall, to the extent feasible, within a reasonable time, be invested by the
Collateral Agent in Permitted Investments (as defined on Schedule IV).
Prior to making such investment or to the extent it is not feasible to
invest such funds in Permitted Investments, the Collateral Agent shall hold
any such funds in an interest bearing account. By acceptance of the Senior
Secured Debt or the Exchange Notes, as the case may be, each Secured Party
authorizes the Collateral Agent to open such an account. Any interest
earned on such funds shall be retained in such account until there shall be
a realization on the Collateral, at which time such funds shall be
disbursed to the Secured Parties in accordance with Section 10(h). The
-------------
Collateral Agent shall have no duty to place funds held and invested
pursuant to this Section 10(i) in investments that provide for a maximum
-------------
return. The Collateral Agent shall not be responsible for any loss of any
funds invested in accordance with this Section 10(i).
-------------
SECTION 11. Priority of Notes.
-----------------
(a) From and after the Debt Exchange Closing Date until all Senior
Secured Debt shall have been paid in full, exchanged for Exchange Notes or
otherwise retired, in the event of:
(i) the occurrence of an Event of Default (as such term is
defined in the Senior Secured Debt) and continuance thereof beyond any
grace period provided in the Senior Secured Debt;
(ii) any acceleration of the maturity of any other indebtedness
of the Grantor, or
(iii) the institution of any liquidation, dissolution,
bankruptcy, insolvency or similar proceeding relating to the Grantor,
its property, or its creditors as such,
the holders of the Exchange Notes and the Convertible Subordinated Debt
Purchasers shall not be entitled to receive and, by execution and delivery of
the Exchange Notes Indenture or the Subordinated Debt Indenture, as the case may
be, the Senior Debt Trustee and the Subordinated Debt Trustee, on behalf of the
holders of the Exchange Notes and the Convertible Subordinated Debt Purchasers,
agree not to accept, any payment of principal or interest until all amounts
owing in respect of the Senior Secured Debt shall have been paid in full; and
from and after the happening of any event described in clause (iii) of this
subsection (a) of Section 11, all payments and distributions of any kind or
----------
character (whether in cash, securities or property) which, except for the
provisions hereof, would have been payable or distributable to or for the
benefit of the holders of the Exchange Notes or the Convertible Subordinated
Debt Purchasers, shall be made to and for the benefit of the Senior Secured Debt
Purchasers (who shall be entitled to make all necessary claims therefore) in
accordance with the priorities of payment set forth herein until all Senior
Secured Debt shall have been paid in full. In the event that any payment or
distribution is made with respect to the Exchange
13
Notes or the Convertible Subordinated Debt in violation of the terms hereof, any
Secured Party receiving such payment or distribution shall (and, by acceptance
of the Exchange Notes or the Convertible Subordinated Debt, agrees to) hold it
in trust for the benefit of, and shall remit it to, the Senior Secured Debt
Purchasers in accordance with the priorities of payment set forth herein.
(b) From and after all Senior Secured Debt shall have been paid in
full, exchanged for Exchange Notes or otherwise retired, and until the
Exchange Notes shall have been paid in full or otherwise retired, in the
event of:
(i) the occurrence of an Event of Default (as such term is
defined in the Exchange Notes Indenture) and continuance thereof
beyond any grace period provided in the Exchange Notes Indenture;
(ii) any acceleration of the maturity of any other indebtedness
of the Grantor, or
(iii) the institution of any liquidation, dissolution,
bankruptcy, insolvency or similar proceeding relating to the Grantor,
its property, or its creditors as such,
the Convertible Subordinated Debt Purchasers shall not be entitled to receive
and, by execution and delivery of the Subordinated Debt Indenture, the
Subordinated Debt Trustee, on behalf of the holders of the Convertible
Subordinated Debt agree not to accept, any payment of principal or interest
until all amounts owing in respect of the Exchange Notes shall have been paid in
full; and from and after the happening of any event described in clause (iii) of
this subsection (b) of Section 11, all payments and distributions of any kind
----------
or character (whether in cash, securities or property) which, except for the
provisions hereof, would have been payable or distributable to or for the
benefit of the Convertible Subordinated Debt Purchasers, shall be made to and
for the benefit of the holders of the Exchange Notes (who shall be entitled to
make all necessary claims therefore) in accordance with the priorities of
payment set forth herein until all Exchange Notes shall have been paid in full.
