EXHIBIT 99.3
EXCHANGE AGENT DEPOSITORY AGREEMENT
Dated:
Chase Trust Company of California
101 California Street, Suite #2725
San Francisco, CA 94111
Attn: Hank Helley, Assistant Vice President
Gentlemen:
Imperial Credit Capital Trust I (the "Purchaser") is offering to exchange upon
the terms and subject to the conditions set forth in that certain Exchange Offer
"the Offer", all of its outstanding Remarketed Par Securities, Series A (the
"Securities") for Remarketed Par Securities, Series B Exchange Date (the
"Exchange Date"). The Offer will expire at 5:00 P.M., New York City time, on
(date), unless such date is extended by the Purchaser (the "Exchange Offer
Expiration Date").
The Purchaser hereby agrees with you as follows:
1) Subject to the terms and conditions of this Agreement, you will act as
Depository in connection with the Offer, and in such capacity are authorized and
directed to accept tenders of Securities.
2) (a) Tenders of Securities may be made only as set forth in the
Exchange Offer and Securities shall be considered validly tendered to you only
if:
(i) you receive prior to the Exchange Offer Expiration Date (x)
certificates for such Securities, (or a Confirmation (as defined in paragraph
(b) below) relating to such Securities) or an Agent's Message (as defined in
paragraph (b) below) relating thereto; or
(ii) you receive (x) a Notice of Guaranteed Delivery (as defined in
paragraph (b) below) relating to such Securities from an Eligible Institution
(as defined in paragraph (b) below) prior to the Exchange Offer Expiration Date
and (y) certificates for such Securities (or a Confirmation relating to such
Securities) or an Agent's Message relating thereto at or prior to 5:00 P.M., New
York City time, on the third New York Stock Exchange, Inc. (the "NYSE") trading
day after the date of execution of such Notice of Guaranteed Delivery; and
(iii) in the case of either clause (i) or (ii) above, a final
determination of the adequacy of the items received, as provided in Section 4
hereof, has been made by Purchaser.
(b) For the purpose of this Agreement: (i) a "Confirmation" shall be a
confirmation of book-entry transfer of Securities into your account at The
Depository Trust Company (hereinafter referred to as the "Book-Entry Transfer
Facility") to be established and maintained by you in accordance with Section 3
hereof; (ii) a "Notice of Guaranteed Delivery" shall be a notice of guaranteed
delivery substantially in the form attached as Exhibit C hereto or a telegram,
telex, facsimile transmission or letter substantially in such form, or if sent
by a Book-Entry Transfer Facility, a message transmitted through electronic
means in accordance with the usual procedures of such Book-Entry Transfer
Facility and the Depository, substantially in such form; provided, however, that
if such notice is sent by a Book-Entry Transfer Facility through electronic
means, it must state that such Book-Entry Transfer Facility has received an
express acknowledgment from the participant on whose behalf such notice is given
that such participant has received and agrees to become bound by the form of
such notice; (iii) an "Eligible Institution" shall be a member firm of a
national securities exchange registered with the Securities and Exchange
Commission or of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States; and (iv) an "Agent's Message" shall be a message transmitted through
electronic means by a Book-Entry Transfer Facility, in accordance with the
normal procedures of such Book-Entry Transfer Facility and the Depository, to
and received by the Depository and forming part of a Confirmation, which states
that such Book-Entry Transfer Facility has received an express acknowledgment
from the participant in such Book-Entry Transfer Facility tendering the
Securities which are the subject of such Confirmation that such participant has
received and agrees to be bound by the terms of the Letter of Transmittal, and
that the Purchaser may enforce such agreement against such participant. The
term Agent's Message shall also include any hard copy printout evidencing such
message generated by a computer terminal maintained at the Depository's office.
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(c) We acknowledge that in connection with the Offer you may enter into
agreements or arrangements with a Book-Entry Transfer Facility which, among
other things, provide that (i) delivery of an Agent's Message will satisfy the
terms of the Offer with respect to the Letter of Transmittal, (ii) such
agreements or arrangements are enforceable against the Purchaser by such Book-
Entry Transfer Facility or participants therein and (iii) you, as Depository,
are authorized to enter into such agreements or arrangements on behalf of the
Purchaser. Without limiting any other provision of this Agreement, you are
expressly authorized to enter into any such agreements or arrangements on behalf
of the Purchaser and to make any necessary representations or warranties in
connection thereunder, and any such agreement or arrangement shall be
enforceable against the Purchaser.
3) You shall take steps to establish and, subject to such establishments,
maintain an account at the Book-Entry Transfer Facility for book-entry transfers
of Securities, as set forth in the Exchange Exchange Offer, and you shall comply
with the provisions of Rule 17Ad-14 under the Securities Exchange Act of 1934,
as amended.
