EXHIBIT 10.18
POST-RESTRUCTURING AGREEMENT
This POST-RESTRUCTURING AGREEMENT ("Agreement") is entered into this
8th day of June, 1999 by and among WCC Inc., a Nevada Corporation ("New
Servicer"), Capital Consultants, Inc., an Oregon corporation, for itself and as
agent for any investors it represents ("CCI") or its successors or assigns,
Wilshire Financial Services Group Inc., a Delaware corporation ("WFSG"), and
Wilshire Credit Corporation, a Nevada corporation, which shall change its name
to Capital Wilshire Holdings, Inc. ("CWH").
RECITALS
A. WFSG, CWH, Wilshire Servicing Corporation ("WSC"), Portland Servicing
Corporation ("PSC"), Xxxxxx Xxxxxxxxxx, Xxxxxxxx Xxxxxxxxxx and CCI have entered
into that certain Amended and Restated Restructuring Agreement dated January 19,
1999 (the "Restructuring Agreement").
B. The Restructuring Agreement contemplates the restructuring of WFSG, CWH and
WSC and the creation of New Servicer, which will be the sole provider of real
estate and loan management services for WFSG and its subsidiaries.
C. Pursuant to Section 8(C) of the Restructuring Agreement, CCI formed a
corporation which in turn formed a wholly-owned corporate subsidiary ("CWH
Mergeco Sub Corp."). CWH will merge with CWH Mergeco Sub Corp. CWH shall be the
surviving corporation and upon termination of that certain Transition Servicing
Agreement among New Servicer dated even herewith (the "Transition Servicing
Agreement") shall change its name from Wilshire Credit Corporation to Capital
Wilshire Holdings, Inc.
D. Pursuant to the Restructuring Agreement, CWH will assign to New Servicer all
of its right, title and interests in all of its assets (including, without
limitation, the right to the name Wilshire Credit Corporation and all rights to
and under all insurance policies) in exchange for the Class B Common Stock of
the New Servicer ("Class B Stock") and the assumption by New Servicer of all of
the liabilities of CWH (other than obligations under the WCC Loan Agreement and
Claims (as each term is defined in the Restructuring Agreement) against CWH or
PSC).
E. Pursuant to the Restructuring Agreement, WFSG will contribute all of the
outstanding common stock of WSC to New Servicer for all of the outstanding Class
A common stock of New Servicer ("Class A Stock").
F. New Servicer will receive material benefits, both direct and indirect, from
the consummation of the transactions contemplated by the Restructuring
Agreement.
1
G. The parties hereto desire to document the respective obligations of each
party upon the consummation of the Restructuring.
AGREEMENT
For good and valuable consideration, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Restructuring Agreement.
2. INDEBTEDNESS. New Servicer agrees solely for the benefit of the holder of the
New Servicer Class B Common Stock that neither it nor any subsidiary performing
loan servicing shall incur debt for borrowed money other than debt incurred for
working capital to finance the operations of New Servicer or such subsidiary as
a loan servicer (including, without limitation, the financing of advances made
by New Servicer or such subsidiary, as servicer, with respect to loans, REO
properties and servicing expenses in the ordinary course of business) and to
finance the acquisition of servicing rights; provided that such operations and
acquisitions shall be on a good faith, arms-length basis, at fair market value
in connection with the business of New Servicer or such subsidiary as a
servicing company.
3. SERVICING. New Servicer and its subsidiaries shall be the sole servicer for
WFSG and its subsidiaries for servicing performed in the United States and any
such servicing agreements which are held or acquired by WFSG or any such
subsidiary other than New Servicer shall be transferred to New Servicer (unless,
in relation to those servicing agreements for which Wilshire Servicing
Corporation ("WSC") is master servicer, the consent of a third party would be
required for such transfer, in which case such agreements will be subserviced to
New Servicer); provided, however, if the Office of Thrift Supervision (or other
similar governing body) requires or recommends (and officers of the bank
determines that it is prudent to follow such recommendation) that the servicing
for First Bank of Xxxxxxx Hills, FSB and its subsidiaries (the "Bank") be
effected by a third party, this provision shall not apply to the servicing for
the Bank; provided, that, in such event, for purposes of the calculation
contemplated with respect to the exchange rights of the Class B Common Stock of
New Servicer contained in that certain Exchange Rights Agreement between WFSG
and CCI of this same date ("Exchange Agreement"), the parties shall impute to
the total earnings of New Servicer an amount equal to the earnings which would
have been earned had New Servicer continued to be the servicer for the Bank
during the applicable calculation period. New Servicer shall not transfer the
stock of WSC without the prior written consent of CWH, except that WSC and New
Servicer may merge without the consent of CWH.
