EXHIBIT 10.11.1
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XXXXXXXXX MORTGAGE, INC.
$200,000,000
8.00% SENIOR NOTES DUE 2013
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FIRST SUPPLEMENTAL INDENTURE
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Dated as of May 15, 2003
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DEUTSCHE BANK
TRUST COMPANY AMERICAS
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)............................................................................... 7.10
(a)(2)............................................................................... 7.10
(a)(3)............................................................................... N.A.
(a)(4)............................................................................... N.A.
(a)(5)............................................................................... 7.10
(b).................................................................................. 7.10
(c).................................................................................. N.A.
311 (a).................................................................................. 7.11
(b).................................................................................. 7.11
(c).................................................................................. N.A.
312 (a).................................................................................. 2.05
(b).................................................................................. 11.03
(c).................................................................................. 11.03
313 (a).................................................................................. 7.06
(b)(2)............................................................................... 7.07
(c).................................................................................. 7.06; 11.02
(d).................................................................................. 7.06
314 (a).................................................................................. 4.03; 11.02
(c)(1)............................................................................... 11.04
(c)(2)............................................................................... 11.04
(c)(3)............................................................................... N.A.
(e).................................................................................. 11.05
(f).................................................................................. N.A.
315 (a).................................................................................. 7.01
(b).................................................................................. 7.05, 11.02
(c).................................................................................. 7.01
(d).................................................................................. 7.01
(e).................................................................................. 6.11
316 (a) (last sentence).................................................................. 2.09
(a)(1)(A)............................................................................ 6.05
(a)(1)(B)............................................................................ 6.04
(a)(2)............................................................................... N.A.
(b).................................................................................. 6.07
(c).................................................................................. 2.13
317 (a)(1)............................................................................... 6.08
(a)(2)............................................................................... 6.09
(b).................................................................................. 2.04
318 (a).................................................................................. 11.01
(b).................................................................................. N.A.
(c).................................................................................. 11.01
N.A. means not applicable.
* This Cross-Reference Table is not part of this First Supplemental Indenture.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.................................................1
Section 1.01. Definitions...........................................................................1
Section 1.02. Other Definitions....................................................................18
Section 1.03. Incorporation by Reference of Trust Indenture Act....................................18
Section 1.04. Rules of Construction................................................................19
ARTICLE II THE NOTES.................................................................................19
Section 2.01. Creation of the Notes................................................................19
Section 2.02. Form and Dating......................................................................19
Section 2.03. Execution and Authentication.........................................................20
Section 2.04. Registrar and Paying Agent...........................................................21
Section 2.05. Paying Agent to Hold Money in Trust..................................................21
Section 2.06. Holder Lists.........................................................................21
Section 2.07. Transfer and Exchange................................................................21
Section 2.08. Legends..............................................................................23
Section 2.09. Replacement Notes....................................................................24
Section 2.10. Outstanding Notes....................................................................25
Section 2.11. Treasury Notes.......................................................................25
Section 2.12. Temporary Notes......................................................................25
Section 2.13. Cancellation.........................................................................25
Section 2.14. Defaulted Interest...................................................................26
Section 2.15. Record Date..........................................................................26
Section 2.16. CUSIP Numbers........................................................................26
ARTICLE III REDEMPTION AND PREPAYMENT.................................................................26
Section 3.01. Notices to Trustee...................................................................26
Section 3.02. Selection of Notes to Be Redeemed....................................................26
Section 3.03. Notice of Redemption.................................................................27
Section 3.04. Effect of Notice of Redemption.......................................................27
Section 3.05. Deposit of Redemption Price..........................................................27
Section 3.06. Notes Redeemed in Part...............................................................28
Section 3.07. (a) Optional Redemption.............................................................28
Section 3.08. Mandatory Redemption.................................................................29
ARTICLE IV COVENANTS.................................................................................29
Section 4.01. Payment of Notes.....................................................................29
Section 4.02. Maintenance of Office or Agency......................................................29
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Section 4.03. Reports to Holders...................................................................29
Section 4.04. Compliance Certificate...............................................................30
Section 4.05. Taxes................................................................................30
Section 4.06. Stay, Extension and Usury Laws.......................................................30
Section 4.07. Limitation on Restricted Payments....................................................31
Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.........32
Section 4.09. Limitation on Incurrence of Additional Senior Unsecured Indebtedness.................33
Section 4.10. Limitation on Incurrence of Additional Consolidated Indebtedness.....................34
Section 4.11. Limitation Based Upon Total Unencumbered Assets......................................34
Section 4.12. Limitations on Transactions with Affiliates..........................................34
Section 4.13. Limitation on Liens..................................................................35
Section 4.14. Corporate Existence..................................................................36
Section 4.15. Offer to Repurchase Upon Change of Control...........................................36
Section 4.16. Limitation on Preferred Stock of Subsidiaries........................................37
Section 4.17. Conduct of Business..................................................................37
Section 4.18. Limitation of Guarantees by Subsidiaries.............................................37
Section 4.19. Termination of Certain Covenants In Event of Investment Grade Rating.................38
Section 4.20. Maintenance of Properties; Books and Records; Compliance with Law....................38
ARTICLE V EXCHANGE OFFER; REGISTRATION RIGHTS AGREEMENT.............................................39
ARTICLE VI SUCCESSORS................................................................................40
Section 6.01. Merger, Consolidation and Sale of Assets.............................................40
Section 6.02. Successor Corporation Substituted....................................................41
ARTICLE VII DEFAULTS AND REMEDIES.....................................................................41
Section 7.01. Events of Default....................................................................41
Section 7.02. Acceleration.........................................................................42
Section 7.03. Other Remedies.......................................................................43
Section 7.04. Waiver of Past Defaults..............................................................43
Section 7.05. Control by Majority..................................................................44
Section 7.06. Limitation on Suits..................................................................44
Section 7.07. Rights of Holders of Notes to Receive Payment........................................44
Section 7.08. Collection Suit by Trustee...........................................................44
Section 7.09. Trustee May File Proofs of Claim.....................................................44
Section 7.10. Priorities...........................................................................45
Section 7.11. Undertaking for Costs................................................................45
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ARTICLE VIII TRUSTEE...................................................................................45
Section 8.01. Duties of Trustee....................................................................45
Section 8.02. Rights of Trustee....................................................................47
Section 8.03. Individual Rights of Trustee.........................................................47
Section 8.04. Trustee's Disclaimer.................................................................47
Section 8.05. Notice of Defaults...................................................................47
Section 8.06. Reports by Trustee...................................................................47
Section 8.07. Compensation and Indemnity...........................................................48
Section 8.08. Replacement of Trustee...............................................................48
Section 8.09. Successor Trustee by Merger, etc.....................................................49
Section 8.10. Eligibility; Disqualification........................................................49
Section 8.11. Preferential Collection of Claims....................................................49
ARTICLE IX LEGAL DEFEASANCE AND COVENANT DEFEASANCE..................................................50
Section 9.01. Option to Effect Legal Defeasance or Covenant Defeasance.............................50
Section 9.02. Legal Defeasance and Discharge.......................................................50
Section 9.03. Covenant Defeasance..................................................................50
Section 9.04. Conditions to Legal or Covenant Defeasance...........................................51
Section 9.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.............................................................52
Section 9.06. Repayment to Company.................................................................52
Section 9.07. Reinstatement........................................................................52
ARTICLE X AMENDMENT, SUPPLEMENT AND WAIVER..........................................................53
Section 10.01. Without Consent of Holders of Notes..................................................53
Section 10.02. With Consent of Holders of Notes.....................................................53
Section 10.03. Compliance with Trust Indenture Act..................................................55
Section 10.04. Revocation and Effect of Consents....................................................55
Section 10.05. Notation on or Exchange of Notes.....................................................55
Section 10.06. Trustee to Sign Amendments, etc......................................................55
ARTICLE XI SATISFACTION AND DISCHARGE................................................................55
Section 11.01. Satisfaction and Discharge...........................................................55
Section 11.02. Application of Trust Money...........................................................56
ARTICLE XII MISCELLANEOUS.............................................................................56
Section 12.01. Trust Indenture Act Controls.........................................................56
Section 12.02. Notices..............................................................................56
Section 12.03. Communication by Holders of Notes with Other Holders of Note.........................57
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Section 12.04. Certificate and Opinion as to Conditions Precedent...................................57
Section 12.05. Statements Required in Certificate or Opinion........................................58
Section 12.06. Rules by Trustee and Agents..........................................................58
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.............58
Section 12.08. Governing Law........................................................................58
Section 12.09. No Adverse Interpretation of Other Agreements........................................58
Section 12.10. Successors...........................................................................58
Section 12.11. Severability.........................................................................58
Section 12.12. Counterpart Originals................................................................58
Section 12.13. Table of Contents, Headings, etc.....................................................59
Section 12.14. Conflicts with Supplemental Indenture................................................59
EXHIBITS
Exhibit A FORM OF INITIAL RESTRICTED GLOBAL NOTE
Exhibit B FORM OF INITIAL REGULATION S GLOBAL NOTE
Exhibit C FORM OF INITIAL CERTIFICATED NOTE
Exhibit D FORM OF EXCHANGE GLOBAL NOTE
Exhibit E FORM OF EXCHANGE CERTIFICATED NOTE
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SUPPLEMENTAL INDENTURE dated as of May 15, 2003 between Xxxxxxxxx
Mortgage, Inc., a Maryland corporation (the "Company"), and Deutsche Bank Trust
Company Americas, as trustee (the "Trustee").
WHEREAS, the Company has heretofore delivered to the Trustee an
Indenture ("Original Indenture") dated as of May 15, 2003, providing for the
issuance from time to time of debt Securities of the Company;
WHEREAS, the Original Indenture provides that by means of a supplemental
indenture, the Company may create one or more series of its debt Securities and
establish the form and terms and conditions thereof;
WHEREAS, the Company intends by this First Supplemental Indenture to
create and provide for the following series of debt Securities (the "Initial
Notes"):
(i) 8.00% Senior Notes due 2013, initially in an aggregate principal
amount of $200,000,000;
WHEREAS, the Company further intends by this First Supplemental
Indenture to create and provide for, if and when issued in exchange for the
Initial Notes pursuant to this First Supplemental Indenture and the Registration
Rights Agreement (defined below), the following additional series of debt
Securities:
(i) 8.00% Senior Notes due 2013 (the "Exchange 2013 Notes," and
together with the Initial Notes, the "2013 Notes"), initially in an aggregate
principal amount of $200,000,000;
WHEREAS, the Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this First
Supplemental Indenture; and
WHEREAS, The Company and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Capitalized terms used and not defined herein shall
have the meanings assigned to them in the Indenture.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case whether or not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Subsidiary
of the Company or such acquisition, merger or consolidation.
"Additional Notes" means Notes (other than the Initial Notes) issued
under this First Supplemental Indenture in accordance with Section 2.03.
"Adjusted Debt" means aggregate Indebtedness of the Company and its
Consolidated Subsidiaries, net of Non-Marginable Indebtedness and fair value
adjustments to hedging instruments.
"Adjusted Earnings" means with respect to any Person, for any period,
the sum (without duplication) of: Consolidated Net Income and, to the extent
Consolidated Net Income has already been reduced thereby, depreciation and
amortization.
"Adjusted Net Worth" means Consolidated Adjusted Tangible Net Worth plus
Senior Unsecured Indebtedness less NMI Equity.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting Securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means: (1) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or any Subsidiary of the Company, or
shall be merged with or into the Company or any Subsidiary of the Company; or
(2) the acquisition by the Company or any Subsidiary of the Company of the
assets of any Person (other than a Subsidiary of the Company) that constitute
all or substantially all of the assets of such Person or comprises any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any
Subsidiary of the Company (including any sale and leaseback transaction) to any
Person other than the Company or a Wholly Owned Subsidiary of the Company of:
(1) any Capital Stock of any Subsidiary of the Company; or
(2) any of the Company's or the Subsidiaries' other property
or assets other than sales of loan-related assets made in the ordinary
course of the Company's real estate lending and loan acquisition
business and other asset sales made in the ordinary course of the
Company's business.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978,
as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means, as to any Person, the Board of Directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of New York
are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means, as to any Person, the obligations
of such Person under a lease that are required to be classified and accounted
for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each
class of Common Stock and Preferred Stock of such Person; and
(2) with respect to any Person that is not a corporation,
any and all partnership, membership or other equity interests of such
Person.
"Change of Control" means the occurrence of one or more of the following
events:
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the assets of the Company to any Person or group of related
Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this First Supplemental Indenture);
(2) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions
of this First Supplemental Indenture);
(3) any Person or Group shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than
50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company; or
(4) the replacement of a majority of the Board of Directors
of the Company over a two-year period from the directors who constituted
the Board of Directors of the Company at the beginning of such period,
and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company then still in office
who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved.
"Clearstream Banking" means Clearstream Banking, societe anonyme, its
successors and assigns.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, in each case as in effect from time to time.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this First Supplemental Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
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"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means Xxxxxxxxx Mortgage, Inc. and any and all successors
thereto that become a party to this First Supplemental Indenture in accordance
with its terms.