4) (a) You are authorized and directed to examine any certificate
representing Securities, Notice of Guaranteed Delivery Agent's Message or and
any other document required received by you to determine whether you believe any
tender may be defective. In the event you conclude that any Notice of
Guaranteed Delivery, Agent's Message or other document has been improperly
completed, executed or transmitted, any of the certificates for Securities is
not in proper form for transfer (as required by the aforesaid instructions) or
if some other irregularity in connection with the tender of Securities exists,
you are authorized subject to Section 4(b) hereof to advise the tendering
securityholder, or transmitting Book-Entry Transfer Facility, as the case may
be, of the existence of the irregularity, but you are not authorized to accept
any tender not in accordance with the terms and subject to the conditions set
forth in the Offer, or any other tender which you deem to be defective, unless
you shall have received from the Purchaser the tender was made by means of a
Confirmation containing an Agent's Message, a written notice, duly dated and
signed by an authorized officer of the Purchaser, indicating that any defect or
irregularity in such tender has been cured or waived and that such tender has
been accepted by the Purchaser.
(b) Promptly upon your concluding that any tender is defective, you
shall, after consultation with and on the written instructions of the Purchaser,
use reasonable efforts in accordance with your regular procedures to notify the
person tendering such Securities, or Book-Entry Transfer Facility transmitting
the Agent's Message, as the case may be, of such determination and, when
necessary, return the certificates involved to such person in the manner
described in Section 11 hereof. The Purchaser shall have full discretion to
determine whether any tender is complete and proper and shall have the absolute
right to reject any or all tenders of any particular Securities determined by it
not to be in proper form and to determine whether the acceptance of or payment
for such tenders may, in the opinion of counsel for the Purchaser, be unlawful;
it being specifically agreed that you shall have neither discretion nor
responsibility with
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respect to these determinations. To the extent permitted by applicable law, the
Purchaser also reserves the absolute right to waive any of the conditions of the
Offer or any defect or irregularity in the tender of any particular Securities.
The interpretation by the Purchaser of the terms and conditions of the Exchange
Offer, the Consent and Letter of Transmittal and the instructions thereto, a
Notice of Guaranteed Delivery or Consent and an Agent's Message (including
without limitation the determination of whether any tender is complete and
proper) shall be final and binding.
(c) You agree to maintain accurate records as to all Securities
tendered and received prior to or on the Exchange Offer Expiration Date.
5) You are authorized and directed to return to any person tendering
Securities, in the manner described in Section 11 hereof, any certificates
representing Securities tendered by such person but duly withdrawn pursuant to
the Exchange Offer. To be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be received by you within the time period
specified for withdrawal in the Exchange Offer at your address set forth on the
back page of the Exchange Offer. Any notice of withdrawal must specify the name
of the person having deposited the Securities to be withdrawn, the amount of
Securities to be withdrawn and, if the certificates representing such Securities
have been delivered or otherwise identified to you, the name of the registered
holder(s) of such Securities as set forth in such certificates. If the
certificates have been delivered to you, then prior to the release of such
certificates the tendering securityholder must also submit the serial numbers
shown on the particular certificates evidencing such Securities and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution. You are authorized and directed to examine any notice of
withdrawal to determine whether you believe any such notice may be defective.
In the event you conclude that any such notice is defective you shall, after
consultation with and on the instructions of the Purchaser, use reasonable
efforts in accordance with your regular procedures to notify the person
delivering such notice of such determination. All questions as to the form and
validity (including time of receipt) of notices of withdrawal will be determined
by the Purchaser in its sole discretion, whose determination shall be final and
binding. Any Securities so withdrawn shall no longer be considered to be
properly tendered unless such Securities are re-tendered prior to the Expiration
Date pursuant to the Exchange Offer.
6) Subject to Sections 18 and 25 hereof, any amendment to or extension of
the Offer, as the Purchaser shall from time to time determine, shall be
effective upon notice to you from the Purchaser given prior to the time the
Offer would otherwise have expired, and shall be promptly confirmed by the
Purchaser in writing; provided that you may rely on and shall be authorized and
protected in acting or failing to act upon any such notice even if such notice
is not confirmed in writing or such confirmation conflicts with such notice. If
at any time the Offer shall be terminated as permitted by the terms thereof, the
Purchaser shall promptly notify you of such termination.
