EXHIBIT 10.24
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
SOUTHERN PACIFIC FUNDING CORPORATION
AND
IMPERIAL CREDIT INDUSTRIES, INC.
DATED AS OF
OCTOBER 17, 1996
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of October 17, 1996, by and between SOUTHERN PACIFIC FUNDING CORPORATION
(the "Company") and IMPERIAL CREDIT INDUSTRIES, INC. ("Imperial").
1. Consideration. Imperial and the Company have agreed to enter into this
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Agreement to provide the registration rights set forth herein and to otherwise
perform their respective obligations hereunder in consideration of the mutual
covenants contained herein.
2. Definitions. The following definitions shall apply in addition to those
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terms defined elsewhere herein:
a. "Common Stock" means the Company's Common Stock, no par value per
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share.
b. "Continuous Offering" means an Offering pursuant to Rule 415 under the
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Securities Act, 17 C.F.R. 230.415, or any successor rule of the SEC, if
applicable.
c. "Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder.
d. "Offering" means any public offering of the Common Stock of the
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Company, whether or not subject to the registration requirements of the
Securities Act, and any other method of disposition of the Common Stock of the
Company that is subject to the registration requirements of the Securities Act
or any other applicable federal or state statute or regulation.
e. "Offering Documents" means all documents relating to an Offering which
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are required to be filed with any governmental agency or authority or to be
delivered to any Person to whom securities of the Company are offered for sale
or sold, including, without limitation, Registration Statements, Prospectuses,
and preliminary Prospectuses, and all material incorporated by reference
therein, and any schedule or exhibit to any of the foregoing, in each case as
such documents may be amended from time to time.
f. "Party" means Imperial or the Company and "Parties" means both Imperial
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and the Company.
g. "Person" means any individual, corporation, partnership, limited
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liability company, association, trust or unincorporated association.
h. "Prospectus" means the prospectus included in a Registration Statement,
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relating to an Offering in which Common Stock is included, as amended or
supplemented by a prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
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i. "Registration Expenses" means, with respect to an Offering, any and all
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expenses incident to the Company's performance of or compliance with the
provisions of this Agreement, including without limitation (a) fees for any
filings required to be made with the National Association of Securities Dealers,
Inc., or the SEC in connection with such Offering, and any other registration
and filing fees, (b) all fees and expenses of complying with securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Common Stock to be included in such
Offering), (c) all printing, messenger, telephone, and delivery expenses, (d)
all fees and expenses incurred in connection with the listing of the Common
Stock to be included in such Offering on any securities exchange, (e) the
reasonable fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, and (f) the reasonable fees and disbursements of Imperial's outside
counsel, outside accountants, investment bankers, and financial consultants, if
any, in connection with any Offering.
j. "Registration Statement" means a registration statement filed with the
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SEC pursuant to the Securities Act, relating to an Offering in which Common
Stock is included, including any pre- or post-effective amendment thereto, the
Prospectus included therein, and all material incorporated by reference therein,
and any schedule or exhibit to any of the foregoing.
k. "SEC" means the Securities and Exchange Commission.
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l. "Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder.
m. "Securities Offering Regulations" means any regulations promulgated by
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any agency or authority of the United States government, under the Securities
Act, or any statute hereafter enacted into law, relating to or governing an
Offering of securities by the Company.
n. "Imperial Shares" means the shares of Common Stock, and any other
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securities into which the Common Stock may be changed by virtue of any merger,
consolidation or recapitalization or otherwise, owned of record by Imperial as
of the date hereof.
3. a. Incidental Registration Rights. If the Company proposes to make an
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Offering of its Common Stock and to prepare Offering Documents not required
pursuant to Paragraph 4 (other than any registration by the Company on Form S-8
or a successor or substantially similar form of (A) an employee stock option,
stock purchase or compensation plan or securities issued or to be issued
pursuant to any such plan, or (B) a dividend investment plan), the Company will
give prompt written notice to Imperial of its intention to do so and of
Imperial's rights under this Paragraph 3. Upon the written request of Imperial
made within thirty (30) days after the receipt of any such notice (which request
shall specify the number of Imperial Shares intended to be disposed of by
Imperial), the Company will include in the Offering Documents relating to such
Offering all Imperial Shares that the Company has been requested to include by
Imperial; provided, that if at any time after giving written notice under this
Paragraph 3 the Company
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shall determine for any reason not to proceed with the proposed Offering, the
Company may, at its election, give written notice of such determination to
Imperial and thereupon shall be relieved of its obligations to Imperial with
respect to such proposed Offering under this Paragraph 3. Imperial shall be
entitled to withdraw its request for the inclusion of Imperial Shares in an
Offering and withdraw from the Offering at any time before the time that the
Offering Documents, including any Registration Statement (if applicable), are
declared effective and the Offering has commenced.