4. WFSG DIVIDENDS. Dividends declared by WFSG during the twenty-four month
period in which New Servicer Class B Common Stock may not be exchanged for WFSG
common
2
stock pursuant to the Exchange Agreement shall be shared pro rata (determined at
the time of declaration as though the New Servicer Class B Common Stock had been
converted to WFSG common stock pursuant to the Exchange Agreement) pursuant to
the Exchange Agreement with the holder of the New Servicer Class B Common Stock;
provided, that such dividends (including stock rights or similar rights) may be
held in escrow pending the conversion of the New Servicer Class B Common Stock
into WFSG common stock; provided, however, that such dividends shall not be so
shared with the holder of the New Servicer Class B Common Stock to the extent
such dividends represent a pass-through of dividends declared and distributed by
New Servicer and shared with the holder of the New Servicer Class B Common Stock
pursuant to Article III, Section 1 of New Servicer's Amended and Restated
Articles of Incorporation.
5. NOTICE OF LIQUIDATION. In the event WFSG determines that it is necessary or
prudent to liquidate its assets, WFSG shall use its best efforts (subject to the
fiduciary and other legal obligations imposed upon its board of directors,
including obligations concerning confidentiality and restrictions under
applicable securities law) to:
A. Provide commercially reasonable prior notice (taking into
account the specific facts and circumstances) to CCI or CCI's
assignee if such assignee is Sterling Capital, LLC (together,
"CCI/Sterling") of any such action undertaken by WFSG;
A. Provide CCI/Sterling with the same information as is provided
the board of directors concerning the proposed liquidation and
to provide representatives of CCI/Sterling the opportunity to
attend meetings of the board of directors relating to the
proposed liquidation;
A. Provide CCI/Sterling a commercially reasonable time (taking
into account the specific facts and circumstances) in which
CCI/Sterling may offer to purchase the assets of WFSG and
obtain financing therefor or entertain offers from other
potential buyers.
6. INFORMATION TO SHAREHOLDERS. So long as the New Servicer Class B Common Stock
is pledged to or owned by CCI/Sterling, WFSG shall provide to CCI/Sterling
promptly upon the filing or sending thereof, a copy of any annual, periodic or
special report or registration statement (inclusive of exhibits thereto) filed
by WFSG with the SEC or any securities exchange and of each communication from
WFSG to shareholders generally. In addition, WFSG shall provide, on or before
April 30 of each year, a certificate of its chief financial officer that the
expenses of New Servicer for the immediately preceding fiscal year have been
allocated on a commercially reasonable basis in accordance with GAAP between New
Servicer and WFSG. In addition, WFSG shall use its best efforts (subject to the
fiduciary obligations imposed upon its board of directors, including obligations
concerning confidentiality and
3
restrictions under applicable securities law) to promptly notify CCI/Sterling
of any offers for the sale of WFSG which are under serious consideration,
including the price and material terms. Further, New Servicer shall provide
to CCI/Sterling, upon the written request of CCI/Sterling, New Servicer's
quarterly income statement and balance sheet prepared in conjunction with the
preparation of financial statements by WFSG (it being acknowledged by all
parties that such income statement and balance sheet may not be prepared in
accordance with GAAP).
7. POST-CLOSING CONTRIBUTIONS.
A. Section 1 of Article III of New Servicer's Amended and
Restated Articles of Incorporation (the "Articles") provides
as follows:
If at any time after the date hereof the holders of shares of
either the Class A Stock or the Class B Stock makes a capital
contribution to New Servicer that is not matched by the
holders of the Class A Stock or the Class B Stock, as the case
may be, pro rata according to their respective dividend rights
set forth in Section 1 of Article III of the Articles (a
"Post-Closing Contribution"), New Servicer may declare and
distribute a special dividend solely to the shareholders
making the Post-Closing Contribution as follows: (i) if the
Post-Closing Contribution consists of cash, an amount equal to
such contribution or (ii) if the Post-Closing Contribution
consists of an asset, the asset so contributed (or the
proceeds thereof); PROVIDED that no additional contribution by
the holders of Class B Stock made in connection with that
certain Transition Servicing Agreement shall be deemed a
Post-Closing Contribution.
B. If either WFSG or CCI elects to make a Post-Closing
Contribution (as defined in and contemplated by Section 1 of
Article III of New Servicer's Amended and Restated Articles of
Incorporation), such party shall use reasonable efforts to
provide notice to the other party of such contribution,
including the nature and value of such contribution.