"Consolidated Adjusted Tangible Net Worth" of any Person means the
excess of such Person's total assets over its total liabilities determined on a
consolidated basis in accordance with GAAP, plus the principal amount of any
Subordinated Indebtedness, excluding (1) Other Comprehensive Income or Loss, (2)
goodwill and (3) other intangibles, in each case as of the end of the last
completed fiscal quarter ending on or prior to the date of the transaction
giving rise to the need to calculate Consolidated Adjusted Tangible Net Worth.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced
thereby:
(a) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such
period (other than income taxes attributable to extraordinary
gains or losses and direct impairment charges or the reversal of
such charges on the Company's assets);
(b) Consolidated Senior Unsecured Indebtedness
Interest Expense; and
(c) depreciation and amortization;
all as determined on a consolidated basis for such Person and its Subsidiaries
in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
before the payment of dividends on Preferred Stock for such period on a
consolidated basis, determined in accordance with GAAP; provided that there
shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or
abandonments or reserves relating thereto (including gains and losses
from the sale of corporate tenant lease assets);
(2) after-tax items classified as extraordinary gains or
losses and direct impairment charges or the reversal of such charges on
the Company's assets;
(3) the net income of any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a Subsidiary
of the referent Person or is merged or consolidated with the referent
Person or any Subsidiary of the referent Person;
(4) the net income (but not loss) of any Subsidiary of the
referent Person to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by
a contract, operation of law or otherwise, except for such restrictions
permitted by
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clauses (f), (g) and (h) of Section 4.08 whether such permitted
restrictions exist on the Issue Date or are created thereafter;
(5) the net income or loss of any other Person, other than a
Consolidated Subsidiary of the referent Person, except:
(a) to the extent (in the case of net income) of
cash dividends or distributions paid to the referent Person, or
to a Wholly Owned Subsidiary of the referent Person (other than
a Subsidiary described in clause (4) above), by such other
Person; or
(b) that the referent Person's share of any net
income or loss of such other Person under the equity method of
accounting for Affiliates shall not be excluded;
6. any restoration to income of any contingency reserve of
an extraordinary, nonrecurring or unusual nature, except to the extent
that provision for such reserve was made out of Consolidated Net Income
accrued at any time following the Issue Date;
7. income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued);
and
8. in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, as of the end of the last completed fiscal
quarter ending on or prior to the date of the transaction giving rise to the
need to calculate Consolidated Net Worth determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person and interests in such Person's
Consolidated Subsidiaries not owned, directly or indirectly, by such Person.
"Consolidated Senior Unsecured Indebtedness Interest Coverage Ratio"
means, with respect to any Person, the ratio of Consolidated EBITDA of such
Person during the four full fiscal quarters (the "Four Quarter Period") ending
prior to the date of the transaction giving rise to the need to calculate the
Consolidated Senior Unsecured Indebtedness Interest Coverage Ratio for which
financial statements are available (the "Transaction Date") to Consolidated
Senior Unsecured Indebtedness Interest Expense of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Senior
Unsecured Indebtedness Interest Expense" shall be calculated after giving effect
on a pro forma basis for the period of such calculation to:
(1) the incurrence or repayment of any Senior Unsecured
Indebtedness of such Person or any of its Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make
such calculation and any incurrence or repayment of other Senior
Unsecured Indebtedness (and the application of the proceeds thereof),
other than the incurrence or repayment of Senior Unsecured Indebtedness
in the ordinary course of business for working capital purposes pursuant
to working capital facilities, occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such incurrence or repayment,
as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period; and
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(2) any asset sales or other dispositions or any asset
originations, asset purchases, Investments and Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the
need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person who becomes a Subsidiary as a result
of the Asset Acquisition) incurring, assuming or otherwise being liable
for Senior Unsecured Indebtedness that is Acquired Indebtedness and also
including any Consolidated EBITDA (including any pro forma expense and
cost reductions calculated on a basis consistent with Regulation S-X
under the Exchange Act) attributable to the assets which are originated
or purchased, the Investments that are made and the assets that are the
subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such asset sale or other
disposition or asset origination, asset purchase, Investment or Asset
Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four
Quarter Period. If such Person or any of its Subsidiaries directly or
indirectly guarantees Senior Unsecured Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such
guaranteed Senior Unsecured Indebtedness as if such Person or any
Subsidiary of such Person had directly incurred or otherwise assumed
such guaranteed Senior Unsecured Indebtedness.
"Consolidated Senior Unsecured Indebtedness Interest Expense" means,
with respect to any Person for any period, the sum of, without duplication:
(1) the aggregate of the interest expense on Senior
Unsecured Indebtedness of such Person and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP,
including without limitation: (a) any amortization of debt discount; (b)
the net costs under Permitted Hedging Transactions; (c) all capitalized
interest; and (d) the interest portion of any deferred payment
obligation; and
(2) to the extent not already included in clause (1), the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Subsidiaries
during such period as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Subsidiary" means, with respect to any Person, a
Subsidiary of such Person, the financial statements of which are consolidated
with the financial statements of such Person in accordance with GAAP.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 or such other address as to which the Trustee
may give notice to the Company.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Subsidiary of the Company against fluctuations in currency
values.
"Custodian" means any custodian, receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
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"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.04 as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this First Supplemental Indenture.
"Disqualified Capital Stock" means that portion of any Capital Stock
that, by its terms (or by the terms of any Security into which it is convertible
or for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event (other than an event which would constitute a Change
of Control), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control) on or
prior to the final maturity date of the Notes.
"DTC" means The Depository Trust Company, its nominees and their
successors and assigns.
"Equity Offering" means an underwritten public offering of Qualified
Capital Stock of the Company pursuant to a registration statement filed with the
Commission in accordance with the Securities Act or a private placement of
Qualified Capital Stock of the Company generating gross proceeds of at least
$25.0 million.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, its successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Exchange Certificated Notes" means a note in definitive, fully
registered form, without coupons, substantially in the form of Exhibit E hereto.
"Exchange Global Notes" has the meaning set forth in Section 2.02(e).
"Exchange Notes" has the meaning set forth in the Recitals hereto.
"Exchange Offer" means the offer by the Company to exchange all of the
Initial Notes for Exchange Notes of the same series.
"Exchange Offer Registration Statement" has the meaning set forth in
Section 5.01.
"Exchange 2013 Notes" has the meaning set forth in the Recitals hereto.
"Existing Warehouse Facilities" mean: (1) the Master Repurchase
Agreement dated as of November 20, 2001, as amended November 14, 2002, between
UBS Warburg Real Estate Securities Inc. and TMHL; (2) the Master Loan and
Security Agreement dated as of November 20, 2001, as amended November 19, 2002,
between Greenwich Capital Financial Products, Inc. and TMHL; (3) the TMA
Mortgage Funding Trust II Collateralized Asset-Backed Notes, Series 2000-1 and
Master Repurchase Agreement dated as of December 1, 2000 and March 22, 2000,
respectively, as amended March 24, 2003 and February 28, 2003, respectively,
between Wachovia Bank National Association and TMHL and Xxxxxxxxx Mortgage
Acceptance Corp. II and Real Estate Asset Funding Corporation and Wilmington
Trust Company and Deutsche Bank National Trust Company and Ambac Assurance
Corporation; and (4) the Master Repurchase Agreement currently in its final
stages of negotiation, between CDC Mortgage Capital Inc. and TMHL, in each case,
together with the related documents thereto (including, without limitation, any
Security documents), in each case as such agreements may be amended (including
any
7
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings is
permitted by Section 4.09, 4.10 and 4.11 hereof) or adding Subsidiaries of the
Company as additional borrowers or guarantors thereunder) all or any portion of
the Indebtedness under such agreement or any successor or replacement agreement
and whether by the same or any other agent, lender or group of lenders.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"First Supplemental Indenture" means this First Supplemental Indenture
as amended or supplemented from time to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Global Notes" means, individually and collectively, the Initial
Restricted Global Notes, the Initial Regulation S Global Note and the Exchange
Global Note, in the form of the Exhibits hereto.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and for the payment of which the
United States pledges its full faith and credit.
"Guarantor" means each of the Company's Subsidiaries that in the future
executes a supplemental indenture in which such Subsidiary agrees to be bound by
the terms of this First Supplemental Indenture as a Guarantor; provided that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective guarantee is released in accordance with the terms
of this First Supplemental Indenture.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered.
"Indebtedness" means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
8
ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in respect
of Indebtedness referred to in clauses (1) through (5) above and clause
(8) below;
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) above which are Secured by any lien on any
property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the fair market value of such property or
asset and the amount of the Obligation so Secured;
(8) all Obligations under currency agreements and interest
swap agreements of such Person; and
(9) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this First Supplemental
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
"Indenture" means the Indenture, dated as of May 15, 2003 between the
Company and the Trustee as amended or supplemented from time to time.
"Independent Financial Advisor" means a firm: (1) that does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (2) that, in the judgment of the
Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Indirect Participant" means a Person who holds a beneficial interest in
a Global Note through a Participant.
"Initial Certificated Notes" means notes in definitive, fully registered
certificated form, without coupons, substantially in the form of Exhibit C
hereto, bearing the legends set forth in Section 2.08 hereof.
"Initial Global Notes" has the meaning set forth in Section 2.02(c).
"Initial Notes" means the $200.0 million principal amount of 8.00%
Senior Notes due 2013 of the Company issued on the Issue Date.
"Initial Purchaser" means Credit Suisse First Boston LLC.
9
"Initial Regulation S Global Note" means a single fully registered
global note in book-entry form, substantially in the form of Exhibit B attached
hereto.
"Initial Restricted Global Note" means a single fully registered global
note in book-entry form, substantially in the form of Exhibit A attached hereto.
"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"Interest Payment Date" means May 15 and November 15 of each year
commencing November 15, 2003.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee),
or corporate tenant lease to or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such Person of any Capital Stock, bonds, notes, debentures or other Securities
or evidences or Indebtedness issued by, any Person. "Investment" shall exclude
extensions of trade credit by the Company and any Subsidiary of the Company on
commercially reasonable terms in accordance with the Company's or its
Subsidiaries' normal trade practices, as the case may be.
"Investment Grade" means a rating of the Notes by both S&P and Xxxxx'x,
each such rating being one of such agency's four highest generic rating
categories that signifies investment grade (i.e. BBB- (or the equivalent) or
higher by S&P and Baa3 (or the equivalent) or higher by Moody's); provided, in
each case, such ratings are publicly available; provided, further, that in the
event Moody's or S&P is no longer in existence for purposes of determining
whether the Notes are rated "Investment Grade," such organization may be
replaced by a nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) designated by the Company, notice of which
shall be given to the Trustee.
"Issue Date" means May 15, 2003.
"Lien" means any lien, mortgage, deed of trust, pledge, Security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any Security interest).
"Maturity" when used with respect to the Notes means the date on which
the principal of the Notes becomes due and payable as therein provided or as
provided in this First Supplemental Indenture, whether at Stated Maturity or on
a redemption date or pursuant to a Change of Control Offer (as defined in
Section 4.15(a)), and whether by declaration of acceleration, call for
redemption, purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor rating
agency.
"NMI Equity" means the excess of the value of the assets collateralizing
Non-Marginable Indebtedness over the amount of Non-Marginable Indebtedness, as
reported in accordance with GAAP.
"Non-Marginable Indebtedness" means all Non-Recourse Indebtedness that
is secured by assets that are not subject to requirements that the borrower or
any third-party provide additional margin collateralization in the event of a
change in value of the assets.
10
"Non-Recourse Indebtedness" means any of the Company's or any of its
Subsidiaries' Indebtedness that is:
(1) specifically advanced to finance the acquisition of
investment assets and secured only by the assets to which such
Indebtedness relates without recourse to the Company or any of its
Subsidiaries (other than subject to such customary carve-out matters for
which the Company or its Subsidiaries acts as a guarantor in connection
with such Indebtedness, such as fraud, misappropriation and
misapplication, unless, until and for so long as a claim for payment or
performance has been made thereunder (which has not been satisfied) at
which time the obligations with respect to any such customary carve-out
shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Company for GAAP purposes);
(2) advanced to any of the Company's Subsidiaries or group
of its Subsidiaries formed for the sole purpose of acquiring or holding
investment assets, against which a loan is obtained that is made without
recourse to, and with no cross-collateralization against our or any of
the Company's Subsidiaries' other assets (other than: (A)
cross-collateralization against assets which serve as collateral for
other Non-Recourse Indebtedness; and (B) subject to such customary
carve-out matters for which the Company or its Subsidiaries acts as a
guarantor in connection with such Indebtedness, such as fraud,
misappropriation and misapplication, unless, until and for so long as a
claim for payment or performance has been made thereunder (which has not
been satisfied) at which time the obligations with respect to any such
customary carve-out shall not be considered Non-Recourse Indebtedness,
to the extent that such claim is a liability of the Company for GAAP
purposes) and upon complete or partial liquidation of which the loan
must be correspondingly completely or partially repaid, as the case may
be; or
(3) specifically advanced to finance the acquisition of real
property and secured by only the real property to which such
Indebtedness relates without recourse to the Company or any of its
Subsidiaries (other than subject to such customary carve-out matters for
which the Company or its Subsidiaries acts as a guarantor in connection
with such Indebtedness, such as fraud, misappropriation and
misapplication, unless, until and for so long as a claim for payment or
performance has been made thereunder (which has not been satisfied) at
which time the obligations with respect to any such customary carve-out
shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Company for GAAP purposes).
"Non-U.S. Person" means a Person that is not a U.S. Person as defined in
Regulation S, and includes dealers or other professional fiduciaries in the
United States acting on a discretionary basis for foreign beneficial owners
(other than an estate or trust) in offshore transactions meeting the
requirements of Rule 904 of Regulation S.
"Notes" means, collectively, the Initial Notes, the Exchange Notes and
the Additional Notes, if any, and treated as a single class of securities, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this First Supplemental Indenture.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnification, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the President, Chief
Executive Officer, any Vice President, Chief Operating Officer, Treasurer,
Secretary or the Chief Financial Officer of such Person.