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7) At 5:00 P. M. New York City time, or as promptly as practicable
thereafter on each business day, or more frequently if reasonably requested as
to major tally figures, you shall advise each of the parties named below by
facsimile transmission or telephone as to, based upon your preliminary review
(and at all times subject to final determination by Purchaser), as of the close
of business on the preceding business day or the most recent practicable time
prior to such request, as the case may be: (i) the number of Securities duly
tendered on such day; (ii) the number of Securities duly tendered represented by
certificates physically held by you on such day; (iii) the number of Securities
represented by Notices of Guaranteed Delivery on such day; (iv) the number of
Securities withdrawn on such day; and (v) the cumulative totals of Securities in
categories (i) through (iv) above through 3:00 P. M., New York City time, on
such day:
(a) Mr. Irv Gubman, General Counsel, Imperial Credit Industries
Phone: 310-791-8040 Fax: 310-791-8230
(b) Mr. David Parsons, Senior Vice President, Lehman Brothers
Phone: 212-528-7581 Fax: 212-528-6154
You shall also furnish to each of the above-named persons a written report
confirming the above information which has been communicated orally on the day
following such oral communication. You shall furnish to the Dealer-Manager (as
defined in the Exchange Offer), the Information Agent (as defined in the
Exchange Offer) and the Purchaser, such reasonable information, to the extent
such information has been furnished to you, on the tendering securityholders as
may be requested from time to time.
You shall furnish to the Purchaser, upon request, master lists of Securities
tendered for purchase, including an A-to-Z list of the tendering
securityholders.
You are also authorized and directed to provide the persons listed above or any
other persons approved by the Purchaser with such other information relating to
the Securities, Exchange Offer, Agent's Messages, or Notices of Guaranteed
Delivery as the Purchaser may reasonably request from time to time.
8) Notices of Guaranteed Delivery, Agent's Messages, telegrams, telexes,
facsimile transmissions, notices and letters submitted to you pursuant to the
Offer shall be stamped by you to indicate the date and time of the receipt
thereof and these documents, or copies thereof, shall be preserved by you for a
reasonable time not to exceed one year or the term of this Agreement, whichever
is longer, and thereafter shall be delivered by you to the Purchaser.
Thereafter, any inquiries relating to or requests for any of the foregoing shall
be directed solely to the Purchaser and not the Depository.
9) At such time as you shall be notified by the Purchaser, you shall
request the transfer agent for the Securities to effect the transfer of all
Securities purchased
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pursuant to the Offer and to issue certificates for such Securities so
transferred or to cancel them, in accordance with written instructions from the
Purchaser, and upon your receipt thereof notify the Purchaser. The Purchaser
shall be responsible to arrange for delivery, if any, of the certificates.
10. (a) On or before January 31st of the year following the year in which
the Purchaser accepts Securities for payment, you will prepare and mail to each
tendering securityholder whose Securities were accepted, other than
securityholders who demonstrate their status as nonresident aliens in accordance
with United States Treasury Regulations ("Foreign Securityholders"), a Form
1099-B reporting the purchase of Securities as of the date such Securities are
accepted for payment. You will also prepare and file copies of such Forms 1099-
B by magnetic tape with the Internal Revenue Service in accordance with Treasury
Regulations on or before February 28th of the year following the year in which
the Securities are accepted for payment.
11) If, pursuant to the terms and conditions of the Offer, the Purchaser
has notified you that it does not accept certain of the Securities tendered or
purported to be tendered or a securityholder withdraws any tendered Securities,
you shall promptly return the deposited certificates for such Securities,
together with any other documents received, to the person who deposited the
same, without expense to such person. Certificates for such unpurchased
Securities shall be forwarded by you, at your option, by: (i) first class mail
(ii) registered mail or (iii) by overnight courier or delivery. If any such
Securities were tendered or purported to be tendered by means of a Confirmation
containing an Agent's Message, you shall notify the Book-Entry Transfer Facility
of the Purchaser's decision not to accept the Securities.
12) You shall take all reasonable action with respect to the Offer as may
from time to time be requested by the Purchaser, the Dealer-Manager or the
Information Agent. You are authorized to cooperate with and furnish information
to the Dealer-Manager, the Information Agent, any of their representatives or
any other organization (or its representatives) designated from time to time by
the Purchaser, in any manner reasonably requested by any of them in connection
with the Offer and tenders thereunder.
13) Any instructions given to you orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Purchaser, the Dealer-
Manager or the Information Agent, as the case may be, as soon as practicable.
You shall not be liable or responsible and shall be fully authorized and
protected for acting, or failing to act, in accordance with any oral
instructions which do not conform with the written confirmation received in
accordance with this Section.
