EXHIBIT 20.1.9
AMENDMENT NO. 1 TO AMENDED
AND RESTATED COLLATERAL AGENCY AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED COLLATERAL AGENCY AND
SECURITY AGREEMENT (this "Amendment No. 1"), dated as of February 19, 2002, is
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made by and between Imperial Credit Industries, Inc. (the "Grantor") in favor of
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and for the benefit of Wilmington Trust Company ("WTC"), acting hereunder not
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individually but solely as collateral agent (in such capacity, the "Collateral
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Agent") for the benefit of (i) the Senior Secured Debt Purchasers, (ii) Chase
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Manhattan Bank and Trust Company, N.A. ("Senior Debt Trustee"), not individually
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but solely as trustee for the holders of the Exchange Notes and (iii) Chase
Manhattan Bank and Trust Company, N.A. ("Subordinated Debt Trustee"), not
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individually but solely as trustee for the 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" and collectively referred
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to herein as the "Secured Parties"), with respect to the following facts:
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RECITALS:
A. Pursuant to that certain Master Recapitalization Agreement dated as
of March 29, 2001 (as amended, the "Recapitalization Agreement"), the Grantor
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sold to the Senior Secured Debt Purchasers $16,200,000 in aggregate principal
amount of 12% Senior Secured Notes originally due April 30, 2002 (the "Series A
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Senior Secured Debt") and pursuant to that certain Amended and Restated
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Collateral Agency and Security Agreement, dated as of June 28, 2001, by and
between the Grantor and the Collateral Agent (the "Existing Security
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Agreement"), the Grantor has granted to the Collateral Agent for the benefit of
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the Secured Parties certain rights and interests in the collateral referred to
therein.
B. Concurrently herewith, the Grantor is entering into a Standstill,
Forbearance and Amendment Agreement, dated as of February 19, 2002 (the
"Standstill Agreement"), with each of the Senior Secured Debt Purchasers and a
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Restructuring Agreement, dated as of February 19, 2002 (the "Restructuring
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Agreement"), with the Stephen Adams Living Trust (the "Adams Trust"), as sole
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holder of the Convertible Subordinated Debt, and Southern Pacific Bank. The
Standstill Agreement and the Restructuring Agreement will, among other things,
resolve certain disputes between the Grantor and certain of the Senior Secured
Debt Purchasers and the holder of the Convertible Subordinated Debt regarding
the Grantor's debt to such parties and require, among other things, that an
additional series of the Series A Senior Secured Debt be issued to the Adams
Trust in aggregate principal amount of $6,382,877 (the "Series B Senior Secured
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Debt") in exchange for $6,000,000 in an aggregate principal amount of the
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Convertible Subordinated Debt and additional principal amounts of Convertible
Subordinated Debt issuable in payment of 50% of the interest payable on January
30, 2002 in respect of the Convertible Subordinated Debt. It is also a condition
precedent to the effectiveness of the Standstill Agreement that the Existing
Security Agreement be amended to provide that the issuance of the Series B
Secured Debt is included in the obligations secured thereby.
C. The Grantor desires to amend certain provisions of the Existing
Security Agreement and the Collateral Agent is willing to do so.
NOW, THEREFORE, in consideration of the foregoing recitals, the
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Grantor and the
Collateral Agent mutually agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. Unless otherwise defined or the
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context otherwise requires, terms used herein (including in the preamble and
recitals hereto) have the meanings given to such terms in the Existing Security
Agreement or the Recapitalization Agreement, as applicable. The term "Amended
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Security Agreement" when used in this Amendment No. 1 shall mean the Existing
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Security Agreement as amended by this Amendment No. 1.
ARTICLE II
AMENDMENTS TO EXISTING SECURITY AGREEMENT
Section 2.1 Defined Terms. For all purposes of the Existing Security
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Agreement, the following defined terms are replaced or added, as applicable, as
follows.
(a) Replaced Definition. The definition of the terms "Senior
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Secured Debt" and "Senior Secured Debt Purchasers" are deleted and the following
definitions are inserted in their respective places:
"Senior Secured Debt" means the $16,200,000 in aggregate
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principal amount of Series A Senior Secured Debt and the $6,382,877 in aggregate
principal amount of Series B Senior Secured Debt issued pursuant to the
Restructuring Agreement.
"Senior Secured Debt Purchasers" means (i) those Persons
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identified as such in Exhibit A to the Recapitalization Agreement, as the
purchasers of the Series A Senior Secured Debt, and (ii) the Stephen Adams
Living Trust, as the purchaser of the Series B Senior Secured Debt."