11
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers of such Person; provided, however, that every Officers'
Certificate with respect to compliance with a covenant or condition provided for
in this First Supplemental Indenture shall include (i) a statement that the
Officers making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this First Supplemental
Indenture relating thereto and (ii) a statement as to whether, in the opinion of
the signers, such conditions have been complied with.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
12.05. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Other Comprehensive Income or Loss" shall mean the accumulated other
comprehensive income or loss of the Company and its Consolidated Subsidiaries as
determined in accordance with GAAP.
"Participant" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"Permitted Hedging Transactions" means entering into instruments and
contracts and making margin calls thereon, covering Indebtedness of the Company
or any of its Subsidiaries and of any Subsidiary covering Indebtedness of such
Subsidiary that are entered into to protect the Company and its Subsidiaries
from fluctuations in interest rates on Indebtedness incurred in accordance with
this First Supplemental Indenture; and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar instruments, "interest
only" mortgage derivative assets or other mortgage derivative products, future
contracts and options on futures contracts on the Eurodollar, Federal Funds,
Treasury bills and Treasury rates and similar financial instruments.
"Permitted Indebtedness" means, without duplication, each of the
following:
(1) Indebtedness under the Initial Notes;
(2) Indebtedness incurred pursuant to the Existing Warehouse
Facilities in an aggregate principal amount at any time outstanding not
to exceed the maximum amount available under each Existing Warehouse
Facility as in effect on the Issue Date reduced by any required
permanent repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder;
(3) Other Indebtedness of the Company and its Subsidiaries
outstanding on the Issue Date reduced by the amount of any scheduled
amortization payments or mandatory prepayments when actually paid or
permanent reductions thereon;
(4) Permitted Hedging Transactions of the Company covering
Indebtedness of the Company or any of its Subsidiaries and Permitted
Hedging Transactions of any Subsidiary of the Company covering
Indebtedness of such Subsidiary; provided, however, that such Permitted
Hedging Transactions are entered into to protect the Company and its
Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this First Supplemental Indenture to the
extent the notional principal amount of such Permitted Hedging
Transaction does not exceed the principal amount of the Indebtedness to
which such Permitted Hedging Transactions relate;
12
(5) Indebtedness under Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(6) Indebtedness of a Subsidiary of the Company to the
Company or to a Wholly Owned Subsidiary of the Company for so long as
such Indebtedness is held by the Company or a Wholly Owned Subsidiary of
the Company;
(7) Indebtedness of the Company to a Wholly Owned Subsidiary
of the Company for so long as such Indebtedness is held by a Wholly
Owned Subsidiary of the Company, in each case subject to no Lien;
provided that: (a) any Indebtedness of the Company to any Wholly Owned
Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this First
Supplemental Indenture and the Notes; and (b) if as of any date any
Person other than a Wholly Owned Subsidiary of the Company owns or holds
any such Indebtedness or any Person holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness by the Company;
(8) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business days
of incurrence;
(9) Indebtedness of the Company or any of its Subsidiaries
represented by letters of credit for the account of the Company or such
Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(10) Indebtedness incurred pursuant to Principal and Interest
Facilities in an aggregate principal amount at any time outstanding not
to exceed the maximum amount available under each Principal and Interest
Facility as in effect on the Issue Date reduced by any required
permanent repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder;
(11) Refinancing Indebtedness; and
(12) Additional Indebtedness of the Company and its
Subsidiaries in an aggregate principal amount not to exceed $15.0
million at any one time outstanding.
For purposes of determining compliance with Section 4.09, 4.10 and 4.11
hereof, in the event that an item of Senior Unsecured Indebtedness or
Indebtedness, as the case may be, meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (1) through (12) above
or is entitled to be incurred pursuant to the second paragraph of each such
covenant, the Company shall, in its sole discretion, classify (or later
reclassify) such item of Senior Unsecured Indebtedness or Indebtedness, as the
case may be, in any manner that complies with this covenant. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Senior Unsecured Indebtedness or Indebtedness, as the case may
be, in the form of additional Senior Unsecured Indebtedness or Indebtedness, as
the case may be, with the same terms, and the payment of dividends on
Disqualified Capital Stock in the form of additional shares of the same class of
Disqualified Capital Stock will not be
13
deemed to be an incurrence of Senior Unsecured Indebtedness or Indebtedness, as
the case may be, or an issuance of Disqualified Capital Stock for purposes of
the "Limitations on Incurrence of Additional Senior Unsecured Indebtedness,"
"Limitation Based Upon Total Unencumbered Assets," and "Limitation on Incurrence
of Additional Consolidated Indebtedness" covenants.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or
claims either: (a) not delinquent; or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(2) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(4) Judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(5) Easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(6) Any interest or title of a lessor under any Capitalized
Lease Obligation; provided that such Liens do not extend to any property
or assets which is not leased property subject to such Capitalized Lease
Obligation;
(7) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(8) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(9) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Subsidiaries, including rights
of offset and set-off;
14
(10) Liens securing Permitted Hedging Transactions and the
costs thereof, which Permitted Hedging Transactions relate to
Indebtedness that is otherwise permitted under this First Supplemental
Indenture; and
(11) Liens securing Indebtedness under Currency Agreements.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Principal and Interest Facilities" means any principal and interest
facilities in aggregate borrowing capacity amount at any one time of up to $50
million, together with the related documents thereto (including, without
limitation, any security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Purchase Agreement" means the Purchase Agreement dated May 8, 2003
between the Company and the Initial Purchaser.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
Subsidiary of the Company of Senior Unsecured Indebtedness incurred in
accordance with Section 4.09, 4.10 and 4.11 hereof (other than pursuant to
clauses (2), (4), (5), (6), (7), (8), (9), (10) or (12) of the definition of
Permitted Indebtedness), and in each case that does not:
(1) result in an increase in the aggregate principal amount
of Senior Unsecured Indebtedness or Indebtedness, as the case may be, of
such Person as of the date of such proposed Refinancing (plus the amount
of any premium required to be paid under the terms of the instrument
governing such Senior Unsecured Indebtedness or Indebtedness, as the
case may be, and plus the amount of reasonable expenses incurred by the
Company in connection with such Refinancing); or
(2) create Senior Unsecured Indebtedness or Indebtedness, as
the case may be, with: (a) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Senior Unsecured
Indebtedness or Indebtedness being Refinanced; or (b) a final maturity
earlier than the final maturity of the Senior Unsecured Indebtedness or
Indebtedness being Refinanced; provided that (i) if such Senior
Unsecured Indebtedness or Indebtedness being Refinanced is Senior
Unsecured Indebtedness or Indebtedness, as the case may be, of the
Company, then such Refinancing Indebtedness shall be Senior Unsecured
Indebtedness or
15
Indebtedness, as the case may be, solely of the Company, and (ii) if
such Senior Unsecured Indebtedness or Indebtedness being Refinanced is
subordinate or junior to the Notes, then such Refinancing Indebtedness
shall be subordinate to the Notes at least to the same extent and in the
same manner as the Senior Unsecured Indebtedness or Indebtedness being
Refinanced.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated May 15, 2003, between the Company and the Initial Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"REIT" means Real Estate Investment Trust.
"Responsible Officer" means, when used with respect to the Trustee, any
managing director, director, principal, vice president, assistant vice
president, assistant treasurer, associate or any other officer within the
corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge and familiarity
with the particular subject.
"Rule 144A" means Rule 144A under the Securities Act.
"Secured Indebtedness" means any Indebtedness secured by a Lien upon the
property of the Company or any of its Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Senior Unsecured Indebtedness" means all Indebtedness of the Company
and its Subsidiaries other than (1) Indebtedness that is secured by a Lien on
property or assets of the Company or its Subsidiaries and (2) Subordinated
Indebtedness.
"Shelf Registration Statement" has the meaning set forth in Section
5.02.
"Significant Subsidiary," with respect to any Person, means any
Subsidiary of such Person that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.
"S&P" means Standard & Poor's Ratings Service, a division of McGraw Hill
Inc., a New York corporation, or any successor rating agency.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon means the dates specified in such Indebtedness
as the fixed date on which the principal of or premiums on such Indebtedness or
such installment of interest is due and payable.
"Subordinated Indebtedness" means all of the Company's and its
Subsidiaries' Indebtedness that expressly provides that such Indebtedness shall
be subordinated in right of payment to any other Indebtedness and matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof (except, in each case, upon
the occurrence of a Change of Control) on or after the final maturity date of
the Notes.
"Subsidiary," with respect to any Person, means:
16
(1) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TMHL" means Xxxxxxxxx Mortgage Home Loans, Inc., a Delaware
corporation.
"Total Unencumbered Assets" as of any date means all assets (but
excluding intangibles and accounts receivable other than principal and interest
receivables on ARM assets) of the Company and its Subsidiaries not securing any
portion of secured Indebtedness determined on a consolidated basis in accordance
with GAAP.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this First Supplemental
Indenture and thereafter means the successor serving hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Unsecured Indebtedness" means any Indebtedness of the Company or any of
its subsidiaries that is not Secured Indebtedness.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (1) the then
outstanding aggregate principal amount of such Indebtedness into; (2) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting Securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
"2013 Notes" has the meaning set forth in the Recitals hereto.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction"............................ 4.12
"Authentication Order"............................. 2.03
"Change of Control Date"........................... 4.15
"Change of Control Payment Date"................... 4.15
"Change of Control Offer".......................... 4.15
"Change of Control Purchase Date".................. 4.15
"Change of Control Purchase Price"................. 4.15
"Covenant Defeasance".............................. 9.03
17
"Event of Default"................................. 7.01
"incur"............................................ 4.09
"Legal Defeasance"................................. 9.02
"Paying Agent"..................................... 2.04
"Registrar"........................................ 2.04
"Redemption Date".................................. 3.07
"Restricted Payment"............................... 4.07
"Surviving Entity"................................. 6.01
Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this
First Supplemental Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this First Supplemental
Indenture.
All terms used in this First Supplemental Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by rule of the
Commission under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the Commission from time to time.
ARTICLE II
THE NOTES
Section 2.01. Creation of the Notes.
(a) Initial Notes. In accordance with Section 2.01 of the Original
Indenture, the Company hereby creates the Initial Notes as a separate series of
its securities issued pursuant to the Indenture. The Initial Notes shall be
issued initially in an aggregate principal amount of $200,000,000.
(b) Exchange Notes. In accordance with Section 2.01 of the Original
Indenture, the Company hereby creates the Exchange Notes as a separate series of
its securities issued pursuant to the Indenture. The Exchange Notes are to be
issued in exchange for the Initial Notes as provided in this First Supplemental
Indenture and the Registration Rights Agreement. The Exchange Notes may be
issued initially in an aggregate principal amount of up to the principal amount
of the Initial Notes tendered in exchange therefor in an Exchange Offer.
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Section 2.02. Form and Dating.
(a) The Initial Notes shall be in the form of Exhibit A or Exhibit B
hereto, as applicable, and the Exchange Notes shall be in the form of Exhibit D
or Exhibit E hereto, as applicable.
(b) Initial Notes offered and sold to "qualified institutional buyers"
(as defined in Rule 144A) in reliance on Rule 144A as provided in the Purchase
Agreement shall be issued in book-entry form and shall be represented by a
single, permanent global note in fully registered form, without coupons,
substantially in the form of Exhibit A hereto and shall bear the legends set
forth in Section 2.08(a) and (b) (the "Initial Restricted Global Note"). Upon
issuance, the Initial Restricted Global Note shall be registered in the name of
"Cede & Co.," as nominee of DTC, duly executed by the Company and authenticated
by the Trustee and deposited with or on behalf of DTC.
(c) Initial Notes offered and sold to Non-U.S. Persons in reliance on
Regulation S as provided in the Purchase Agreement shall be issued in book-entry
form and shall be represented by a single, permanent global note in definitive,
fully registered form, without coupons, substantially in the form of Exhibit B
hereto and shall bear the legends set forth in Section 2.08(a) and (b) (the
"Initial Regulation S Global Note," and together with the Initial Restricted
Global Note," the "Initial Global Notes"). Upon issuance, the Initial Regulation
S Global Note shall be registered in the name of "Cede & Co.," as nominee for
DTC, duly executed by the Company and authenticated by the Trustee and deposited
with or on behalf of DTC for the accounts of Euroclear or Clearstream Banking.
Interests in the Initial Regulation S Global Note may only be held through
Euroclear or Clearstream Banking.
(d) [intentionally left blank]
(e) In the event all or a portion of the Initial Notes of any series are
tendered in an Exchange Offer, such Notes or the portions thereof being
exchanged shall be exchanged for a single, permanent global note in definitive,
fully registered form, without coupons, substantially in the form of Exhibit D
hereto (the "Exchange Global Notes") and shall bear the legends set forth in
Section 2.08(c) hereof. Upon issuance, each Exchange Global Note shall be
registered in the name of "Cede & Co.," as nominee of DTC, duly executed by the
Company and authenticated by the Trustee and deposited with or on behalf of DTC.
Except as provided in Section 2.07(b), Exchange Certificated Notes shall not be
issued and the Company waives any discretionary right it may otherwise have to
cause the Notes to be issued in certificated form.
Section 2.03. Execution and Authentication. Two Officers shall sign the Notes
for the Company by manual or facsimile signature. The Company's seal will be
reproduced on the Notes.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this First Supplemental Indenture.