14) Whether or not any Securities are tendered or the Offer is
consummated, for your services as Depository hereunder we shall pay to you
compensation in accordance with the fee schedule attached as Schedule 1 hereto,
together with reimbursement for out-of-pocket expenses, including reasonable
fees and disbursements of your counsel.
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15) In the event any question or dispute arises with respect to the proper
interpretation of this Agreement or your duties hereunder or the rights of the
Purchaser or of any securityholders surrendering certificates for Securities
pursuant to the Offer, you shall not be required to act and shall not be held
liable or responsible for your refusal to act until the question or dispute has
been judicially settled (and you may, if you in your sole discretion deem it
advisable, but shall not be obligated to, file a suit in interpleader or for a
declaratory judgment for such purpose) by final judgment rendered by a court of
competent jurisdiction, binding on all securityholders and parties interested in
the matter which is no longer subject to review or appeal, or settled by a
written document in form and substance satisfactory to you and executed by the
Purchaser and each such securityholder and party. In addition, you may require
for such purpose, but shall not be obligated to require, the execution of such
written settlement by all the securityholders and all other parties that may
have an interest in the settlement.
16) As Depository hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth herein or in Exhibits A, B, and C hereto, or as may subsequently be agreed
to in writing by you and the Purchaser;
(b) shall have no obligation to make payment for any tendered Securities
unless the Purchaser shall have provided the necessary federal or other
immediately available funds to pay in full amounts due and payable with respect
thereto;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
certificates or the Securities represented thereby deposited with you or
tendered through an Agent's Message hereunder and will not be required to and
will make no representations as to or be responsible for the validity,
sufficiency, value, or genuineness of the Offer;
(d) shall not be obligated to take any legal action hereunder; if,
however, you determine to take any legal action hereunder, and, where the taking
of such action might in your judgment subject or expose you to any expense or
liability, you shall not be required to act unless you shall have been furnished
with an indemnity satisfactory to you;
(e) may rely on and shall be authorized and protected in acting or failing
to act upon any certificate, instrument, opinion, notice, letter, telegram,
telex, facsimile transmission, Agent's Message or other document or security
delivered to you and believed by you to be genuine and to have been signed by
the proper party or parties;
(f) may rely on and shall be authorized and protected in acting upon the
written, telephonic, electronic and oral instructions, with respect to any
matter relating to your actions as Depository covered by this Agreement (or
supplementing or qualifying any such actions) of officers of the Purchaser;
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(g) may consult counsel satisfactory to you, and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by you hereunder in good faith and in
accordance with the advice of such counsel;
(h) shall not be called upon at any time to advise any person tendering or
considering tendering pursuant to the Offer as to the wisdom of making such
tender or as to the market value of any security tendered thereunder;
(i) may perform any of your duties hereunder either directly or by or
through agents or attorneys and you shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with reasonable
care by you hereunder;
(j) shall not be liable or responsible for any recital or statement
contained in the Offer or any other documents relating thereto;
(k) shall not be liable or responsible for any failure of the Purchaser to
comply with any of their respective obligations relating to the Offer, including
without limitation obligations under applicable securities laws;
(l) are not authorized, and shall have no obligation, to pay any brokers,
dealers, or soliciting fees to any person, including without limitation the
Dealer-Manager or Information Agent; and
(m) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from a Book-Entry
Transfer Facility, or for the actions of any other person in connection with any
such message or communication.
17) The Purchaser covenants to indemnify and hold you and your officers,
directors, employees, agents, contractors, subsidiaries and affiliates harmless
from and against any loss, liability, damage or expense (including without
limitation any loss, liability, damage or expense incurred for submitting for
transfer Securities tendered without a signature guarantee pursuant to the
Letter of Transmittal, or in connection with any communication or message
transmitted or purported to be transmitted through electronic means to or from a
Book-Entry Transfer Facility, and the fees and expenses of counsel) incurred (a)
without gross negligence or bad faith or (b) as a result of your acting upon the
instructions of the Purchaser, Dealer-Manager or Information Agent, arising out
of or in connection with the Offer, this Agreement or the administration of your
duties hereunder, including without limitation the costs and expenses of
defending and appealing against any action, proceeding, suit or claim in the
premises. In no case shall the Purchaser be liable under this indemnity with
respect to any action, proceeding, suit or claim against you unless the
Purchaser shall be notified by you, by letter or by telex or facsimile
transmission confirmed by letter, of the written assertion of any action,
proceeding, suit or claim made or commenced against you, promptly after
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you shall have been served with the summons or other first legal process or have
received the first written insertion giving information as to the nature and
basis of the action, proceeding, suit or claim, but failure so to notify the
Purchaser shall not release the Purchaser of any liability which it may
otherwise have on account of this Agreement. The Purchaser shall be entitled to
participate at its own expense in the defense of any such action, proceeding,
suit or claim. Anything in this agreement to the contrary notwithstanding, in no
event shall you be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if you
have been advised of the likelihood of such loss or damage and regardless of the
form of action.