In the event that any payment or distribution is made with respect to the
Convertible Subordinated Debt in violation of the terms hereof, any Secured
Party hereof receiving such payment or distribution shall (and, by acceptance of
the Convertible Subordinated Debt, agrees to) hold it in trust for the benefit
of, and shall remit it to, the holders of the Exchange Notes in accordance with
the priorities of payment set forth herein.
SECTION 12. Status of Security Interests.
----------------------------
(a) From and after the Debt Exchange Closing Date until all Senior
Secured Debt shall have been paid in full, exchanged for Exchange Notes or
otherwise retired, the Collateral Agent, the Senior Debt Trustee, the
Subordinated Debt Trustee, and, by acceptance of the Senior Secured Debt,
the Exchange Notes or the Convertible Subordinated Debt, as the case may
be, the Senior Secured Debt Purchasers, the holders of Exchange Notes and
the Convertible Subordinated Debt Purchasers hereby agree that
14
(i) all of the Senior Secured Debt Purchasers' security interests, liens,
and other collateral interests in the Collateral and all of the Senior
Secured Debt Purchasers' rights and remedies, under law, agreement, or
otherwise, exercisable pursuant thereto (all of which interests and rights
are herein called the "Senior Rights") shall be senior and superior to (ii)
--------------
all of the holders of the Exchange Notes', the Senior Debt Trustee's, the
Convertible Subordinated Debt Purchasers' and the Subordinated Debt
Trustee's security interests, liens and other collateral interests in the
Collateral and all of the holders of Exchange Notes', the Senior Debt
Trustee's, the Convertible Subordinated Debt Purchasers' and the
Subordinated Debt Trustee's rights and remedies, under law, agreement or
otherwise, exercisable pursuant thereto (all of which interests and rights
are herein called the "Junior Rights").
-------------
(b) From and after all Senior Secured Debt shall have been paid in
full, exchanged for Exchange Notes or otherwise retired and until the
Exchange Notes have been paid in full or otherwise retired, the Collateral
Agent, the Senior Debt Trustee, the Subordinated Debt Trustee and, by
acceptance of the Convertible Subordinated Debt or the Exchange Notes, as
the case may be, the Convertible Subordinated Debt Purchasers and the
holders of Exchange Notes hereby agree that (i) all of the Senior Debt
Trustee's and the holders of Exchange Notes' security interests, liens, and
other collateral interests in the Collateral and all of the Senior Debt
Trustee's and the holders of Exchange Notes' rights and remedies, under
law, agreement, or otherwise, exercisable pursuant thereto (all of which
interests and rights are herein called the "Senior Rights") shall be senior
-------------
and superior to (ii) all of the Convertible Subordinated Debt Purchasers'
and the Subordinated Debt Trustee's security interests, liens and other
collateral interests in the Collateral and all of the Convertible
Subordinated Debt Purchasers' and the Subordinated Debt Trustee's rights
and remedies, under law, agreement or otherwise, exercisable pursuant
thereto (all of which interests and rights are herein called the "Junior
------
Rights").
------
(c) For purposes hereof, a party whose security interests are "senior
and superior" (as described in Sections 12(a) and 12(b)) shall possess the
-------------- -----
right, in its absolute discretion, (i) to make all decisions on the
disposition of any Collateral in which such party's security interests are
"senior and superior" (including, without limitation, foreclosing on such
collateral or refraining from foreclosing), notwithstanding that any or all
of the Grantor's obligations to the holders of the Junior Rights (as
defined for purposes of Sections 12(a) and 12(b), as applicable) may be due
-------------- -----
and owing or the Grantor may be in default in any other manner with regard
to its obligations to the holders of the Junior Rights, (ii) to exercise or
not exercise all rights granted to such secured party with regard to all or
any of such Collateral, (iii) to act on behalf of the holders of the Junior
Rights as their agent, not, however, at the direction of the holders of the
Junior Rights, but with full right and authority to make the judgments and
to take the actions such agent would be permitted to accomplish in its own
right with regard to its own Collateral pursuant to clauses (i) and (ii) of
this sentence and (iv) to apply all proceeds obtained from Collateral on
account of the Senior Rights (as defined for purposes of Sections 12(a) and
--------------
12(b), as applicable), in such order as the holder of the Senior Rights
-----
shall determine.