b. Continuous Offering. If the Company intends to effect a Continuous
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Offering, the Company will give written notice thereof to Imperial and include
in such Offering all of the Imperial Shares which Imperial elects to include in
such Offering. During the period in which a Registration Statement (if
applicable) with respect to a Continuous Offering is effective, if Imperial
desires to sell Imperial Shares in a transaction covered by such Registration
Statement, it shall give notice to the Company of the proposed date of such sale
at least thirty (30) days before such proposed date of sale, and the Company
shall take all actions necessary to permit such sale. Within fifteen (15) days
of receipt of notice of a proposed sale by Imperial, the Company will advise
Imperial either that it has no objection of such sale or that such sale should
be delayed for up to four months, on the basis either that the Company is
involved in a confidential proposed transaction or negotiations therefor (which
have been previously disclosed to the Company's Board of Directors) which would
not require the Company to make or amend any public filings under the securities
laws at that time, or that such sale would have a material adverse effect upon
the Company's ability to access the capital markets. If the Company has not
objected to such proposed sale as permitted in this subparagraph (b) within such
fifteen (15) day period, the Company shall take all actions necessary to permit
such sale on the proposed date of sale pursuant to such Registration Statement.
c. Underwritten Offerings. In the case of an underwritten Offering
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initiated by the Company under this Paragraph 3, including underwritten
Offerings effected as part of a Continuous Offering, the underwriter(s) and the
managing underwriter shall be selected by the Company. If the managing
underwriter advises the Company in writing that, in its opinion, the number of
Imperial Shares and securities of the Company, if any, being sold exceeds the
number that can be sold in such Offering, so as to be likely to have an adverse
effect on the price at which the Company can sell securities for its own
account, then there shall be included in such Offering (and in the Offering
Documents relating to the Offering) first, securities of the Company being sold
for its own account, and second, the maximum number of Imperial Shares requested
to be included in such Offering which, in the opinion of such managing
underwriter, can be sold without having such adverse effect on such price. If
Imperial Shares are so excluded from registration in an Offering, the Company
shall, upon the request of Imperial, use its reasonable efforts to effect a
registration with the SEC or take such actions as shall be reasonably required
to effect an Offering (in the event the Imperial Shares are already registered
with the SEC) in respect of such excluded Imperial Shares as soon as practicable
after consummation of such Offering. Imperial may withdraw its Imperial Shares
from such subsequent Offering without cost or penalty at any time before the
effective date of the Registration Statement relating to such Offering.
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d. Expenses. In connection with any offering of Imperial Shares and a new
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issuance of Common Stock by the Company, Imperial and the Company shall each pay
their pro rata share of Registration Expenses in proportion to the number of
shares of Common Stock to be offered by each.
4. Demand Registration Rights. On or after April 1, 1997, Imperial, without
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limitation as to any other method of disposition available to it, shall be
entitled to dispose of any or all of the Imperial Shares then held by it in
accordance with the provisions of this Paragraph 4.
a. Requests by Imperial. Upon the receipt by the Company of written notice
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from Imperial of its intent to sell all or part of its Imperial Shares in an
Offering subject to this Paragraph 4 at least 30 days before such proposed date
of sale, and specifying both the number of Imperial Shares to be sold and the
intended method of disposition, the Company will use its best efforts to
register such Imperial Shares so as to permit as soon as practicable the
requested sale of Imperial Shares. Within fifteen (15) days of receipt of
notice of a proposed sale by Imperial, the Company will advise Imperial either
that it has no objection of such sale or that such sale should be delayed for up
to four months, on the basis either that the Company is involved in a
confidential proposed transaction or negotiations therefor (which have been
previously disclosed to the Company's Board of Directors) which would not
require the Company to make or amend any public filings under the securities
laws at that time, or that such sale would have a material adverse effect upon
the Company's ability to access the capital markets. If the Company has not
objected to such proposed sale as permitted in this subparagraph (a) within such
fifteen (15) day period, the Company shall take all actions necessary to permit
such sale on the proposed date of sale pursuant to such Registration Statement.