The Trustee shall, upon a written order of the Company signed by one or
more Officers (an "Authentication Order"), authenticate Notes for original issue
on the Issue Date in aggregate principal amount not to exceed $200,000,000
(other than as provided in Section 2.09). The Trustee shall authenticate
Additional Notes thereafter (so long as permitted by the terms of this First
Supplemental Indenture) for original issue upon one or more Authentication
Orders in aggregate principal amount as specified in such order (other than as
provided in Section 2.09). Each such Authentication Order shall specify the
amount of Notes to be authenticated, whether the Notes are to be Initial Notes,
Additional Notes or Exchange Notes and whether the Notes are to be issued as
definitive notes or Global Notes or such other information as the Trustee shall
reasonably request.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this First Supplemental
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.04. Registrar and Paying Agent. The Company shall maintain an office
or agency where Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this First Supplemental Indenture.
If the Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints DTC to act as Depositary with respect to
the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.05. Paying Agent to Hold Money in Trust. The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or
interest on the Notes, and will notify the Trustee in writing of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.06. Holder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders and the Company shall otherwise comply with TIA Section 312(a).
Section 2.07. Transfer and Exchange.
(a) By its acceptance of any Initial Note represented by a certificate
bearing the legend set forth in Section 2.08(a) hereof (the "Private Placement
Legend"), each Holder of, and beneficial bearer of an interest in, such Initial
Note acknowledges the restrictions on transfer of such Initial Note and agrees
that it shall transfer such Initial Note only in accordance with such
restrictions. Each purchaser (other than the Initial Purchaser) of the Notes and
each Person to whom the Notes are transferred shall, prior to the Resale
Restriction Termination Date (as defined in the Private Placement Legend), be
deemed to have acknowledged, represented and agreed to the matters and
restrictions on transfer described under the heading "Notice to Investors" in
the Confidential Offering Circular of the Company, dated May 8, 2003,
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relating to the Initial Notes. Upon the registration of transfer, exchange or
replacement of an Initial Note not bearing the Private Placement Legend, the
Trustee shall deliver an Initial Note or Initial Notes that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of an Initial Note bearing the Private Placement Legend, the Trustee
shall deliver an Initial Note or Initial Notes bearing the Private Placement
Legend, unless such legend may be removed from such Note as provided in this
Section 2.07. If the Private Placement Legend has been removed from an Initial
Note, as provided herein, no other Initial Note issued in exchange for all or
any part of such Initial Note shall bear such legend, unless the Company has
reasonable cause to believe that such other Initial Note represents a
"restricted security" within the meaning of Rule 144 under the Securities Act
and instructs the Trustee in writing to cause a legend to appear thereon. Each
Initial Note shall bear the Private Placement Legend unless and until:
(1) a transfer of such Initial Note is made pursuant to an
effective Shelf Registration Statement, in which case the Private
Placement Legend shall be removed from such Initial Note so transferred
at the request of the Holder; or
(2) there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel licensed
to practice law in the State of New York, as may reasonably be requested
by the Company confirming that neither such legend nor the restrictions
on transfer set forth therein are required to ensure that transfers of
such Initial Note shall not violate the registration and prospectus
delivery requirements of the Securities Act; provided, that the Trustee
shall not be required to determine but may rely on a determination made
by the Company with respect to the sufficiency of any such evidence; and
upon written direction of the Company, the Trustee shall authenticate
and deliver in exchange for such Initial Note, an Initial Note or
Initial Notes representing the same aggregate principal amount of the
Initial Note being exchanged) without such legend.
(b) The Initial Global Note or Exchange Global Note, as the case may be,
shall be exchanged by the Company for one or more Initial Certificated Notes or
Exchange Certificated Notes, as applicable, if (i) DTC (1) has notified the
Company that it is unwilling or unable to continue as, or ceases to be, a
clearing agency registered under Section 17A of the Exchange Act and (2) a
successor to DTC registered as a clearing agency under Section 17A of the
Exchange Act is not able to be appointed by the Company within 90 calendar days
or (ii) DTC is at any time unwilling or unable to continue as depositary and the
Company is not able to appoint a successor to DTC within 90 calendar days. If an
Event of Default occurs and is continuing, the Company shall, at the request of
the Trustee or the Holder thereof, exchange all or part of the Initial Global
Note or Exchange Global Note, as the case may be, for one or more Initial
Certificated Notes or Exchange Certificated Notes, as applicable. Whenever a
Global Note is exchanged for one or more Initial Certificated Notes or Exchange
Certificated Notes, as the case may be, it shall be surrendered by the Holder
thereof to the Trustee and cancelled by the Trustee. All Initial Certificated
Notes or Exchange Certificated Notes issued in exchange for a Global Note or a
portion thereof shall be registered in such names, and delivered, as DTC shall
instruct the Trustee. Any Initial Certificated Notes issued pursuant to this
Section 2.07 shall include the Private Placement Legend, except as set forth in
Section 2.07(a) hereof.
(c) Any Initial Notes that are presented to the Trustee for exchange
pursuant to an Exchange Offer shall be exchanged for Exchange Notes of equal
principal amount upon surrender to the Trustee in accordance with the terms of
the Exchange Offer. Whenever any Initial Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver to the
surrendering Holder thereof, Exchange Notes in the same aggregate principal
amount as the Initial Notes so surrendered.
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(d) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by such Holder (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in book-entry form. Transfers of a
Global Note shall be limited to transfers in whole and not in part, to DTC, its
successors and their respective nominees. Interests of beneficial owners in a
Global Note shall be transferred in accordance with the rules and procedures of
DTC (or its successors).
Section 2.08. Legends. The following legends shall appear on the Notes.
(a) Except as provided in Section 2.08(b) hereof, each Initial Note
shall bear the following legends on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $1,000 ($100,000 FOR INSTITUTIONAL ACCREDITED
INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (a)
TO THE COMPANY OR THE INITIAL PURCHASER OR BY, THROUGH OR IN A TRANSACTION
APPROVED BY, THE INITIAL PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO AN INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
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APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
(b) In addition to the legends set forth in Section 2.08(a), each
Initial Global Note shall also bear the following legends on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
(c) The Exchange Global Note shall bear the following legends on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
Section 2.09. Replacement Notes. If any mutilated Note is surrendered to the
Trustee or the Company and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the
23
Company shall issue and the Trustee, upon receipt of an Authentication Order,
shall authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this First Supplemental Indenture
equally and proportionately with all other Notes duly issued hereunder.
Section 2.10. Outstanding Notes. The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.11 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.09 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.11. Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, or by any Affiliate of the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee actually knows are so
owned shall be so disregarded.
Section 2.12. Temporary Notes. Until certificates representing Notes are ready
for delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this First Supplemental Indenture.
Section 2.13. Cancellation. The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes (subject to the record retention requirement of the
Exchange Act). The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
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Section 2.14. Defaulted Interest. If the Company defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date; provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.15. Record Date. The Company may set a record date for purposes of
determining the identity of Holders entitled to vote or to consent to any action
by vote or consent authorized or permitted by Sections 7.04 and 7.05.
Section 2.16. CUSIP Numbers. The Company in issuing the Notes may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or the omission of such numbers. The Company will promptly notify
the Trustee in writing of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee. If the Company elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 45 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth (i) the clause of this
First Supplemental Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Notes to be redeemed, (iv)
the redemption price and (v) the CUSIP numbers of the Notes to be redeemed.
Section 3.02. Selection of Notes to Be Redeemed. In the event that the Company
chooses to redeem less than all of the Notes, selection of the Notes for
redemption will be made by the Trustee either:
(1) in compliance with the requirements of the principal
national Securities exchange, if any, on which the Notes are listed; or
(2) on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate.
No Notes of a principal amount of $1,000 or less shall be redeemed in
part. If a partial redemption is made with the proceeds of an Equity Offering
(as defined in Section 3.07(b)), the Trustee will select the Notes only on a pro
rata basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures).
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.
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Notes and portions of Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this First Supplemental Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption. At least 30 days but not more than 60 days
before a redemption date, the Company shall mail or cause to be mailed, by first
class mail (at its own expense), a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed, including the CUSIP
numbers, and shall state:
(a) the redemption date;
(b) the redemption price and the amount of accrued and unpaid interest,
if any, to be paid;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Notes and/or section of this First Supplemental
Indenture pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have provided to the Trustee, at least 45 days prior to the
redemption date (unless a shorter notice shall be satisfactory to the Trustee),
the information required by clauses (a) through (h) above.
Section 3.04. Effect of Notice of Redemption. Once notice of redemption is
mailed in accordance with Section 3.03 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the redemption
price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price. One Business Day prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date and any amounts owed the Trustee. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed and any amounts owed the Trustee.
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If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue and, upon the Company's written
request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
Section 3.07. (a) Optional Redemption. At any time on or after May 15, 2008,
the Notes may be redeemed or purchased in whole or in part at the Company's
option at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the date
of redemption or purchase (the "Redemption Date") (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury securities for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the period from such Redemption Date to May 15, 2013
is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
(b) Optional Redemption Upon Equity Offerings. At any time, or from time
to time, on or prior to May 15, 2006, the Company may, at its option, use the
net cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under this First Supplemental Indenture at
a redemption price of 108% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
this First Supplemental Indenture remains outstanding immediately after
any such redemption; and
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(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
Other than as specifically provided in this Section 3.07, any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption. The Company shall not be required to make
mandatory redemption payments with respect to the Notes prior to Maturity.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes. The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency. The Company shall maintain in
the Borough of Manhattan, the City of New York, an office or agency (which may
be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the
Notes and this First Supplemental Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.04.
Section 4.03. Reports to Holders. Whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company
shall furnish the Holders of Notes:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file
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such Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" that describes the
financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the
face of the financial statements or in the footnotes thereto and in
Management's Discussion and Analysis of Financial Condition and Results
of Operations, the financial condition and results of operations of the
Company and its Subsidiaries separate from the financial condition and
results of operations of the Subsidiaries of the Company, if any) and,
with respect to the annual information only, a report thereon by the
Company's certified independent accountants; and
(2) all current reports that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports, in each case within the time periods specified in the
Commission's rules and regulations.
In addition, whether or not required by the rules and regulations of the
Commission, the Company shall file a copy of all such information and reports
with the Commission for public availability within the time periods specified in
the Commission's rules and regulations (unless the Commission will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company has agreed that,
for so long as any Notes remain outstanding, it will furnish to the Holders and
to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled
their obligations under this First Supplemental Indenture, and further stating,
as to each such Officer signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this First Supplemental Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this First Supplemental Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05. Taxes. The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders.
Section 4.06. Stay, Extension and Usury Laws. The Company covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time
29
hereafter in force, that may affect the covenants or the performance of this
First Supplemental Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Limitation on Restricted Payments. The Company shall not, and
shall not cause or permit any of its Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution (other
than dividends or distributions payable in Qualified Capital Stock of
the Company) on or in respect of shares of the Company's Capital Stock
to holders of such Capital Stock;
(2) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock; or
(3) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company that is subordinate or junior
in right of payment to the Notes
if at the time of such action (each, a "Restricted Payment") or
immediately after giving effect thereto,
(i) a Default or an Event of Default shall have
occurred and be continuing; or
(ii) the Company is not able to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Sections 4.09, 4.10 and 4.11 hereof; or
(iii) the aggregate amount of Restricted Payments
(including such proposed Restricted Payment) made subsequent to
the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as
determined in good faith by the Board of Directors of the
Company) shall exceed the sum of:
(w) $47.1 million (which amount represents the
Company's undistributed taxable income as of
March 31, 2003); plus
(x) 95% of the cumulative Adjusted Earnings (or if
the cumulative Adjusted Earnings shall be a
loss, minus 100% of such loss) of the Company,
less any dividends on Preferred Stock of the
Company paid or accrued, from and after March
31, 2003 and on or prior to the date the
Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting
period); plus
(y) 100% of the aggregate net cash proceeds received
by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and
sale subsequent to the Issue Date and on or
prior to the Reference Date of Qualified Capital
Stock of the Company; plus
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(z) without duplication of any amounts included in
clause (iii)(y) above, 100% of the aggregate net
cash proceeds of any equity contribution
received by the Company from a holder of the
Company's Capital Stock (excluding, in the case
of clauses (iii)(y) and (z), any net cash
proceeds from an Equity Offering to the extent
used to redeem the Notes in compliance with the
provisions set forth under Section 3.07(b)
hereof.
The foregoing provisions do not prohibit:
(1) the payment of any dividend within 60 days after the
date of declaration of such dividend if the dividend would have been
permitted on the date of declaration;
(2) if no Default or Event of Default shall have occurred
and be continuing, the acquisition of any shares of Capital Stock of the
Company, either (i) solely in exchange for shares of Qualified Capital
Stock of the Company or (ii) through the application of net proceeds of
a substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company;
(3) so long as no Default or Event of Default shall have
occurred and be continuing, repurchases by the Company of Common Stock
of the Company from employees of the Company or any of its Subsidiaries
or their authorized representatives upon the death, disability or
termination of employment of such employees, in an aggregate amount not
to exceed $500,000 in any calendar year;
(4) the declaration or payment by the Company of any
dividend or distribution that is necessary to maintain its status as a
REIT under the Code if:
(a) the dividend or distribution does not exceed
100% of the Consolidated Net Income for the fiscal quarter
preceding the declaration and payment date; and
(b) no Default or Event of Default shall have
occurred and be continuing;
(5) the payment of any dividend on Preferred Stock of the
Company; and
(6) Restricted Payments in an amount not to exceed $50.0
million.
In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (iii) above, amounts
expended pursuant to clauses (1), (2) (ii), (3), (4) and (6) shall be included
in such calculation.
Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in
respect of its Capital Stock to the Company;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Subsidiary of the Company;
or
31
(3) transfer any of its property or assets to the Company or any
other Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of:
(a) applicable law;
(b) this First Supplemental Indenture;
(c) customary non-assignment provisions of any contract
or any lease governing a leasehold interest of any Subsidiary of
the Company;
(d) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so
acquired;
(e) agreements existing on the Issue Date to the extent
and in the manner such agreements are in effect on the Issue
Date;
(f) provisions of any agreement governing Indebtedness
incurred in accordance with this First Supplemental Indenture
that impose such encumbrances or restrictions upon the
occurrence of a default or failure to meet financial covenants
or conditions under the agreement;
(g) restrictions on the transfer of assets (other than
cash) held in a Subsidiary of the Company imposed under any
agreement governing Indebtedness incurred in accordance with
this First Supplemental Indenture;
(h) provisions of any agreement governing Indebtedness
incurred in accordance with this First Supplemental Indenture
that require a Subsidiary to service its debt obligations before
making dividends, distributions or advancements in respect of
its Capital Stock;
(i) an agreement governing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred pursuant
to an agreement referred to in clause (b), (d) or (e) above;
provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness
are not materially less favorable to the Company as determined
by the Board of Directors of the Company in their reasonable and
good faith judgment than the provisions relating to such
encumbrance or restriction contained in agreements referred to
in such clause (b), (d) or (e).
Section 4.09. Limitation on Incurrence of Additional Senior Unsecured
Indebtedness. The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, "incur") any Senior Unsecured Indebtedness (including,
without limitation, Acquired Indebtedness) other than Permitted Indebtedness.
Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Senior Unsecured Indebtedness, the Company or any of its
Subsidiaries may incur Senior Unsecured Indebtedness (including, without
limitation, Acquired Indebtedness), in each case if on the date of the
incurrence of such Senior Unsecured Indebtedness, after giving effect to the
incurrence thereof and the use of proceeds thereof:
32
. the Consolidated Senior Unsecured Indebtedness Interest Coverage
Ratio of the Company is greater than 3.0 to 1.0; and
. the ratio of the aggregate amount of Senior Unsecured
Indebtedness outstanding to the Company's Consolidated Adjusted
Tangible Net Worth is less than 0.25 to 1.0.
Section 4.10. Limitation on Incurrence of Additional Consolidated
Indebtedness. The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, incur any Indebtedness (including, without
limitation, Acquired Indebtedness) other than Permitted Indebtedness.
Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any of its Subsidiaries may
incur Indebtedness (including, without limitation, Acquired Indebtedness), in
each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof and the use of proceeds thereof:
. the ratio of Adjusted Debt to Adjusted Net Worth is less than 12
to 1.
Section 4.11. Limitation Based Upon Total Unencumbered Assets. If the Total
Unencumbered Assets of the Company and its Consolidated Subsidiaries is less
than 125% of the aggregate principal amount of the Unsecured Indebtedness of the
Company and its Consolidated Subsidiaries, in each case as of the last day of
any fiscal quarter of the Company during the term of the Notes (the "Quarter End
Date"), then from and after the Quarter End Date until such time as the Total
Unencumbered Assets of the Company and its Consolidated Subsidiaries is at least
125% of the aggregate principal amount of the Unsecured Indebtedness of the
Company and its Consolidated Subsidiaries, the Company will maintain a ratio of
Adjusted Debt to Adjusted Net Worth, that is no higher than the calculation of
such ratio at the Quarter End Date.
Section 4.12. Limitations on Transactions with Affiliates. The Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the
benefit of, any of its Affiliates (each an "Affiliate Transaction"), other than:
(1) Affiliate Transactions permitted as described below; and (2) Affiliate
Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate of the Company or such
Subsidiary.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of $5.0 million
shall be approved by the Board of Directors of the Company or such Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $10.0 million, the Company or such Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness
of such transaction or series of related transactions to the Company or the
relevant Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
33
The restrictions set forth in the first paragraph of this Section 4.12
shall not apply to:
(1) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of
the Company or any Subsidiary of the Company as determined in good faith
by the Company's Board of Directors or senior management;
(2) transactions exclusively between or among the Company and
any of its Subsidiaries or exclusively between or among such
Subsidiaries in the ordinary course of business, provided such
transactions are not otherwise prohibited by this First Supplemental
Indenture;
(3) transactions between the Company or one of its Subsidiaries
and any Person in which the Company or one of its Subsidiaries has made
an Investment in the ordinary course of the Company's real estate
lending business and such Person is an Affiliate solely because of such
Investment;
(4) transactions between the Company or one of its Subsidiaries
and any Person in which the Company or one of its Subsidiaries holds an
interest as a joint venture partner and such Person is an Affiliate
solely because of such interest;
(5) any agreement as in effect as of the Issue Date, including
the Management Agreements between the Company and the Manager and
between TMHL and the Manager or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in
any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue
Date;
(6) Restricted Payments permitted by Section 4.07; and
(7) agreements with and rights of Affiliates under the Company's
2002 Long-Term Incentive Plan or any predecessor or successor incentive
compensation or employee benefits plan; and any mortgage loans
outstanding or hereinafter entered into by and between the Company and
an Affiliate under the Company's employee residential mortgage loan
program.
Section 4.13. Limitation on Liens. The Company shall not, and shall not cause
or permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind on the assets of the
Company securing Indebtedness of the Company unless:
(1) in the case of Liens securing Indebtedness of the
Company that is expressly subordinate or junior in right of payment to
the Notes, the Notes are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably
secured except for:
(a) Liens existing as of the Issue Date to the
extent and in the manner such Liens are in effect on the Issue
Date;
(b) Liens securing the Notes;
(c) Liens securing reverse repurchase agreement
indebtedness and Non-Recourse Indebtedness;
34
(d) Liens securing Refinancing Indebtedness that is
incurred to Refinance any Indebtedness that has been secured by
a Lien permitted under this First Supplemental Indenture and
that has been incurred in accordance with the provisions of this
First Supplemental Indenture; provided, however, that such
Liens: (i) are no less favorable to the Holders than the Liens
in respect of the Indebtedness being Refinanced; and (ii) do not
extend to or cover any property or assets of the Company not
securing the Indebtedness so Refinanced; and
(e) Permitted Liens.
Section 4.14. Corporate Existence. Subject to Article 6 hereof, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control (the date of such
occurrence, the "Change of Control Date"), each Holder shall have the right to
require the Company to purchase such Holder's Notes in whole or in part in
integral multiples of $1,000 at a purchase price (the "Change of Control
Purchase Price") in cash equal to 101% of the principal amount of such Notes,
plus accrued and unpaid interest, if any, at the date of purchase (the "Change
of Control Purchase Date"), pursuant to and in accordance with the offer
described in this Section 4.15 (the "Change of Control Offer").
(b) Within 30 days following the Change of Control Date the Company
shall send, by first class mail, a notice to the Holders and the Trustee
stating:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.15 and that all Notes validly tendered will be
accepted for payment;
(ii) the Change of Control Purchase Price and the Change of
Control Purchase Date, which shall be a Business Day that is no earlier
than 30 days nor later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date") other than as may be required by
law;
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that any Note accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date unless the Company shall default in the payment
of the Change of Control Purchase Price of the Notes and the only
remaining right of the Holder is to receive payment of the Change of
Control Purchase Price upon surrender of the applicable Note to the
Paying Agent;
(v) that Holders electing to have a portion of a Note
purchased pursuant to a Change of Control Offer may only elect to have
such Note purchased in integral multiples of $1,000;
35
(vi) that if a Holder elects to have a Note purchased
pursuant to the Change of Control Offer it will be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Note completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day prior to the Change of
Control Payment Date;
(vii) that a Holder will be entitled to withdraw its election
if the Company receives, not later than the third Business Day preceding
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Notes such Holder delivered for purchase, and a
statement that such Holder is withdrawing its election to have such Note
purchased; and
(viii) that if Notes are purchased only in part a new Note of
the same type will be issued in principal amount equal to the
unpurchased portion of the Notes surrendered.
(c) On or before the Change of Control Payment Date, the Company shall,
to the extent lawful, accept for payment, all Notes or portions thereof validly
tendered pursuant to the Change of Control Offer, and shall deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.15. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof.
(d) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an offer hereunder. To the extent the provisions
of any securities laws or regulations conflict with the provisions under this
Section 4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
Section 4.16. Limitation on Preferred Stock of Subsidiaries. The Company shall
not permit any of its Subsidiaries to issue any Preferred Stock (other than to
the Company or to a Wholly Owned Subsidiary of the Company) or permit any Person
(other than the Company or a Wholly Owned Subsidiary of the Company) to own any
Preferred Stock of any Subsidiary of the Company, other than Preferred Stock
outstanding on the Issue Date of Subsidiaries formed to facilitate maintaining
the Company's REIT status.
Section 4.17. Conduct of Business. The Company and its Subsidiaries shall
engage primarily in the business of acquiring and originating adjustable rate
mortgages and assets comprised of adjustable rate mortgage securities and other
activities related to or arising out of those activities.
Section 4.18. Limitation of Guarantees by Subsidiaries. The Company shall not
permit any of its Subsidiaries, directly or indirectly, by way of the pledge of
any intercompany note or otherwise, to assume, guarantee or in any other manner
become liable with respect to any Indebtedness of the Company, unless, in any
such case:
(1) such Subsidiary executes and delivers a supplemental
indenture to this First Supplemental Indenture, providing a guarantee of
payment of the Notes by such Subsidiary; and
36
(2) if such assumption, guarantee or other liability of such
Subsidiary is provided in respect of Indebtedness that is expressly
subordinated to the Notes, the guarantee or other instrument provided by
such Subsidiary in respect of such subordinated Indebtedness shall be
subordinated to the Guarantee pursuant to subordination provisions no
less favorable to the Holders of the Notes than those contained in this
First Supplemental Indenture.
Notwithstanding the foregoing, any such Guarantee by a Subsidiary of the
Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon:
(1) the unconditional release of such Subsidiary from its
liability in respect of the Indebtedness in connection with which such
Guarantee was executed and delivered pursuant to the preceding
paragraph; or
(2) any sale or other disposition (by merger or otherwise)
to any Person that is not a Subsidiary of the Company of all of the
Company's Capital Stock in, or all or substantially all of the assets
of, such Subsidiary; provided that: (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms of
this First Supplemental Indenture; and (b) such assumption, guarantee or
other liability of such Subsidiary has been released by the holders of
the other Indebtedness so guaranteed.
Section 4.19. Termination of Certain Covenants In Event of Investment Grade
Rating. In the event that each of the Rating Categories assigned to the Notes by
the Rating Agencies is Investment Grade, the obligations under the covenants
contained in Sections 4.07, 4.08, 4.11, 4.12, 4.13, 4.16, 4.17 and 4.18 hereof
shall cease to apply to the Company in the event, and only for so long as, the
Notes are rated Investment Grade and no Default or Event of Default has occurred
and is continuing.
Section 4.20. Maintenance of Properties; Books and Records; Compliance
with Law.
(a) The Company shall and shall cause each of its Subsidiaries to at all
times cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment, and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereto; provided that nothing in this Section 4.20 shall prevent
the Company or any of its Subsidiaries from discontinuing the operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is either (i) in the ordinary course of business,
(ii) in the reasonable and good faith judgment of the Board of Directors or
management of the Company or the Subsidiary concerned, as the case may be,
desirable in the conduct of the business of the Company or such Subsidiary, as
the case may be, or (iii) otherwise permitted by this First Supplemental
Indenture.
(b) The Company shall and shall cause each of its Subsidiaries to keep
proper and true books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Company and each of its Subsidiaries, and reflect on its financial statements
adequate accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to the Company and its Subsidiaries taken as a whole.
(c) The Company shall and shall cause each of its Subsidiaries to comply
in all material respects with all statutes, laws, ordinances, or government
rules and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole.
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ARTICLE V
EXCHANGE OFFER; REGISTRATION RIGHTS AGREEMENT
Section 5.01. The Company and the Initial Purchaser will enter into the
Registration Rights Agreement prior to or concurrently with the issuance of the
Notes whereby the Company will agree to (i) file with the Commission on or prior
to 45 days after the Issue Date, a registration statement (the "Exchange Offer
Registration Statement") relating to a registered exchange offer (the "Exchange
Offer") for the Notes under the Securities Act; (ii) use its best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the Securities Act within 140 days after the Issue Date; (iii) use its best
efforts to keep the Exchange Offer Registration Statement effective for not less
than 30 days (or longer if required by applicable law) after the date notice of
the Exchange Offer is mailed to the holders of the Notes; and (iv) be required
to cause the Exchange Offer to be consummated no later than 40 days following
the date on which the Exchange Offer Registration Statement is declared
effective. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company will offer to the holders of registrable securities who are not
prohibited by any law or policy of the Commission from participating in the
Exchange Offer the opportunity to exchange their registrable securities for an
issue of notes (the "Exchange Notes") that are identical in all material
respects to their registrable securities (except that the Exchange Notes will
not contain terms with respect to certain interest rate provisions and transfer
restrictions) and that would be registered under the Securities Act. The Company
will keep the Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date on which notice of the Exchange Offer
is mailed to the holders of the Notes.
Section 5.02. If (i) because of any change in law or in applicable
interpretations thereof by the Commission, the Company is not permitted to
effect the Exchange Offer as contemplated in the Registration Rights Agreement;
(ii) the Exchange Offer is not consummated by the 180th day after the Issue
Date; (iii) the Initial Purchaser of the Notes requests with respect to Notes
not eligible to be exchanged for Exchange Notes in the Exchange Offer and held
by it following consummation of the Exchange Offer; or (iv) any holder (other
than a broker-dealer) of Notes is not eligible to participate in the Exchange
Offer or, in the case of any holder (other than a broker-dealer) of Notes that
participates in the Exchange Offer, such holder does not receive Exchange Notes
on the date of the exchange and any such holder so requests, (each such event
referred to in clauses (i) through (iv) above a "Trigger Date"), the Company
will promptly (but in no event more than 45 days after the Trigger Date), file
with the Commission and thereafter use its best efforts to cause to be declared
effective no later than 140 days after such Trigger Date a shelf registration
statement (the "Shelf Registration Statement") relating to the offer and sale of
the registrable securities by the holders of the Notes to cover such Notes;
provided, however, such holders must agree in writing to be bound by the terms
of the Shelf Registration Statement applicable to such holder.