SECTION 13. Agreement Available Only to Parties and Collateral Agent.
--------------------------------------------------------
Notwithstanding anything to the contrary herein, the parties hereto have entered
into this
15
Agreement solely for their own benefit and in order to establish solely with
respect to each other and not with respect to the Grantor their respective
rights to payment of the Secured Obligations, their respective rights to the
proceeds of the Collateral and their respective rights and priorities with
respect to certain other matters, all as more fully set forth herein. No person
or entity other than the parties hereto shall have any rights, whether as third
party beneficiary or otherwise, under this Agreement, and no agreement,
statement or provision of this Agreement shall be deemed to be an admission by
or against any of the parties hereto or be used by any person or entity, except
the parties hereto, for any purpose whatsoever.
SECTION 14. Rights Unaffected. The relative rights of the parties
-----------------
herein in and to the Collateral set out in this Agreement shall be unaffected by
any consent or waiver with respect to, or renewal or extension of, the Secured
Obligations.
SECTION 15. Collateral Agent's Fees, Costs and Expenses. Grantor agrees
-------------------------------------------
to pay such fees to the Collateral Agent as mutually agreed from time to time
and to pay all reasonable out-of-pocket costs and expenses of the Collateral
Agent.
SECTION 16. Remedies. If any Event of Default shall have occurred and be
--------
continuing beyond any grace period applicable thereto:
(a) The Collateral Agent may exercise in respect of the Collateral,
in addition to all other rights and remedies provided for herein or
otherwise available to it under applicable law, all the rights and remedies
of a secured party upon default under the Uniform Commercial Code (whether
or not the Uniform Commercial Code applies to the affected Collateral) and
also may (i) require the Grantor to, and the Grantor hereby agrees that it
shall at its expense and upon request of the Collateral Agent forthwith,
assemble all or part of the Collateral as directed by the Collateral Agent
and make it available to the Collateral Agent at a place to be designated
by the Collateral Agent that is reasonably convenient to both parties, and
(ii) without notice, except as specified below, advertisement, hearing or
process of law of any kind, sell the Collateral or any part thereof in one
or more parcels free and clear of all rights and claims of the Grantor at
public or private sale, for cash, on credit or for future delivery, and
upon such other terms as the Collateral Agent may deem commercially
reasonable. The Grantor agrees that, to the extent notice of sale shall be
required by law, at least 10 Business Days' notice to the Grantor of the
time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification.
(b) All cash proceeds received in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may be
held by the Collateral Agent as collateral for, and/or then or at any time
thereafter applied (after payment of any fees and expenses of the
Collateral Agent) in whole or in part against, all or any part of the
Secured Obligations. Any surplus of such cash or cash proceeds remaining
after payment in full of all the Secured Obligations shall be promptly paid
over to the Grantor or to whomsoever may be lawfully entitled to receive
such surplus.
(c) The Collateral Agent is hereby authorized to comply with any
limitation or restriction in connection with any sale of Collateral as it
may be advised by counsel is
16
necessary in order to (i) avoid any violation of applicable law (including,
without limitation, compliance with such procedures as may restrict the
number of prospective bidders and purchasers and/or further restrict such
prospective bidders or purchasers to persons or entities who will represent
and agree that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such Collateral) or (ii)
obtain any required approval of the sale or of the purchase by any
governmental regulatory authority or official.
SECTION 17. Establishing Required Noteholders. In order to establish what
---------------------------------
constitutes the Required Noteholders, the Collateral Agent may request from time
to time, and, by acceptance of the Senior Secured Debt, the Senior Secured Debt
Purchasers agree to provide, certificates setting forth the amount of the Senior
Secured Debt held or represented by each Senior Secured Debt Purchaser, which
certificates the Collateral Agent shall be entitled to rely on.
SECTION 18. Amendments: Waivers; Etc. No amendment or waiver of any
------------------------
provision of this Agreement, and no consent to any departure by the Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Collateral Agent and the Grantor, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 19. Addresses for Notices. All notices and other communications
---------------------
provided to the parties hereto shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address or facsimile
number set forth below its signature hereto or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted.
SECTION 20. Continuing Security Interest; Assignments under the
---------------------------------------------------
Recapitalization Agreement. This Agreement shall create a continuing security
--------------------------
interest in the Collateral and shall: (a) remain in full force and effect until
all Secured Obligations have been paid in full, (b) be binding upon the Grantor,
its successors and assigns and (c) inure, together with the rights and remedies
of the Secured Parties hereunder, to the benefit of the Secured Parties and
their respective permitted successors, transferees and assigns.
