EXHIBIT 3
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT (the "Amendment"), dated as of July 22, 1999, to
the Rights Agreement (the "Rights Agreement"), dated as of September 21, 1998,
between Imperial Credit Commercial Mortgage Investment Corp., a Maryland
corporation (the "Company"), and U.S. Stock Transfer Corporation, as Rights
Agent.
WHEREAS, the Company intends to enter into a Merger Agreement, dated as
of July 22, 1999, with Imperial Credit Industries, Inc. ("ICII") and Merger Sub
("Merger Sub") (as it may be amended from time to time, the "ICII Merger
Agreement"), pursuant to which Merger Sub will merge with and into the Company
(the "ICII Merger") upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Board of Directors of the Company believes that it is
advisable and in the best interests of the Company and its stockholders that the
transactions contemplated by the ICII Merger Agreement be consummated on the
terms set forth therein;
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company and its stockholders that the Rights Agreement
be amended as set forth herein; and
WHEREAS, Section 27 of the Rights Agreement authorizes the Board of
Directors of the Company and the Rights Agent to adopt the proposed amendment
without the approval of the holders of the Company's Right Certificates;
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Amendment) and agreements contained herein, the parties hereto
agree to amend the Rights Agreement as follows:
1. Section l(a) of the Rights Agreement is hereby amended by adding the
following sentences at the end thereof:
Neither ICII nor any other Person, shall be deemed to be an
Acquiring Person by virtue of the Merger Agreement, dated as
of July 22, 1999, by and among the Company, ICII and Merger
Sub (the "ICII Merger Agreement"), or by virtue of the merger
of Merger Sub with and into the Company (the "ICII Merger").
2. Section l(u) of the Rights Agreement is hereby modified and amended by adding
the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the Contrary, a
Shares Acquisition Date shall not be deemed to have occurred
solely as a result of (i) the approval, execution or delivery
of the ICII Merger Agreement or (ii) the commencement or
consummation of the ICII Merger.
3. Section 3(a) of the Rights Agreement is hereby modified and amended by adding
the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely
as a result of (i) the approval, execution or delivery of the
ICII Merger Agreement, (ii) the commencement or consummation
of the ICII Merger or (iii) the announcement or disclosure of
any of the foregoing.
4. Section 7(a) of the Rights Agreement is hereby modified and amended by
deleting the word "or" immediately prior to clause (iii) thereof, and by
inserting the following immediately following clause (iii) and prior to the
period at the end of such sentence:
, or (iv) the time immediately prior to the Effective Time (as
defined in the ICII Merger Agreement).
5.Section 13 of the Rights Agreement is hereby amended
by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary,
none of (i) the approval, execution or delivery of the ICII
Merger Agreement, or (ii) the commencement or consummation of
the ICII Merger, shall be deemed to be events of the type
described in the first sentence of this Section 13 and shall
not cause the Rights to be adjusted or exercisable in
accordance with, or any other action to be taken or obligation
to arise pursuant to, this Section 13.
6.Section 15 of the Rights Agreement is hereby modified and
amended by adding the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedy or claim under this Agreement in connection
with (i) the approval, execution or delivery of the ICII
Merger Agreement or (ii) the commencement or consummation of
the ICII Merger.
7.Section 25 of the Rights Agreement is hereby modified and
amended by adding a new section (c) at the end thereof:
(c) Notwithstanding anything in this Agreement to the contrary,
there is no right to notice under this Agreement in connection
with (i) the approval, execution or delivery of the ICII
Merger Agreement or (ii) the commencement or consummation of
the ICII Merger.
8. Section 29 of the Rights Agreement is hereby modified and
amended by adding the following sentence at the end thereof:
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Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement by virtue of
(i) the approval, execution or delivery of the ICII Merger
Agreement or (ii) the commencement or consummation of the ICII
Merger.
9. Capitalized terms used but not defined herein shall have the meaning assigned
to such terms in the Rights Agreement.
10. Except as expressly amended hereby, the Rights Agreement remains in full
force and effect.
11. This Amendment shall be deemed to be a contract made under the laws of the
State of Maryland, and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and
performed entirely within such State.
12. If any term, provision, covenant or restriction of this Amendment is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the other terms, provisions, covenants and restrictions of this
Amendment, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
13. This Amendment shall not be amended or modified in any manner unless such
amendment or modification is in writing and is executed by each of the parties
hereto.
14. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
IMPERIAL CREDIT COMMERCIAL
MORTGAGE INVESTMENT CORP.
Attest:
By /s/ Xxxxxxx Xxxxxxx By /s/ Xxxx Xxxxxx
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Name: Xxxxxxx Xxxxxxx Name: Xxxx Xxxxxx
Title: Senior V.P. and General Counsel Title: President and CEO
U.S. STOCK TRANSFER CORPORATION
Attest:
By /s/ Xxxxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Vice President
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