Section 5.03. Each holder of Notes participating in the Exchange Offer shall
be required to make certain representations at the time of the consummation of
the Exchange Offer, including representations that (i) any Exchange Notes
received by such holder will be acquired in the ordinary course of business;
(ii) such holder has no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act; (iii) such holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable; (iv) if such holder
is not a broker-dealer, that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Notes; and (v) if such holder of Notes is a
broker-dealer, that it will receive Exchange Notes for its own account in
exchange for Notes that were acquired as a result of market-making activities or
other trading activities and that it will be required to acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
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ARTICLE VI
SUCCESSORS
Section 6.01. Merger, Consolidation and Sale of Assets. The Company will
not, in a single transaction or series of related transactions, consolidate or
merge with or into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Subsidiary of the Company to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially
all of the Company's assets (determined on a consolidated basis for the Company
and the Company's Subsidiaries) whether as an entirety or substantially as an
entirety to any Person unless:
(1) either:
(a) the Company shall be the surviving or continuing
corporation; or
(b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the
Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of the
Company and of the Company's Subsidiaries substantially as an
entirety (the "Surviving Entity"):
(i) shall be a corporation organized and validly
existing under the laws of the United States or any
State thereof or the District of Columbia; and
(ii) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the due
and punctual payment of the principal of, and premium,
if any, and interest on all of the Notes and the
performance of every covenant of the Notes and the
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(ii) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be:
(a) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and (b) shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.09, 4.10 and 4.11 hereof;
(3) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (1)(b)(ii)
above (including, without limitation, giving effect to any Indebtedness
and Acquired Indebtedness incurred or anticipated to be incurred and any
Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and
(4) the Company or the Surviving Entity shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this First
Supplemental Indenture and that all conditions precedent in this First
Supplemental Indenture relating to such transaction have been satisfied.
39
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
Section 6.02. Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 6.01 hereof, in which the Company is not the continuing
corporation, the successor corporation formed by such consolidation or into or
with which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this First
Supplemental Indenture referring to the "Company" shall refer instead to the
successor corporation and not to the Company), and may exercise every right and
power of, the Company under this First Supplemental Indenture and the Notes with
the same effect as if such successor corporation had been named as the Company
herein; provided, however, that, in the case of a transfer by lease, the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. Events of Default. The following are "Events of Default":
(1) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30
days;
(2) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer);
(3) a default in the observance or performance of any other
covenant or agreement contained in this First Supplemental Indenture and
such default continues for a period of 30 days after the Company
receives written notice specifying the default (and demanding that such
default be remedied) from the Trustee or the Holders of at least 25% of
the outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.01 hereof, which will constitute an
Event of Default with such notice requirement but without such passage
of time requirement);
(4) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness (other than Non-Recourse Indebtedness) of the
Company or any Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is
not rescinded, annulled or otherwise cured within 20 days of receipt by
the Company or such Subsidiary of notice of any such acceleration) if
the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated,
aggregates $5.0 million or more at any time;
(5) one or more judgments in an aggregate amount in excess of
$5.0 million shall have been rendered against the Company or any of its
Subsidiaries and such judgments remain
40
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable (other than any
judgments as to which, and only to the extent, a reputable insurance
company has acknowledged coverage of such judgments in writing);
(6) there shall have been the entry by a court of competent
jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law; or
(b) a decree or order adjudging the Company or any
Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Significant Subsidiary under any
applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or
of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and any such decree or order
for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of
60 consecutive days; or
(7) (a) the Company or any Significant Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent;
(b) the Company or any Significant Subsidiary
consents to the entry of a decree or order for relief in respect
of the Company or such Significant Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it;
(c) the Company or any Significant Subsidiary files
a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law;
(d) the Company or any Significant Subsidiary:
(i) consents to the filing of such petition
or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or such
Significant Subsidiary or of any substantial part of its
property;
(ii) makes an assignment for the benefit of
creditors; or
(iii) admits in writing its inability to pay
its debts generally as they become due; or
(e) the Company or any Significant Subsidiary takes
any corporate action in furtherance of any such actions in this
clause (7).
Section 7.02. Acceleration. If an Event of Default (other than an Event of
Default specified in clauses (6) or (7) above with respect to the Company) shall
occur and be continuing, the Trustee or the Holders of at least 25% in principal
amount of outstanding Notes may declare the principal of and accrued interest on
all the Notes to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same shall become immediately
due and payable.
41
If an Event of Default specified in clauses (6) or (7) above with
respect to the Company occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration,
has been paid;
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances; and
(5) in the event of the cure or waiver of an Event of Default of
the type described in clauses (6) or (7) of Section 7.01 hereof, the
Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 7.03. Other Remedies. If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this First Supplemental Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 7.04. Waiver of Past Defaults. Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by notice in writing to
the Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on, the Notes (including in connection with a Change of Control
Offer or other offer to purchase) (provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this First Supplemental Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 7.05. Control by Majority. Holders of a majority in principal amount
of the then outstanding Notes may, by written notice, direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee or exercising any trust or power conferred on it. However,
42
the Trustee may refuse to follow any direction that conflicts with law or this
First Supplemental Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in any personal liability.
Section 7.06. Limitation on Suits. A Holder of a Note may pursue a remedy with
respect to this First Supplemental Indenture or the Notes only if:
(a) a Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a written direction
inconsistent with the request.
(f) A Holder may not use this First Supplemental Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over another
Holder.
Section 7.07. Rights of Holders of Notes to Receive Payment. Notwithstanding
any other provision of this First Supplemental Indenture, the right of any
Holder to receive payment of principal, premium, if any, and interest on the
Notes so held, on or after the respective due dates expressed in the Notes
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 7.08. Collection Suit by Trustee. If an Event of Default specified in
Section 7.01(1) or (2) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal of, premium, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any amounts due the Trustee under Section 8.07 hereof.
Section 7.09. Trustee May File Proofs of Claim. The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent in writing to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 8.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
43
other amounts due the Trustee under Section 8.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 7.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 8.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 7.10.
Section 7.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this First Supplemental Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 7.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VIII
TRUSTEE
Section 8.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this First
Supplemental Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this First Supplemental
Indenture and no implied covenants or obligations shall be read into
this First Supplemental Indenture against the Trustee; and
44
(ii) the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this First Supplemental Indenture in the absence of
bad faith on the Trustee's part; provided, however, that the Trustee
shall examine the certificates and opinions to determine whether or not
they substantially conform to the requirements of this First
Supplemental Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
conclusively determined by a court of competent jurisdiction, such
determination no longer subject to appeal or review, that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
written direction received by it pursuant to Section 7.05; and
(iv) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of
any of its duties under this First Supplemental Indenture or in the
exercise of any of its rights or powers, if it has reasonable grounds to
believe repayment of the funds or indemnity satisfactory to it against
the risk or liability is not reasonably assured to it.
(d) Every provision of this First Supplemental Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee is
subject to the provisions of this Section 8.01 and to the provisions of the TIA.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money and
Government Securities held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a majority in principal amount of the Notes at the time
outstanding given pursuant to Section 7.05 of this First Supplemental Indenture,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this First Supplemental Indenture.
Section 8.02. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in such documents.
45
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel that conforms to Section 12.04.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents, attorneys, custodians or
nominees and shall not be responsible for the misconduct or negligence of any
attorneys, custodians or nominees appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers, except conduct that constitutes willful misconduct, negligence or bad
faith.
(e) The Trustee may consult with counsel, and the advice or any opinion
of counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it hereunder in good faith reliance and in
accordance with such written advice or opinion of counsel.
(f) The Trustee will not be required to investigate any facts or matters
stated in any document, but if it decides to investigate any matters or facts,
the Trustee or its agents or attorneys will be entitled to examine the books,
records and premises of the Company.
Section 8.03. Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 8.10 and 8.11 hereof.
Section 8.04. Trustee's Disclaimer. The Trustee (i) is not responsible for and
makes no representation as to the validity or adequacy of this First
Supplemental Indenture, (ii) shall not be accountable for the Company's use of
the proceeds from the Notes and (iii) shall not be responsible for any statement
of the Company in this First Supplemental Indenture, other than the Trustee's
certificate of authentication, or in any prospectus used in the sale of any of
the Notes, other than statements, if any, provided in writing by the Trustee for
use in such prospectus.
Section 8.05. Notice of Defaults. The Trustee will give to the Holders notice
of any Default with regard to the Notes actually known to a Responsible Officer
within 90 days after receipt of such knowledge and in the manner and to the
extent provided in TIA Section 313(c), and otherwise as provided in Section
12.02 of this First Supplemental Indenture; provided, however, that except in
the case of a Default in payment of the principal of, premium, if any, or
interest on any Note, the Trustee will be protected in withholding notice of
Default if and so long as a committee of its Responsible Officers in good faith
determines that withholding of the notice is in the interests of the Holders of
the Notes.
Section 8.06. Reports by Trustee. Within 60 days after each October 15
beginning with the October 15 following the date of this First Supplemental
Indenture, the Trustee will mail to each Holder, at the name and address which
appears on the registration books of the Company, and to each Holder who has,
within the two years preceding the mailing, filed that person's name and address
with the Trustee for that purpose and each Holder whose name and address have
been furnished to the Trustee pursuant to Section 2.05, a brief report dated as
of that October 15 which complies with TIA Section 313(a). Reports to
Noteholders pursuant to this Section 8.06 shall be transmitted in the manner and
to the extent provided in TIA Section 313(c). The Trustee also will comply with
TIA Section 313(b).
46
A copy of each report will at the time of its mailing to Holders be
filed with each stock exchange on which the Notes are listed and also with the
Commission. The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange and of any delisting of the Notes.
Section 8.07. Compensation and Indemnity. The Company shall indemnify, defend
and hold harmless the Trustee and its officers, directors, employees,
representatives and agents, from and against and reimburse the Trustee for any
and all claims, expenses, obligations, liabilities, losses, damages, injuries
(to person, property, or natural resources), penalties, stamp or other similar
taxes, actions, suits, judgments, reasonable costs and expenses (including
reasonable attorney's and agent's fees and expenses) of whatever kind or nature
regardless of their merit, demanded, asserted or claimed against the Trustee
directly or indirectly relating to, or arising from, claims against the Trustee
by reason of its participation in the transactions contemplated hereby,
including without limitation all reasonable costs required to be associated with
such claims for damages to persons or property, and reasonable attorneys' and
consultants' fees and expenses and court costs except to the extent caused by
the Trustee's gross negligence or willful misconduct. The provisions of this
Section 8.07 shall survive the termination of this First Supplemental Indenture
or the earlier resignation or removal of the Trustee.
To secure the Company's obligations to make payments to the Trustee
under this Section 8.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, other than money or property
held in trust to pay principal or interest on particular Notes. The obligations
of the Company under this Section 8.07 to compensate the Trustee and to pay or
reimburse the Trustee for reasonable expenses, disbursements and advances shall
survive the satisfaction and discharge of this First Supplemental Indenture or
the earlier resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 7.01(6) or (7) hereof occurs, the expenses and the
compensation for the services of the Trustee are intended to constitute expenses
of administration under any Bankruptcy Law.
For purposes of this Section 8.07, "Trustee" will include any
predecessor Trustee, but the willful misconduct, negligence or bad faith of any
Trustee shall not affect the rights of any other Trustee under this Section
8.07.
Section 8.08. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Company. The Holders of a majority in aggregate principal amount
of the then outstanding Notes may remove the Trustee by so notifying the Trustee
and the Company and may appoint a successor Trustee. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 8.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
47
No removal or appointment of a Trustee will be valid if that removal or
appointment would conflict with any law applicable to the Company.
A successor Trustee will deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee will, subject to the Lien provided for in Section 8.07, transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee will become effective, and the successor Trustee
will have all the rights, powers and duties of the Trustee under this First
Supplemental Indenture. A successor Trustee will mail notice of its succession
to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company's obligations under Section 8.07 shall continue for the benefit of
the retiring Trustee.
Section 8.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust assets to, another Person, the resulting, surviving or
transferee Person will, without any further act, be the successor Trustee.
If at the time a successor by merger, conversion or consolidation to the
Trustee succeeds to the trusts created by this First Supplemental Indenture any
of the Notes have been authenticated but not delivered, the successor to the
Trustee may adopt the certificate of authentication of the predecessor Trustee,
and deliver the Notes which were authenticated by the predecessor Trustee; and
if at that time any of the Notes have not been authenticated, the successor to
the Trustee may authenticate those Notes in its own name as the successor to the
Trustee; and in either case the certificates of authentication will have the
full force provided in this First Supplemental Indenture for certificates of
authentication.
Section 8.10. Eligibility; Disqualification. The Trustee will at all times
satisfy the requirements of TIA Section 310(a). The Trustee will at all times
have (or shall be a member of a bank holding company system whose parent
corporation has) a combined capital and surplus of at least $50,000,000 as set
forth in its most recently published annual report of condition, which will be
deemed for this paragraph to be its combined capital and surplus. The Trustee
will comply with TIA Section 310(b).
Section 8.11. Preferential Collection of Claims. The Trustee shall comply with
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.01. Option to Effect Legal Defeasance or Covenant Defeasance. The
Company may, at the option of its Board of Directors evidenced by a Board
Resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 9.02 or 9.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 9.