C. If New Servicer elects to make a distribution of the
Post-Closing Contribution to the shareholder having made such
contribution, it shall give the shareholder not making such
contribution notice within 30 days after such distribution.
D. In the case of a distribution relating to a Post-Closing
Contribution consisting of an asset, if the shareholder
receiving the notice referred to in Section 7(B) reasonably
believes that the value of such distribution exceeds the value
of the
4
Post-Closing Contribution to which the distribution relates,
such shareholder shall have the right to demand an independent
appraisal of the value of such distribution and the
Post-Closing Contribution to which the distribution relates.
If the appraised value of the Post-Closing Contribution is
less than 90 percent of the value of the distribution, the
shareholder receiving the distribution shall be responsible
for the costs of the appraisal. If the appraised value of the
Post-Closing Contribution is 90 percent or more of the value
of the distribution, the shareholder demanding the appraisal
shall be responsible for the costs of the appraisal.
8. VOTING AGREEMENT. In the event that CWH elects to convert its shares of Class
B Stock into Class A Stock, as a condition precedent to such conversion CWH and
New Servicer shall enter into a voting agreement substantially in the form
attached as EXHIBIT A.
9. INTERPRETATION.
(a) AMBIGUITIES. The parties acknowledge that each party and
its counsel has materially participated in the drafting of this
Agreement; consequently, the rule of contract interpretation, that
ambiguities, if any, in a writing be construed against the drafter,
shall not apply.
(b) HEADINGS. The section headings in this Agreement are
included for convenience only; they do not give full notice of the
terms of any portion of this Agreement and are not relevant to the
interpretation of any provision of this Agreement.
(c) GOVERNING LAW. The parties intend that this Agreement
shall be governed by and construed in accordance with the laws of the
state of Oregon applicable to contracts made and wholly performed
within Oregon by persons domiciled in Oregon, without regard to choice
of law rules.
(d) SEVERABILITY. Any provision of this Agreement that is
deemed invalid or unenforceable shall be ineffective to the extent of
such invalidity or unenforceability, without rendering invalid or
unenforceable the remaining provisions of this Agreement. Furthermore,
in lieu of each such invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement, a provision as similar
in terms to such invalid or unenforceable provision as may be possible
and be valid and enforceable.
5
10. ACCOUNTS. As of January 19, 1999, CCI, in addition to that certain account
in the name of Wilshire Credit Corporation existing at Bear Xxxxxxx (Account No.
277-04722-1-1), was entitled to all funds contained in that certain account in
the name of Wilshire Credit Corporation existing at First American Title Company
(Money Market Account No. 98-160944A) and in that certain account in the name of
Portland Servicing Corporation existing at Bear Xxxxxxx (Account No.
277-05050-1-0), and Wilshire Credit Corporation and Portland Servicing
Corporation each released their respective interests in such accounts as of
January 19, 1999.
11. DISSOLUTION OF CWH. CWH shall not dissolve within two years of the date of
this Agreement.
12. TERMINATION. The respective rights and obligations of the parties contained
in this Agreement shall terminate upon the exchange of the New Servicer Class B
Common Stock for WFSG Common Stock pursuant to the Exchange Agreement or the
liquidation of New Servicer. The respective rights and obligations of the
parties contained in Sections 2, 3, 5 and 6 shall terminate upon the earlier of
the conversion of the New Servicer Class B Common Stock into shares of New
Servicer Class A Common Stock.
12. INTEGRATION; AMENDMENT. This Agreement constitutes the entire agreement of
the parties relating to the subject matter hereof. There are no promises, terms,
conditions, obligations, or warranties other than those contained in such
document and such document supersedes all prior communications, representations,
or agreements, verbal or written, among the parties relating to the subject
matter hereof. This Agreement may not be amended except in writing executed by
all of the parties hereto.
13. WAIVER. No provision of this Agreement shall be deemed to have been waived
unless such waiver is in writing signed by the waiving party. No failure by any
party to insist upon the strict performance of any provision of this Agreement
or to exercise any right or remedy consequent upon a breach thereof, shall
constitute a waiver of any such breach, of such provision or of any other
provision. No waiver of any provision of this Agreement shall be deemed a waiver
of any other provision of this Agreement or a waiver of such provision with
respect to any subsequent breach, unless expressly provided in writing.