18) Unless terminated earlier by the parties hereto, this Agreement shall
terminate upon (a) Purchaser's termination or withdrawal of the Offer, (b) if
Purchaser does not terminate or withdraw the Offer, the date which is three (3)
months after the later of (i) your sending of checks to tendering
securityholders in accordance with Section 9(a) hereof and (ii) your delivery of
certificates to the Purchaser in accordance with Section 9(b) hereof or (c) if
not terminated or withdrawn earlier, the date which is twelve (12) months after
the date of this Agreement. Upon any termination of this Agreement, you shall
promptly deliver to the Purchaser any certificates, funds or property then held
by you as Depository under this Agreement, and after such time any party
entitled to such certificates, funds or property shall look solely to the
Purchaser and not the Depository therefor, and all liability of the Depository
with respect thereto shall cease, provided, however, that the Depository, before
being required to make such delivery to the Purchaser, may at the expense of the
Purchaser cause to be published in a newspaper of general circulation in the
City of New York, or mail to each person who has tendered Securities but not
received payment, or both, notice that such certificates, funds or property
remain unclaimed and that after a date specified therein, which shall not be
less than 30 days from the date of publication or mailing, any unclaimed balance
of such certificates, funds or property will be delivered to the Purchaser.
Sections 14, 16 and 17 hereof shall survive any termination of this Agreement.
19) In the event that any claim of inconsistency between this Agreement
and the terms of the Offer arise, as they may from time to time be amended, the
terms of the Offer shall control, except with respect to the duties, liabilities
and rights, including without limitation compensation and indemnification, of
you as Depository, which shall be controlled by the terms of this Agreement.
20) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
21) Purchaser represents and warrants that (a) it is duly incorporated,
validly existing and in good standing under the laws of the State of California,
(b) the making and consummation of the Offer and the execution, delivery and
performance of all transactions contemplated thereby (including without
limitation this Agreement) have
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been duly authorized by all necessary corporate action and will not result in a
breach of or constitute a default under the certificate of incorporation or
bylaws of the Purchaser or any indenture, agreement or instrument to which it is
a party or is bound, (c) this Agreement has been duly executed and delivered by
the Purchaser and constitutes the legal, valid, binding and enforceable
obligation of the Purchaser, (d) the Offer will comply in all material respects
with all applicable requirements of law and (e) to the best of its knowledge,
there is no litigation pending or threatened as of the date hereof in connection
with the Offer.
22) Set forth in Schedule 2 hereto is a list of the names and specimen
signatures of the persons authorized to act for the Purchaser under this
Agreement. The Secretary of the Purchaser shall, from time to time, certify to
you the names and signatures of any other persons authorized to act for the
Purchaser under this Agreement.
23) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communication under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Purchaser, to its address set forth beneath their signatures to this Agreement,
or, if to the Depository, to Chase Trust Company of California, Suite #2725, 101
California Street, San Francisco, CA 94111, Attention: Corporate Trust, or to
such other address as a party hereto shall notify the other parties.
24) This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to conflict of laws
rules or principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other
parties.
25) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
Please acknowledge receipt of this Letter, the Exchange Offer, the Consent and
Letter of Transmittal, and the Notice of Guaranteed Delivery, and confirm the
arrangements herein provided by signing and returning the enclosed copy hereof,
whereupon this Agreement and your acceptance of the terms and conditions herein
provided shall constitute a binding Agreement among us.
Very truly yours,
Imperial Credit Capital Trust I, Purchaser
By:_______________________________
Name: Mr. Irv Gubman
Title: Regular Trustee
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Address for notices:
--------------------
Imperial Credit Industries, Inc.
23550 Hawthorne Boulevard
Building 1, Suite #210
Torrance, CA 90505
Accepted as of the date
above first written:
CHEMICAL TRUST COMPANY OF CALIFORNIA
as DEPOSITORY
By: _______________________________
Name: Hans Helley
Title: Assistant Vice President
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CHEMICAL TRUST COMPANY OF CALIFORNIA
Exhibit A Exchange Offer
Exhibit B Notice of Guaranteed Delivery
Schedule 1 Schedule of Fees as Depository
Schedule 2 Specimen Signatures of the Purchaser
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SCHEDULE 1
Schedule of Fees
as
Depository
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SCHEDULE 2
(Company's Letterhead)
Name Position Specimen Signatures
- ---- -------- -------------------
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