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Section 9.02. Legal Defeasance and Discharge. Upon the Company's exercise
under Section 9.01 hereof of the option applicable to this Section 9.02, the
Company shall, subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, be deemed to have been discharged from its obligations with
respect to all outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 9.05 hereof and the
other Sections of this First Supplemental Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
First Supplemental Indenture (and the Trustee, on written demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 9.04 hereof,
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are
due, (b) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article 9. Subject to compliance with this Article 9, the Company
may exercise its option under this Section 9.02 notwithstanding the prior
exercise of its option under Section 9.03 hereof.
Section 9.03. Covenant Defeasance. Upon the Company's exercise under Section
9.01 hereof of the option applicable to this Section 9.03, the Company shall,
subject to the satisfaction of the conditions set forth in Section 9.04 hereof,
be released from its obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.16, 4.17, 4.18 and 4.19 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 9.04 are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 7.01
hereof, but, except as specified above, the remainder of this First Supplemental
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 9.01 hereof of the option applicable to this
Section 9.03 hereof, subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, Sections 7.01(4) and (5) hereof shall not constitute Events
of Default.
Section 9.04. Conditions to Legal or Covenant Defeasance. The following shall
be the conditions to the application of either Section 9.02 or 9.03 hereof to
the outstanding U.S. Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States Dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the written opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, and any other amounts owing
under this First Supplemental Indenture, if in the case of an optional
redemption date
49
prior to electing to exercise either Legal Defeasance or Covenant Defeasance,
the Company has delivered to the Trustee an irrevocable notice to redeem all of
the outstanding Notes on such redemption date;
(b) in the case of an election under Section 9.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the State of New
York reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this First Supplemental Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 9.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the State of New
York reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 91st
day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under this First Supplemental
Indenture or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, assuming no intervening bankruptcy of the Company
between the date of deposit and the 91st day following the date of deposit and
that no Holder is an insider of the Company, after the 91st day following the
date of deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Notwithstanding the foregoing, the opinion of counsel required by clause
(b) above with respect to Legal Defeasance need not be delivered if all Notes
not theretofore delivered to the Trustee for cancellation (1) have become due
and payable or (2) will become due and payable on the maturity date within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
50
Section 9.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions. Subject to Section 9.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee pursuant to Section 9.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this First Supplemental Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 9.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the written request
of the Company any money or non-callable Government Securities held by it as
provided in Section 9.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 9.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06. Repayment to Company. Any money deposited with the Trustee or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its written request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.07. Reinstatement. If the Trustee or Paying Agent is unable to apply
any United States dollars or non-callable Government Securities in accordance
with Section 9.02 or 9.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this First Supplemental Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 9.02 or 9.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 9.02 or 9.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE X
AMENDMENT, SUPPLEMENT AND WAIVER
Section 10.01. Without Consent of Holders of Notes. Notwithstanding Section
10.02 of this First Supplemental Indenture, the Company and the Trustee may
amend or supplement this First Supplemental Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency that does not
adversely affect in any material respect the rights hereunder of any Holder of
the Notes;
(b) to provide for certificated Notes in addition to or in place of
uncertificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders by a successor to the Company pursuant to Article 6 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respect the rights hereunder of any Holder of the Notes;
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this First Supplemental Indenture under the TIA;
or
(f) to evidence and provide for the acceptance of appointment under this
First Supplemental Indenture of a successor Trustee.
Upon the written request of the Company accompanied by, to the extent
necessary, a Board Resolution authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 8.02 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this First Supplemental Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture which it believes affects its own rights, duties, indemnities or
immunities under this First Supplemental Indenture or otherwise.
Section 10.02. With Consent of Holders of Notes. Except as provided below in
this Section 10.02, the Company and the Trustee may amend or supplement this
First Supplemental Indenture (including Section 4.15 hereof), and the Notes with
the written consent of the Holders of at least a majority in principal amount of
the Notes then outstanding voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 7.04 and 7.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this First Supplemental Indenture or the Notes may be
waived with the written consent of the Holders of a majority in principal amount
of the then outstanding Notes voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes).
Upon the written request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of
52
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
8.02 hereof, the Trustee shall join with the Company in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee's own rights, duties or immunities under this First
Supplemental Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 10.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver. Subject to Sections 7.04 and 7.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding voting as a single
class may waive in writing compliance in a particular instance by the Company
with any provision of this First Supplemental Indenture or the Notes. However,
without the written consent of each Holder affected, an amendment or waiver
under this Section 10.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the amount of Notes whose Holders must consent to an
amendment;
(b) reduce the rate of or change or have the effect of changing the time
for payment of interest, including defaulted interest, on any Notes;
(c) reduce the principal of or change or have the effect of changing the
fixed maturity of any Notes, or change the date on which any Notes may be
subject to redemption or reduce the redemption price therefor;
(d) make any Notes payable in money other than that stated in the Notes;
(e) make any change in provisions of this First Supplemental Indenture
protecting the right of each Holder to receive payment of principal of and
interest on such Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting Holders of a majority in principal amount of
Notes to waive Defaults or Events of Default;
(f) after the Company's obligation to purchase Notes arises thereunder,
amend, change or modify in any material respect the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of
Control, modify any of the provisions or definitions with respect thereto; or
(g) modify or change any provision of this First Supplemental Indenture
or the related definitions affecting the subordination or ranking of the Notes
in a manner which adversely affects the Holders.
Section 10.03. Compliance with Trust Indenture Act. Every amendment or
supplement to this First Supplemental Indenture or the Notes shall be set forth
in a amended or supplemental indenture that complies with the TIA as then in
effect.
Section 10.04. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every
53
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement
or waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
Section 10.05. Notation on or Exchange of Notes. The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 10.06. Trustee to Sign Amendments, etc. The Trustee shall sign any
amended or supplemental indenture authorized pursuant to this Article 10 if the
amendment or supplement does not adversely affect the rights, duties,
liabilities, indemnities or immunities of the Trustee. The Company may not sign
an amendment or supplemental indenture until the Board of Directors approves it.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 8.01 hereof) shall be fully
protected in relying conclusively upon, in addition to the documents required by
Section 12.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this First Supplemental Indenture.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge. This Supplemental Indenture will be
discharged and will cease to be of further effect (except as to surviving rights
or registration of transfer or exchange of the Notes, as expressly provided for
in this First Supplemental Indenture) as to all outstanding Notes, when:
(a) either:
(i) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee
for cancellation; or
(ii) all Notes not theretofore delivered to the
Trustee for cancellation have become due and payable and the
Company has irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation, for principal of, premium, if
any, and interest on the Notes to the date of deposit together
with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity
or redemption, as the case may be;
(b) the Company has paid all other sums payable under this First
Supplemental Indenture by the Company; and
54
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this First
Supplemental Indenture relating to the satisfaction and discharge of this First
Supplemental Indenture have been complied with.
Section 11.02. Application of Trust Money. Subject to the provisions of Section
9.06, all money deposited with the Trustee pursuant to Section 11.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this First Supplemental Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this First Supplemental Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01; provided that if the Company has made any payment of principal
of, premium, if any, or interest on any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
TIA Section 318(c), the imposed duties shall control.
Section 12.02. Notices. Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Chief Executive Officer
With a copy to:
Dechert LLP
0000 XxxXxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
55
If to the Trustee:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx - MSNYC 60-2515
Xxx Xxxx, XX 00000
Attention: Corporate Trust and Agency Services
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Note.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this First Supplemental Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this First Supplemental Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this First
Supplemental Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion. Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this First Supplemental Indenture (other than a certificate provided pursuant
to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
56
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and
Stockholders. No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this First Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.08. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE NOTES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements. This First
Supplemental Indenture may not be used to interpret any other supplemental
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such supplemental indenture, loan or debt agreement may not be
used to interpret this First Supplemental Indenture.
Section 12.10. Successors. All agreements of the Company in this First
Supplemental Indenture and the Notes shall bind its successors. All agreements
of the Trustee in this First Supplemental Indenture shall bind its successors.
Section 12.11. Severability. In case any provision in this First Supplemental
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.12. Counterpart Originals. The parties may sign any number of copies
of this First Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this First
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this First Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
57
Section 12.14. Conflicts with Supplemental Indenture. If any provision of this
First Supplemental Indenture is inconsistent with any provision of the
Indenture, the provision of this First Supplemental Indenture will control with
regard to the Notes.
[Signatures on following page]
58
SIGNATURES
Dated as of May 15, 2003
XXXXXXXXX MORTGAGE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Operating
Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity, but solely
as Trustee
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
[Face of Note]
FORM OF INITIAL RESTRICTED GLOBAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $1,000 ($100,000 FOR INSTITUTIONAL ACCREDITED
INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (a)
TO THE COMPANY OR THE INITIAL PURCHASER OR BY, THROUGH OR IN A TRANSACTION
APPROVED BY, THE INITIAL PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO AN INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATIONS
UNDER THE SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CUSIP/CINS [ ]
8.00% Senior Notes due 2013
No. ___ $___________
XXXXXXXXX MORTGAGE, INC.
promises to pay to __________________________, or registered assigns, the
principal sum of
Dollars on May 15, 2013.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May 15, 2003
XXXXXXXXX MORTGAGE, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
SEAL
A-2
This is one of the Notes referred to
in the within-mentioned Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
By:
-----------------------------
Authorized Signatory
A-3
[Back of Note]
8.00% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in this First Supplemental Indenture referred to below unless otherwise
indicated.
1. INTEREST. Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
8.00% per annum from May 15, 2003 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 2003; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 2003. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.14 of this
First Supplemental Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts. The
Company reserves the right to pay interest to Holders of Notes by check mailed
to such Holders at their registered addresses or by wire transfer to Holders of
at least $5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust
Company Americas, the Trustee under this First Supplemental Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 15, 2003 as supplemented by a Supplemental Indenture dated as of May
15, 2003 (collectively, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company. The Company is issuing
$200.0 million
A-4
in aggregate principal amount on the Issue Date and may issue Additional Notes
in accordance with the terms of the Indenture.
5. OPTIONAL REDEMPTION.
Optional Redemption. At any time on or after May 15, 2008, the Notes may
be redeemed or purchased in whole or in part at the Company's option at a price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to May 15, 2013 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
Optional Redemption Upon Equity Offerings. At any time, or from time to
time, on or prior to May 15, 2006, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such redemption;
and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
X-0
0. XXXXXXXXXX AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company and the Trustee may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. If, this Note is exchanged in an
Exchange Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on this Note, up
to but not including the date of issuance of the Note(s) issued in exchange (the
"Exchange Note") for this Note, shall be paid on the first Interest Payment Date
for such Exchange Note(s) to the Holder or Holders of such Exchange Note(s) on
the first Record Date with respect to such Exchange Note(s). If this Note is
exchanged in an Exchange Offer subsequent to the Record Date for the first
Interest Payment Date following such exchange but on or prior to the Interest
Payment Date, then any such accrued and unpaid interest with respect to this
Note and any accrued and unpaid interest on the Exchange Note(s) issued in
exchange for this Note, through the day before such Interest Payment Date, shall
be paid on such Interest Payment Date to the Holder of this Note on the Record
Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated May 15, 2003 (the "Registration Rights Agreement") among
the Issuer and Credit Suisse First Boston LLC (the "Initial Purchaser").
If the Company fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
If (i) any Registration Statement required to be filed pursuant to the
Registration Rights Agreement is not filed within the applicable time periods
stated above; (ii) any Registration Statement required to be filed pursuant to
the Registration Rights Agreement is not declared effective within the
applicable time periods specified above; (iii) the Exchange Offer has not been
consummated within the time period specified above; or (iv) any Registration
Statement required to be filed pursuant to the Registration Rights Agreement
that has been declared effective either (A) thereafter ceases to be effective,
or (B) thereafter ceases, or the related prospectus ceases, to be usable in
connection with the resales of the registrable securities during the periods in
which such Registration Statement is obligated to be usable as specified above,
because (1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or (2) it will be necessary to amend such Registration
Statement, to supplement the related prospectus, or to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, the
Company will be obligated to pay additional interest to each holder of
registrable securities (each such event in clauses (i) through (iv) above, a
"Registration Default").
A-6
Additional interest will accrue on the Notes over and above the interest
rate from and including the date on which any Registration Defaults occur, up to
but excluding the date on which all such Registration Defaults have been cured,
at a rate of one-half of one percent (0.50%) per annum for the first 90-day
period immediately following the occurrence of such Registration Default. The
additional interest rate will increase by an additional one-half of one percent
(0.50%) per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum interest rate of 2.0% per
annum.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respects the rights under the Indenture of any such Holder, to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in this First Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in writing in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by written notice to the Trustee may on behalf of the Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations
A-7
or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Investor Relations
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of this First Supplemental Indenture, check the following box:
[ ]
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.15 of this First Supplemental Indenture, state the
amount you elect to have purchased:
$_______________
Date:_______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:_____________________________
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-10
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Company or to, by, through,
or in a transaction approved by the Initial Purchaser), the undersigned
registered holder certifies that without utilizing any general solicitation or
general advertising:
[CHECK ONE]
[ ] (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer," as defined in Rule
144A under the Securities Act of 1933, as amended, pursuant to
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is an
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee that
such transferee shall hold such Note for its own account, or as
a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes
and not for distribution, subject to any requirement of law that
the disposition of such transferee's property shall at all times
be and remain within its control.
or
[ ] (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a person
that is not a "U.S. person" (or acquiring such Note for the
account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933, as
amended, provided by Regulation S thereunder.