If, at any time after giving 30 days written notice under this Paragraph 4,
Imperial shall notify the Company in writing that it has determined for any
reason not to proceed with the proposed Offering, then the Company shall
terminate such Offering.
b. Limitation on Requests and Payment of Registration Expenses. Imperial
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shall be entitled to make a request to the Company to register Imperial Shares
pursuant to the provisions of Paragraph 3(b) or this Paragraph 4 two times
within each one year period commencing April 1, 1997. The Company shall not be
required to register Imperial Shares in accordance with the provisions of
Paragraph 4(a) if there is outstanding at the time of the request an effective
Registration Statement for a Continuous Offering and Imperial can dispose of
Imperial Shares in accordance with Paragraph 3(b). Imperial will pay all
Registration Expenses in connection with an Offering of Imperial Shares
requested by Imperial pursuant to the second sentence of Paragraph 3(b) or this
Paragraph 4. Any Offering abandoned or terminated by Imperial after its filing
in accordance with the provisions of Paragraph 4(a) shall be deemed to be a
request pursuant to this Paragraph 4.
c. Selection of Underwriters. If Imperial specifies in the notice
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delivered to the Company pursuant to the second sentence of Paragraph 3(b) or
Paragraph 4 that it intends to sell Imperial Shares in an underwritten Offering
pursuant to the second sentence of Paragraph 3(b) or Paragraph 4, Imperial shall
be entitled to select the underwriter(s) and managing underwriter.
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If the Company issues and sells securities of the same class as the Imperial
Shares contemporaneously with any Offering pursuant to Paragraph 3(b) or this
Paragraph 4, the Company shall (i) sell such securities to the underwriter(s)
selected by Imperial pursuant to this Paragraph 4(c) on the same terms and
conditions as apply to Imperial and (ii) execute and deliver a copy of the
underwriting agreement relating to such Offering. If the managing underwriter
advises Imperial and the Company in writing that, in its opinion, the number of
securities requested to be included in such Offering exceeds the number that can
be sold in such Offering, so as to be likely to have an adverse effect on the
price at which the Imperial Shares or securities being offered by the Company
can be sold, then there shall be included in such Offering (and in the Offering
Documents relating to such Offering) first, the maximum number of Imperial
Shares requested to be included in such Offering by Imperial and second, the
maximum number of securities, if any, proposed to be sold by the Company for its
own account or for the account of any other holder of the Company's securities,
which in the opinion of the managing underwriter can be sold without having such
adverse effect.
d. Registration on Form S-3. The Company shall not be required to register
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Imperial Shares in any Continuous Offering under this Paragraph 4 until July 1,
1997. Thereafter, Imperial shall have the right to require the Company to
register any or all of its shares on Form S-3 (or on Form S-1, if Form S-3 is
not available).
5. The Company's Duties. If and whenever the Company is required to permit
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Imperial to effect any Offering as provided in Paragraphs 3 and 4, the Company
covenants and agrees that it will, as expeditiously as possible (but not later
than sixty (60) days after receipt of a request from Imperial to include
Imperial Shares in a given Offering):
a. (A) prepare all Offering Documents in accordance with all applicable
requirements of the Securities Act, and the Securities Offering Regulations,
including, if requested by Imperial and if permitted by the rules and
regulations of the SEC, a Registration Statement pursuant to Rule 415 of the
Securities Act or any successor rule of the SEC, with respect to such Offering
to permit the disposition of the Imperial Shares by Imperial in accordance with
the intended method of disposition (and, in the case of an underwritten
Offering, consistent in form, substance, and scope with customary practice for
the offering of securities of corporations by nationally recognized investment
banking firms), (B) file with the SEC such Offering Documents and all other
documents required to permit the disposition of the Imperial Shares by Imperial
in accordance with the intended method of disposition thereof; provided, that
before filing any such Offering Documents (including any documents incorporated
by reference therein), the Company will furnish to counsel(s) designated by
Imperial and to the underwriter(s), if any, copies of all such Offering
Documents, which Offering Documents shall be subject to the review of such
counsel(s) and the underwriter(s), if any, and, where feasible, the Company
shall make such changes in such Offering Documents as are reasonably requested
by such counsel(s) or underwriter(s), and (C) use its reasonable efforts to have
such Offering Documents declared effective by, and obtain all approvals from the
SEC to the extent necessary to permit the Offering; provided, however, that the
Company may discontinue any Offering that is being effected pursuant to
Paragraph 3 at any time before the effective date of the related Offering
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Documents; and provided, further, that the Company shall not file any Offering
Document which shall be disapproved by Imperial within a reasonable period after
the same has been provided for review;
b. thereafter, prepare and file with the SEC such amendments and post-
effective amendments to the Offering Documents as may be necessary to keep the
Offering Documents continuously effective and cause the Offering Documents to be
supplemented by any required supplement, and as so supplemented to be filed, if
required, with the SEC during the period ending on the later of (i) such time as