SECTION 21. Termination. When all Secured Obligations have been paid in
-----------
full, the security interest granted hereby shall terminate and all rights to the
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof shall revert to the Grantor. Upon the termination of any such
security interest, the Collateral Agent shall promptly return to the Grantor,
upon the Grantor's request and at the Grantor's expense, such of the Collateral
(and, in the case of a release, such of the released Collateral) held by the
Collateral Agent as shall not have been sold or otherwise applied pursuant to
the terms hereof. The Collateral Agent will, at the Grantor's expense, execute
and deliver to the Grantor such other documents as the Grantor shall reasonably
request to evidence such termination or release, as the case may be.
17
SECTION 22. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY AND
--------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO CONFLICTS OF LAW PRINCIPLES, except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder, in respect
of any particular Collateral are governed by the laws of a jurisdiction other
than the State of New York and except that the rights and duties of WTC shall be
governed by and construed in accordance with the laws of the State of Delaware.
Unless otherwise defined herein or in the Recapitalization Agreement, terms used
in Article 9 of the Uniform Commercial Code are used herein as therein defined.
SECTION 23. Severability of Provisions. 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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 24. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be as
effective as delivery of a manually executed counterpart of this Agreement.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
IMPERIAL CREDIT INDUSTRIES, INC.
By:
-------------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Address: 23550 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY, in its capacity as
Collateral Agent on behalf of the Secured Parties
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Financial Services Officer
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EFFECTIVE ON THE DEBT EXCHANGE CLOSING DATE:
CHASE MANHATTAN BANK AND TRUST COMPANY, N.A.,
as Senior Debt Trustee for the holders of
Exchange Notes
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Vice President
Address:
----------------------
----------------------
Facsimile:
----------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
IMPERIAL CREDIT INDUSTRIES, INC.
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Address: 23550 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY, in its capacity as
Collateral Agent on behalf of the Secured Parties
By:
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address:
----------------------
----------------------
Facsimile:
----------------------
EFFECTIVE ON THE SUBORDINATED DEBT PLACEMENT CLOSING DATE
CHASE MANHATTAN BANK AND TRUST COMPANY, N.A., as
Subordinated Debt Trustee for the Convertible
Subordinated Debt Purchasers
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Schedule I
Pledged Debt
------------
1. Subordinated Note, dated March 31, 1997, issued to Imperial Credit
Industries, Inc. in the current principal amount of Twenty Million Dollars
($20,000,000), due and payable in full on March 31, 2007.
Schedule II
Pledged Securities
------------------
Class of Certificate Number
Issuer Capital Stock Number of Shares
------ -------------- ----------- ---------
Southern Pacific Bank Series B Preferred Stock PB-1 36,000
Southern Pacific Bank Series A Preferred Stock PA-1 50,000
Southern Pacific Bank Common Stock 6 75,000
Southern Pacific Bank Common Stock 5 125,000
Southern Pacific Bank Common Stock 4 8,334
Schedule III
Chief Place of Business and Chief Executive Office:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Building 1, Suite 110
Torrance, California 90505
Federal Tax Identification Number:
▇▇-▇▇▇▇▇▇▇
Schedule IV
Permitted Investments
(a) Securities issued or guaranteed by the United States of America or any
subdivision, agency or instrumentality thereof, or money market mutual
funds that invest solely in such obligations.
(b) Securities issued by any state or municipality within the United States of
America rated Aa or higher by ▇▇▇▇▇'▇ Investors Service, Inc. or AA or
higher by Standard & Poor's Rating's Services, a division of The ▇▇▇▇▇▇-
▇▇▇▇ Companies, Inc. ("S&P").
(c) Deposits in or certificates of deposit issued by a commercial bank which
has combined capital and surplus in excess of $1 billion and which has, or
the holding company of which has, a bond rating of at least A from ▇▇▇▇▇'▇
Investors Service, Inc. or A1 by S&P.
(d) Open market commercial paper rated P1 by ▇▇▇▇▇'▇ Investors Service, Inc. or
A1 by S&P.
(e) Bankers' acceptances from banks referred to in paragraph (c) above.