14. NOTICE. All notices required or permitted to be given under this Agreement
shall be in writing. Notices may be served by certified or registered mail,
postage paid with return receipt requested; by private courier, prepaid; by
telex, facsimile, or other telecommunication device capable of transmitting or
creating a written record; or personally. Mailed notices shall be deemed
delivered five days after mailing, properly addressed. Couriered notices shall
be deemed delivered when delivered as addressed, or if the addressee refuses
delivery, when presented for delivery notwithstanding such refusal. Telex or
telecommunicated notices shall be deemed delivered when receipt is either
confirmed by confirming transmission equipment
6
or acknowledged by the addressee or its office. Personal delivery shall be
effective when accomplished. Unless a party changes its address by giving notice
to the other party as provided herein, notices shall be delivered to the parties
at the following addresses:
If to WFSG: 0000 X.X. Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxx
Facsimile No. (000) 000-0000
With copies to: Stoel Rives LLP
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile No. (000) 000-0000
If to New Servicer: 0000 XX Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Facsimile No. (000) 000-0000
With copies to: Stoel Rives LLP
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile No. (000) 000-0000
If to CCI or CWH: Capital Consultants, Inc.
0000 X.X. Xxxxx Xxx.
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile No. (000) 000-0000
With copies to: Xxxx Xxxxxx Xxxxxx Lubersky LLP
000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Facsimile No. (000) 000-0000
15. DISPUTE RESOLUTION. Other than claims for specific performance, injunctive
or other equitable relief, which shall be resolved by appropriate court action,
and claims arising from or related to a bankruptcy petition filed by or against
any person, which shall be resolved in
7
bankruptcy court, any dispute between any of the parties to this Agreement,
whether or not arising out of this Agreement, will be resolved by binding
arbitration in Portland, Oregon, conducted in accordance with the provisions of
ORS 36.300 ET SEQ., including any amendments thereto. The arbitration shall take
place in Portland, Oregon, and the parties shall have full and complete rights
to all discovery provided in accordance with the Oregon Rules of Civil
Procedure, including but not limited to depositions, requests for production of
documents, requests for admissions, and as otherwise provided in said Rules of
Civil Procedure. The parties shall mutually agree to selection of the
arbitrator, and agree that disputes under five (5) million dollars shall be
decided by a single arbitrator. Any dispute in excess of that amount shall be
determined by three arbitrators. In the event the parties are unable to agree,
such arbitrator or arbitrators shall be selected by the presiding circuit court
judge for Multnomah County, District No. 4. Any requests or pendency of the
arbitration shall not be a bar or in any way a defense to either party seeking
appropriate specific performance or equitable relief from any court of competent
jurisdiction or from a bankruptcy court consistent with the terms of this
Agreement. The award of arbitration shall be final and judgment shall be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof.
16. ATTORNEY FEES. If any suit or action arising out of or related to this
Agreement is brought by any party hereto, the prevailing party or parties shall
be entitled to recover the costs and fees (including without limitation
reasonable attorney fees, the fees and costs of experts and consultants,
copying, courier and telecommunication costs, and deposition costs and all other
costs of discovery) incurred by such party or parties in such suit or action,
including without limitation at arbitration, trial, any post-trial or appellate
proceeding, or in any bankruptcy proceeding.
17. SURVIVAL; ASSIGNMENT; BINDING EFFECT. The representations, warranties and
covenants contained in this Agreement shall survive the closing of the
transactions contemplated herein. This Agreement shall bind and inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors, heirs, and assigns.
18. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement binding on all the
parties, notwithstanding that all parties are not signatories to the same
counterpart.
8
IN WITNESS WHEREOF, the parties hereto execute this Services Agreement
as of the date first written above.
WCC INC.,
a Nevada corporation
By:____________________________________
Name: Xxxxxxx Xxxxxxx
Title: President
WILSHIRE FINANCIAL SERVICES GROUP INC.,
a Delaware corporation
By:____________________________________
Name:
Title:
WILSHIRE CREDIT CORPORATION,
a Nevada corporation
By:____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
CAPITAL CONSULTANTS, INC.,
an Oregon corporation, for itself and
as agent for its Investors
By:____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
9
EXHIBIT A
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") dated as of _________, 1999, is
among WCC Inc., a Nevada corporation (the "Company") and ________ as holders of
Class B Common Stock of the Company (the "Holders").