all of the Imperial Shares covered by such Offering Documents have been disposed
of in accordance with the intended method of disposition set forth in such
Offering Documents or, in the case of an Offering made pursuant to Rule 415
under the Securities Act or any successor rule of the SEC (if applicable), if
securities remain unsold at the expiration of the Offering, such time as the
Company shall file, with the consent of Imperial, a posteffective amendment with
the SEC deregistering the securities which remain unsold at the termination of
the Offering or (ii) so long as a dealer is required to deliver a Prospectus in
connection with the Offering; provided, that before filing any such post-
effective amendment, the Company will furnish to counsel(s) designated by
Imperial and to the underwriter(s), if any, copies of the post-effective
amendment (including any other document proposed to be filed therewith), which
Offering Documents shall be subject to the review of such counsel(s) and the
underwriter(s), if any, and, where feasible, the Company shall make such changes
in such post-effective amendment as are reasonably requested by such counsel(s)
or underwriter(s);
c. furnish to Imperial and to the underwriter(s), if any, such number of
copies of the Offering Documents (including each amendment and supplement
thereto) as they may reasonably request in order to facilitate the disposition
of the Imperial Shares included in such Offering;
d. register or qualify, or cooperate with Imperial, the underwriter(s), if
any, and their respective counsel in registering or qualifying, all Imperial
Shares covered by the Offering Documents for offer and sale under the applicable
securities or blue sky laws of such jurisdictions as Imperial and the
underwriter(s), if any, shall reasonably request in writing, and do any and all
other acts and things which may be reasonably necessary or advisable to enable
Imperial and the underwriter(s), if any, to consummate the disposition in such
jurisdictions of the Common Stock covered by the Offering Documents; provided
however that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any tax
in any such jurisdiction where it is not then so subject;
e. use its reasonable efforts to cause such Common Stock covered by the
Offering Documents to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable Imperial and the
underwriter(s), if any, to consummate the disposition of such Common Stock;
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f. cooperate reasonably with any managing underwriter to effect the sale
of any Imperial Shares, including but not limited to attendance of the Company's
executive officers at any planned "road show" presentations;
g. notify Imperial and the underwriter(s), if any, at any time when the
Offering Documents include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and at the request of Imperial or any underwriter, prepare and furnish to such
Person(s), such reasonable number of copies of any amendment or supplement to
the Offering Documents as may be necessary so that, as thereafter delivered to
the purchasers of such Common Stock, such Offering Documents shall not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and to deliver to
purchasers of any other securities of the Company included in the Offering
copies of such Offering Documents as so amended or supplemented;
h. keep Imperial informed of the Company's best estimate of the earliest
date on which the Offering Documents will become effective, and promptly notify
Imperial of (A) the effectiveness of such Offering Documents, (B) a request by
the SEC for an amendment or supplement to such Offering Documents, (C) the
issuance by the SEC of an order suspending the effectiveness of the Offering
Documents, or of the threat of an proceeding for that purpose, and (D) the
suspension of the qualification of any securities included in the Offering
Documents for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose;
i. comply with the provisions of the Securities Offering Regulations and
the Securities Act with respect to the disposition of all securities covered by
the Offering Documents in accordance with the intended method of distribution of
the sellers thereof set forth in such Offering Documents;
j. use its reasonable efforts to list the securities proposed to be sold
in such Offering on the New York Stock Exchange, or on such other securities
exchange on which the Common Stock is then listed, not later than the closing of
the Offering contemplated thereby;
k. enter into such customary agreements (including but not limited to an
underwriting agreement in customary form) and take such other reasonable actions
as Imperial or the underwriter(s), if any, reasonably request in order to
expedite or facilitate the disposition of such Common Stock;
l. obtain such "cold comfort" letter(s) from the Company's independent
public accountants, in customary form and covering matters of the type
customarily covered by "cold comfort" letter(s), as Imperial or the
underwriter(s), if any, shall reasonably request; and
m. upon prior notice, make available for reasonable inspection by any
underwriter(s) participating in any disposition to be effected pursuant to the
Offering Documents and by any
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attorney, accountant, or other agent retained by any such Person(s), its
financial and other records, pertinent corporate documents and properties of the
Company, and such opportunities to discuss the business of the Company with its
officers, directors, and employees and the independent public accountants who
have certified its financial statements as shall be necessary, in the opinions
of such underwriters' respective counsels, to conduct a reasonable
investigation; provided, that any records, information, or documents that are
designated by the Company in writing as confidential shall be kept confidential
by each such Person, unless disclosure of such records, information, or
documents is required by law, by judicial or administrative order, or in order
to defend a claim asserted against such Person in connection with such Offering.