(b) New Defined Terms. There shall be added to the Existing
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Security Agreement, and as used in the definition of Senior Secured Debt
therein, the following new definitions:
"Amendment No. 1" means Amendment No. 1 to Amended and
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Restated Collateral Agency and Security Agreement, dated as of February 19,
2002, being entered into concurrently herewith by and between Imperial Credit
Industries, Inc. in favor of and for the benefit of Wilmington Trust Company, as
collateral agent.
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"Restructuring Agreement" has the meaning set forth in Recital
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B of Amendment No. 1.
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"Series A Senior Secured Debt" has the meaning set forth in
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Recital A of Amendment No. 1.
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"Series B Senior Secured Debt" has the meaning set forth in
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Recital B of Amendment No. 1.
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"Standstill Agreement" has the meaning set forth in Recital B
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of Amendment No. 1.
Section 2.2 Amendments to Section 10(h). Section 10(h) of the Existing
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Security Agreement is amended by deleting the existing text of such subsection
in its entirety and inserting in its place the following:
"(h) Distribution of Proceeds. All amounts owing with respect
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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 or
the Standstill Agreement, 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 Series A 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 Series A Senior Secured Debt according to the aggregate amounts of such
principal then owing to each Senior Secured Debt Purchaser, (iv) fourth, ratably
to the payment of all amounts of interest outstanding on the Series B Senior
Secured Debt according to the aggregate amounts of such interest then owing to
each Senior Secured Debt Purchaser then owning Series B Senior Secured Debt, (v)
fifth, ratably to all amounts of principal outstanding under the Series B Senior
Secured Debt according to the aggregate amounts of such principal then owing to
each Senior Secured Debt Purchaser then owning Series B Senior Secured Debt,
(vi) sixth, ratably to all other amounts then due to the Senior Secured Debt
Purchasers, including fees and expenses, (vii) seventh, 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, (viii) eighth, 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, (ix) ninth, ratably to all
amounts of principal outstanding under the Exchange Notes according to the
aggregate amounts of principal then owing to each holder thereof, (x) tenth,
ratably to all other amounts then due to the holders of the Exchange Notes,
including fees and expenses, (xi) eleventh, 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, (xii) twelfth, 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, (xiii)
thirteenth, ratably to all other amounts then due
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to the Convertible Subordinated Debt Purchasers, including fees and expenses and
(xiv) fourteenth, 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
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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 (xiii) 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."
Section 2.3 Other Amendments. In order to reflect the impact of
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execution of the Standstill Agreement by all of the Senior Secured Debt
Purchasers in binding the Senior Secured Debt Purchasers to the applicable
provisions of the Amended Security Agreement, each reference in the Existing
Security Agreement to "by acceptance of the Senior Secured Debt" shall be deemed
to be changed to "by acceptance of the Senior Secured Debt and execution of the
Standstill Agreement".
ARTICLE III
MISCELLANEOUS
Section 3.1 Continuing Force and Effect. Except as amended hereby, the
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Existing Security Agreement shall remain unmodified and in full force and
effect. The parties hereby ratify and confirm the Existing Security Agreement,
as amended concurrently herewith.
Section 3.2 Counterparts. This Amendment No. 1 may be executed in any
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number of counterparts. Each counterpart shall be deemed an original and all
counterparts shall be deemed the same instrument with the same effect as if all
parties hereto had signed the same signature page. Any signature page of this
Amendment No. 1 may be detached from any identical counterpart of this Amendment
No. 1 having attached to it one or more additional signature pages.
Section 3.3 Titles and Headings. The titles and headings of the
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Sections of this Amendment No. 1 are intended for convenience only and shall not
in any way affect the meaning or construction of any provision of this Amendment
No. 1.
Section 3.4 Changes and Modifications In Writing. No provision of this
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Amendment No. 1 may be changed or modified except by an instrument in writing
signed by the party against whom enforcement of the change or modification is
sought.
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IN WITNESS WHEREOF, the duly authorized representatives of the Grantor
and the Collateral have executed this Amendment No. 1 as of the date first above
written.
IMPERIAL CREDIT INDUSTRIES, INC.
By:________________________________________
Name: Richard S. Cupp
Title: Chief Executive Officer
Address: 23550 Hawthorne Boulevard
Building 1, Suite 110
Torrance, California 90505
Facsimile: (310) 791-373-9955
WILMINGTON TRUST COMPANY, in its capacity
as Collateral Agent on behalf of the
Secured Parties
By:________________________________________
Name: Daniel M. Reser
Title: Authorized Signer
Address: Rodney Square North
1100 N. Market Street
Wilmington, DE 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 636-4143