RECITALS
A. WHEREAS, the Holders propose to convert their shares of the
Company's Class B Common Stock (the "Class B Stock") for shares of the Company's
Class A Common Stock (the "Class A Stock") pursuant to the Company's Amended and
Restated Articles of Incorporation (the "Converted Stock"); and
B. WHEREAS, the parties hereto desire to provide for the Holders to
vote their shares of Converted Stock in a certain manner with respect to all
business of the Company.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing Recitals and in
consideration of the mutual covenants contained herein, the parties agree as
follows:
1. No Transfer of Voting Stock in Violation of this Agreement. Until
this Agreement is terminated, as provided herein, no party to this Agreement
will transfer any voting stock in the Company to any person not a party to this
Agreement immediately prior to such transfer, unless such transferee, as a
condition of such transfer, becomes a party to this Agreement by executing a
signature page hereto and by delivering a copy thereof to the Company. Each
certificate representing voting stock of the Company issued in the name of a
party to this Agreement shall contain substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING AGREEMENT
AMONG CERTAIN STOCKHOLDERS, A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICE OF THE COMPANY OR MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY.
The Company shall not permit the transfer of any such shares of voting
stock on its books or issue a new certificate upon transfer of any such voting
stock unless the person to whom such voting stock is to be transferred shall
have become a party to this Agreement.
1
2. Voting of Shares. Each Holder of Class B Stock executing this
Agreement, upon conversion of such Class B Stock pursuant to its terms into
Class A Stock shall, in voting on any matter, vote all shares of voting stock of
the Company as to which such party has voting discretion, consistent with the
voting on a pro rata basis of the Class A Stock outstanding prior to the
conversion of any shares of Class B Stock.
3. Grant of Proxy. Should the provisions of this Agreement be construed
to constitute the granting of proxies, such proxies shall be deemed coupled with
an interest and are irrevocable for the term of this Agreement.
4. Manner of Voting. The voting of shares pursuant to this Agreement
may be effected in person, by proxy, by written consent or in any other manner
permitted by applicable law.
5. Term and Termination. This Agreement shall become effective upon the
conversion of the Class B Stock into Class A Stock and shall continue in full
force and effect through the earliest of the following dates, on which it shall
terminate in its entirety:
5.1 The consummation of the Company's sale of its common stock
in a bona fide, firm commitment, underwritten public offering pursuant to an
effective registration statement on Form S-1 (or its successor form) under the
Securities Act of 1933, as amended.
5.2 A merger or consolidation of the Company into or with
another corporation after which the shareholders of the Company immediately
before such transaction shall own less than 50% of the voting equity securities
of the surviving corporation or its parent; or
5.3 The sale, lease, transfer, or other disposition of all or
substantially all of the Company's assets.
6. Miscellaneous.
6.1 Specific Performance. The parties hereto hereby declare
that it is impossible to measure in money the damages which will accrue to a
party hereto or to their heirs, personal representatives or assigns by reason of
a failure to perform any of the obligations under this Agreement and agree that
the terms of this Agreement shall be specifically enforceable, and appropriate
injunctive relief may be applied for and granted in connection therewith. In any
action or proceeding to specifically enforce the provisions hereof, any person
against whom such action or proceeding is brought hereby waives the claim of
defense therein that such party has an adequate remedy at law, and such person
shall not offer in any such action or proceeding the claim or defense that such
remedy at law exists. Such equitable remedies shall, however, be cumulative and
not exclusive and shall be in
2
addition to any other remedies that any party may have under this Agreement or
otherwise.
6.2 Other Voting Agreements. The Holders represent and agree
that they are not and will not become parties to any voting trust, agreement for
voting control, or other like agreement involving any of the voting equity
securities of the Company owned by them during the term of this Agreement, which
trust or agreement is in conflict with the terms of this Agreement.
6.3 Governing Law. This Agreement, and the rights of the
parties hereto, shall be governed by and construed in accordance with the laws
of the state of Oregon, exclusive of choice of law rules.
6.4 Amendment. Any term or provision of this Agreement may be
amended only by a writing signed by the Company, the parties and a majority of
the holders of Class A Stock.
6.5 Severability. If any provision of this Agreement is held
to be invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
6.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same agreement.
6.7 Absence of Third-Party Beneficiary Rights. No provisions
of this Agreement are intended nor shall be interpreted to provide or create any
third-party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder or partner of any party hereto, or any other
person, unless specifically provided otherwise herein and, except as so
provided, all provisions hereof shall be personal solely between the parties to
this Agreement.
6.8 Entire Agreement. This Agreement, the documents referenced
herein and the exhibits thereto constitute the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect to such subject matters.
[SIGNATURE PAGE FOLLOWS]
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: WCC INC.
By:______________________________
Name:
Title:
HOLDERS: [HOLDER]
By:______________________________
Name:
Title:
[HOLDER]
By:______________________________
Name:
Title:
4