6. Information from Imperial.
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a. Information. The Company may require Imperial to furnish it with such
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information regarding Imperial and regarding the method of distribution as is
pertinent to the disclosure requirements relating to the Offering of such Common
Stock as the Company may from time to time reasonably request in writing.
b. Use of Offering Documents Upon Notice of Defects. Imperial agrees, and
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shall cause underwriter(s), if any, acting on its behalf to agree, that upon
receipt of any notice from the Company of the happening of any event of the kind
described in Paragraph 5(f), it will immediately discontinue the use of the
Offering Documents covering such Common Stock until the receipt by Imperial and
any such underwriter(s) of the copies of the supplemented or amended Offering
Documents contemplated by such clause and, if so directed by the Company,
Imperial will deliver and cause each underwriter, if any, to deliver to the
Company all copies, other than permanent file copies then in the possession of
Imperial or any such underwriter, of the Offering Documents covering such Common
Stock at the time of receipt of such notice. If the Company shall give any such
notice, the period mentioned in Paragraph 5(b) shall be extended by the number
of days during which offerings were suspended (i.e., the period from and
including the date of the receipt of such notice pursuant to Paragraph 5(f), to
and including the date when Imperial shall have received the copies of the
supplemented or amended Offering Documents contemplated by such clause).
7. Resales: Reports Under Exchange Act. In order to permit Imperial to sell the
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Imperial Shares, if it so desires, pursuant to any applicable resale exemption
under the Securities Offering Regulations or the Securities Act, the Company
will:
a. comply with all rules and regulations of the SEC in connection with use
of any such resale exemption;
b. make and keep available adequate and current public information
regarding the Company;
c. file with the SEC in a timely manner, all reports and other documents
required to be filed under the Securities Act, the Exchange Act, or the
Securities Offering Regulations;
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d. furnish to Imperial copies of annual reports required to be filed under
the Exchange Act and the Securities Offering Regulations; and
e. furnish to Imperial, upon request, (A) a copy of the most recent
quarterly report of the Company and such other reports and documents filed by
the Company with the SEC and (B) such other information as may be reasonably
requested to permit Imperial pursuant to any applicable resale exemption under
the Securities Act or the Securities Offering Regulations, if any.
8. Indemnification. The obligations of indemnification of the Parties set forth
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in this Paragraph 8 shall be in addition to any liability which any Party may
otherwise have to any other Party.
a. Indemnification by the Company. The Company agrees to indemnify and
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hold harmless, to the full extent permitted by law, Imperial, its officers,
directors, employees and agents, each Person who participates as an underwriter
in an Offering, each officer, director, employee, or agent of such an
underwriter, and each Person who controls (within the meaning of the Securities
Act) Imperial and such an underwriter against any and all losses, claims,
damages, liabilities, and expenses, joint or several, including without
limitation reasonable legal or other expenses incurred in connection with
investigating or defending against any loss, claim, damage, or liability, or
action or proceeding (whether commenced or threatened) in respect thereof,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any of the Offering Documents relating to such Offering or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, except insofar as the
same are (i) made in reliance on and in conformity with any information about
Imperial or any underwriter furnished in writing to the Company by Imperial or
any underwriter specifically for inclusion in the Offering Documents relating to
such Offering or (ii) the result of the fact that Imperial or any underwriter
sold Common Stock subject to an Offering to a Person to whom there was not sent
or given, at or before the written configuration of such sale, a copy of the
final Offering Documents, if the Company has previously furnished copies thereof
to Imperial or underwriter and such final Offering Documents corrected such
untrue statement or alleged untrue statement or omission or alleged omission.
b. Indemnification by Imperial. Imperial agrees to indemnify and hold
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harmless, to the full extent permitted by law, the Company, its officers,
directors, employees, and agents, each Person who participates as an underwriter
in an Offering, each officer, director, employee or agent of such an
underwriter, and each Person who controls (within the meaning of the Securities
Act) the Company and such underwriter against any and all losses, claims,
damages, liabilities, and expenses, joint or several, including without
limitation reasonable legal or other expenses incurred in connection with
investigating or defending against any loss, claim, damage, or liability, or
action or proceeding (whether commenced or threatened) in respect thereof,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any of the Offering Documents relating to such Offering or any
omission or alleged omission to state
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therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, but only to the extent that such untrue statement or omission is made
in reliance on and in conformity with any information furnished in writing by
Imperial concerning Imperial to the Company specifically for inclusion in the
Offering Documents relating to such Offering.
c. Notices of Claims; Procedures. Promptly after receipt by an indemnified
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party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Paragraph 8, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
indemnifying party of the commencement of such action; provided, that the
failure of the indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Paragraph 8, except
to the extent that the indemnifying party is actually materially prejudiced by
such failure to give notice. If any such action is brought against an
indemnified party (unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim) the indemnifying party will be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that, any Person entitled to indemnification hereunder shall have the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of such
Person unless (A) the indemnifying party has agreed to pay such fees or expenses
or (B) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person or (C) in the
reasonable judgment of any such Person based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person.) If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include, as an unconditional term thereof, the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. An indemnifying party who is not entitled to or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel in each jurisdiction for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
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d. Contribution. If the indemnification provided for in this Paragraph 8
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from the indemnifying party is unavailable to an indemnified party hereunder
(other than pursuant to the terms hereof) in respect of any losses, claims,
damages, liabilities, or expenses referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and indemnified parties
in connection with the actions that resulted in such losses, claims, damages,
liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such action. The amount paid
or payable by a Party as a result of the losses, claims, damages, liabilities,
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in this Paragraph 8(d), any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding. The Parties agree that it would not be just and equitable if
contributions pursuant to this Paragraph 8(d) were datelined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. No Person guilty of fraudulent
misrepresentation shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
e. This Paragraph 8 shall apply to each Registration Statement filed by
the Company pursuant to this Agreement that includes Imperial Shares.
9. Miscellaneous.
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a. Termination. Imperial's rights to demand registration or to
-----------
participate in underwritten Offerings of the Common Stock shall expire on July
1, 2002.
b. Amendments and Waivers. This Agreement may be amended, and the Company
----------------------
may take any action herein prohibited or omit to perform any act herein required
to be performed by it, only if the Company shall have obtained the written
consent of Imperial to such amendment, action or omission to act.
c. Successors, Assigns and Transferees. This Agreement shall be binding
-----------------------------------
upon the parties hereto and their respective successors and assigns.
d. Notices. Any notice, request, demand, consent, approval or other
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communication permitted or required to be given to any of the parties hereunder
shall be deemed given when received, shall be in writing, and shall be delivered
in person or sent by certified mail, postage prepaid, or by private courier
service or by telecopy or telex, to such party at its address set
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forth below or at such other address as such party may hereunder furnish in
writing to the other parties.
(i) if to the Company, to:
Southern Pacific Funding Corporation
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxx 00000
Attention: Secretary and Chief Financial Officer
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
40th Floor
Two Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X.X. Xxxx, Esq.
(ii) if to Imperial:
Imperial Credit Industries, Inc.
00000 Xxxxxxxxx Xxxx.
Xxxxxxxx 0, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
with a copy to:
Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxx, Xxxx Tower, 8th Floor
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
e. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of the
interpretation of this Agreement or any provision hereof.
f. Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, it being intended
that all rights, powers and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
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g. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed shall be deemed an original, and
all such counterparts shall together constitute one and the same instrument.
h. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the United States of America and, in the absence of
controlling federal law, in accordance with the laws of the State of California.
Any legal action or proceedings with respect to this Agreement shall be brought
in the federal courts of the United States located in New York and each of the
parties hereto submits to the exclusive jurisdiction of such courts and hereby
waives any objections on the grounds of venue, forum non conveniens or any
similar grounds.
i. Entire Agreement. This Agreement embodies the entire Agreement of the
----------------
parties hereto in relation to the subject matter hereof and supersedes all prior
understandings or agreements, oral or written, with respect thereto among the
parties hereto.
j. Certain Remedies. Without in any way limiting the remedies otherwise
----------------
available under this Agreement, the parties hereto acknowledge that, in the
event of any breach or nonperformance by any party of the agreements or
covenants required by this Agreement to be performed or observed by it, the
other parties shall be entitled to such equitable remedies as may be
appropriate, including without limitation specific performance.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
SOUTHERN PACIFIC FUNDING CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
IMPERIAL CREDIT INDUSTRIES, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