A-11
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Company or
to, by, through, or in a transaction approved by, the Initial Purchaser), the
Trustee shall not be obligated to register such Note in the name of any Person
other than the registered holder thereof and until the conditions to any such
registration of transfer set forth in this Note and in the Indenture shall have
been satisfied.
Dated:______________ _________________________________________________
[Type or print name of registered holder]
By:
----------------------------------------------
The signature of the registered holder must
correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change
whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Company as the undersigned transferee
has requested pursuant to Rule 144A or has determined not to request such
information, (ii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers and (iii) it is aware that the
registered holder of this Note is relying upon the undersigned transferee's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A. The undersigned transferee acknowledges and agrees that
this Note has not been registered under the Securities Act of 1933, as amended,
and may not be transferred except in accordance with the resale and other
transfer restrictions set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
A-12
and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
A-13
EXHIBIT B
[Face of Note]
FORM OF INITIAL REGULATION S GLOBAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $1,000 ($100,000 FOR INSTITUTIONAL ACCREDITED
INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (a)
TO THE COMPANY OR THE INITIAL PURCHASER OR BY, THROUGH OR IN A TRANSACTION
APPROVED BY, THE INITIAL PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO AN INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
B-1
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
CUSIP/CINS [ ]
8% Senior Notes due 2013
No. ___ $___________
XXXXXXXXX MORTGAGE, INC.
promises to pay to __________________________, or registered assigns, the
principal sum of
Dollars on May 15, 2013.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May 15, 2003
XXXXXXXXX MORTGAGE, INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
B-2
SEAL
This is one of the Notes referred to
in the within-mentioned Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
By:
---------------------------------
Authorized Signatory
B-3
[Back of Note]
8% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in this First Supplemental Indenture referred to below unless otherwise
indicated.
1. INTEREST. Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 8%
per annum from May 15, 2003 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 2003; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 2003. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.14 of this
First Supplemental Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts. The
Company reserves the right to pay interest to Holders of Notes by check mailed
to such Holders at their registered addresses or by wire transfer to Holders of
at least $5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust
Company Americas, the Trustee under this First Supplemental Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 15, 2003 as supplemented by a Supplemental Indenture dated as of May
15, 2003 (collectively, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company. The Company is issuing
$200.0 million
B-4
in aggregate principal amount on the Issue Date and may issue Additional Notes
in accordance with the terms of the Indenture.
5. OPTIONAL REDEMPTION.
Optional Redemption. At any time on or after May 15, 2008, the Notes may
be redeemed or purchased in whole or in part at the Company's option at a price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to May 15, 2013 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
Optional Redemption Upon Equity Offerings. At any time, or from time to
time, on or prior to May 15, 2006, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such redemption;
and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
B-5
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company and the Trustee may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. If, this Note is exchanged in an
Exchange Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on this Note, up
to but not including the date of issuance of the Note(s) issued in exchange (the
"Exchange Note") for this Note, shall be paid on the first Interest Payment Date
for such Exchange Note(s) to the Holder or Holders of such Exchange Note(s) on
the first Record Date with respect to such Exchange Note(s). If this Note is
exchanged in an Exchange Offer subsequent to the Record Date for the first
Interest Payment Date following such exchange but on or prior to the Interest
Payment Date, then any such accrued and unpaid interest with respect to this
Note and any accrued and unpaid interest on the Exchange Note(s) issued in
exchange for this Note, through the day before such Interest Payment Date, shall
be paid on such Interest Payment Date to the Holder of this Note on the Record
Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated May 15, 2003 (the "Registration Rights Agreement") among
the Issuer and Credit Suisse First Boston LLC (the "Initial Purchaser").
If the Company fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
If (i) any Registration Statement required to be filed pursuant to the
Registration Rights Agreement is not filed within the applicable time periods
stated above; (ii) any Registration Statement required to be filed pursuant to
the Registration Rights Agreement is not declared effective within the
applicable time periods specified above; (iii) the Exchange Offer has not been
consummated within the time period specified above; or (iv) any Registration
Statement required to be filed pursuant to the Registration Rights Agreement
that has been declared effective either (A) thereafter ceases to be effective,
or (B) thereafter ceases, or the related prospectus ceases, to be usable in
connection with the resales of the registrable securities during the periods in
which such Registration Statement is obligated to be usable as specified above,
because (1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or (2) it will be necessary to amend such Registration
Statement, to supplement the related prospectus, or to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, the
Company will be obligated to pay additional interest to each holder of
registrable securities (each such event in clauses (i) through (iv) above, a
"Registration Default").
B-6
Additional interest will accrue on the Notes over and above the interest
rate from and including the date on which any Registration Defaults occur, up to
but excluding the date on which all such Registration Defaults have been cured,
at a rate of one-half of one percent (0.50%) per annum for the first 90-day
period immediately following the occurrence of such Registration Default. The
additional interest rate will increase by an additional one-half of one percent
(0.50%) per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum interest rate of 2.0% per
annum.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respects the rights under the Indenture of any such Holder, to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
writing in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations
B-7
or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Investor Relations
B-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
B-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of this First Supplemental Indenture, check the following box:
[ ]
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.15 of this First Supplemental Indenture, state the
amount you elect to have purchased:
$_______________
Date:_______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:_____________________________
Signature Guarantee*:
---------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-10
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Company or to, by, through,
or in a transaction approved by the Initial Purchaser), the undersigned
registered holder certifies that without utilizing any general solicitation or
general advertising:
[CHECK ONE]
[ ] (a) Such Note is being transferred by the undersigned
registered holder to a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as
amended, pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
[ ] (b) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is an
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee that
such transferee shall hold such Note for its own account, or as
a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes
and not for distribution, subject to any requirement of law that
the disposition of such transferee's property shall at all times
be and remain within its control.
or
[ ] (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a person
that is not a "U.S. person" (or acquiring such Note for the
account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933, as
amended, provided by Regulation S thereunder.
B-11
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Company or
to, by, through, or in a transaction approved by, the Initial Purchaser), the
Trustee shall not be obligated to register such Note in the name of any Person
other than the registered holder thereof and until the conditions to any such
registration of transfer set forth in this Note and in the Indenture shall have
been satisfied.
Dated:______________ _________________________________________________
[Type or print name of registered holder]
By:
----------------------------------------------
The signature of the registered holder must
correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change
whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Company as the undersigned transferee
has requested pursuant to Rule 144A or has determined not to request such
information, (ii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers and (iii) it is aware that the
registered holder of this Note is relying upon the undersigned transferee's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A. The undersigned transferee acknowledges and agrees that
this Note has not been registered under the Securities Act of 1933, as amended,
and may not be transferred except in accordance with the resale and other
transfer restrictions set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
B-12
and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
B-13
EXHIBIT C
[Face of Note]
FORM OF INITIAL CERTIFICATED NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (a)
TO THE COMPANY OR THE INITIAL PURCHASER OR BY, THROUGH OR IN A TRANSACTION
APPROVED BY, THE INITIAL PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS
A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES TO AN INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR
THE ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
C-1
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
CUSIP/CINS [ ]
8.00% Senior Notes due 2013
No. ___ $___________
XXXXXXXXX MORTGAGE, INC.
promises to pay to __________________________, or registered assigns, the
principal sum of
Dollars on May 15, 2013.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May 15, 2003
XXXXXXXXX MORTGAGE, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SEAL
This is one of the Notes referred to
in the within-mentioned Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
By:
--------------------------------
Authorized Signatory
C-2
[Back of Note]
8.00% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in this First Supplemental Indenture referred to below unless otherwise
indicated.
1. INTEREST. Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
8.00% per annum from May 15, 2003 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 2003; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 2003. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.14 of this
First Supplemental Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts. The
Company reserves the right to pay interest to Holders of Notes by check mailed
to such Holders at their registered addresses or by wire transfer to Holders of
at least $5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust
Company Americas, the Trustee under this First Supplemental Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 15, 2003 as supplemented by a Supplemental Indenture dated as of May
15, 2003 (collectively, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company. The Company is issuing
$200.0 million
C-3
in aggregate principal amount on the Issue Date and may issue Additional Notes
in accordance with the terms of the Indenture.
5. OPTIONAL REDEMPTION.
Optional Redemption. At any time on or after May 15, 2008, the Notes may
be redeemed or purchased in whole or in part at the Company's option at a price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to May 15, 2013 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
Optional Redemption Upon Equity Offerings. At any time, or from time to
time, on or prior to May 15, 2006, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such redemption;
and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
C-4
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company and the Trustee may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. If, this Note is exchanged in an
Exchange Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on this Note, up
to but not including the date of issuance of the Note(s) issued in exchange (the
"Exchange Note") for this Note, shall be paid on the first Interest Payment Date
for such Exchange Note(s) to the Holder or Holders of such Exchange Note(s) on
the first Record Date with respect to such Exchange Note(s). If this Note is
exchanged in an Exchange Offer subsequent to the Record Date for the first
Interest Payment Date following such exchange but on or prior to the Interest
Payment Date, then any such accrued and unpaid interest with respect to this
Note and any accrued and unpaid interest on the Exchange Note(s) issued in
exchange for this Note, through the day before such Interest Payment Date, shall
be paid on such Interest Payment Date to the Holder of this Note on the Record
Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated May 15, 2003 (the "Registration Rights Agreement") among
the Issuer and Credit Suisse First Boston LLC (the "Initial Purchaser").
If the Company fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
If (i) any Registration Statement required to be filed pursuant to the
Registration Rights Agreement is not filed within the applicable time periods
stated above; (ii) any Registration Statement required to be filed pursuant to
the Registration Rights Agreement is not declared effective within the
applicable time periods specified above; (iii) the Exchange Offer has not been
consummated within the time period specified above; or (iv) any Registration
Statement required to be filed pursuant to the Registration Rights Agreement
that has been declared effective either (A) thereafter ceases to be effective,
or (B) thereafter ceases, or the related prospectus ceases, to be usable in
connection with the resales of the registrable securities during the periods in
which such Registration Statement is obligated to be usable as specified above,
because (1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or (2) it will be necessary to amend such Registration
Statement, to supplement the related prospectus, or to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, the
Company will be obligated to pay additional interest to each holder of
registrable securities (each such event in clauses (i) through (iv) above, a
"Registration Default").
C-5
Additional interest will accrue on the Notes over and above the interest
rate from and including the date on which any Registration Defaults occur, up to
but excluding the date on which all such Registration Defaults have been cured,
at a rate of one-half of one percent (0.50%) per annum for the first 90-day
period immediately following the occurrence of such Registration Default. The
additional interest rate will increase by an additional one-half of one percent
(0.50%) per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum interest rate of 2.0% per
annum.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respects the rights under the Indenture of any such Holder, to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in this First Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in writing in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by written notice to the Trustee may on behalf of the Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations
C-6
or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Investor Relations
C-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
-----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
C-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of this First Supplemental Indenture, check the following box:
[ ]
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.15 of this First Supplemental Indenture, state the
amount you elect to have purchased:
$_______________
Date: _______________
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:_____________________________
Signature Guarantee*:
-----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
C-9
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Company or to, by, through,
or in a transaction approved by the Initial Purchaser), the undersigned
registered holder certifies that without utilizing any general solicitation or
general advertising:
[CHECK ONE]
[ ] (a) Such Note is being transferred by the undersigned
registered holder to a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as
amended, pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
[ ] (b) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is an
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee that
such transferee shall hold such Note for its own account, or as
a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes
and not for distribution, subject to any requirement of law that
the disposition of such transferee's property shall at all times
be and remain within its control.
or
[ ] (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a person
that is not a "U.S. person" (or acquiring such Note for the
account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933, as
amended, provided by Regulation S thereunder.
C-10
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Company or
to, by, through, or in a transaction approved by, the Initial Purchaser), the
Trustee shall not be obligated to register such Note in the name of any Person
other than the registered holder thereof and until the conditions to any such
registration of transfer set forth in this Note and in the Indenture shall have
been satisfied.
Dated:______________ _________________________________________________
[Type or print name of registered holder]
By:
----------------------------------------------
The signature of the registered holder must
correspond with the name as written upon the face
of this Note in every particular, without
alteration or enlargement or any change
whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Company as the undersigned transferee
has requested pursuant to Rule 144A or has determined not to request such
information, (ii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers and (iii) it is aware that the
registered holder of this Note is relying upon the undersigned transferee's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A. The undersigned transferee acknowledges and agrees that
this Note has not been registered under the Securities Act of 1933, as amended,
and may not be transferred except in accordance with the resale and other
transfer restrictions set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
C-11
and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________ _________________________________________________
[Type or print name of transferee]
By:
----------------------------------------------
Executive Officer
C-12
EXHIBIT D
FORM OF EXCHANGE GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
D-1
CUSIP/CINS:
8% Senior Notes due 2013
No. ___ $___________
XXXXXXXXX MORTGAGE, INC.
promises to pay to __________________________, or registered assigns, the
principal sum of
Dollars on May 15, 2013.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May , 2003
XXXXXXXXX MORTGAGE, INC.
By:
---------------------------------
Name:
Title:
SEAL
This is one of the Notes referred to
in the within-mentioned Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
By:
--------------------------------
Authorized Signatory
D-2
[Back of Note]
8% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in this First Supplemental Indenture referred to below unless otherwise
indicated.
1. INTEREST. Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 8%
per annum from May 15, 2003 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 2003; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 2003. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.14 of this
First Supplemental Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts. The
Company reserves the right to pay interest to Holders of Notes by check mailed
to such Holders at their registered addresses or by wire transfer to Holders of
at least $5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust
Company Americas, the Trustee under this First Supplemental Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 15, 2003 as supplemented by a Supplemental Indenture dated as of May
15, 2003 (collectively, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company. The Company is issuing
$200.0 million
D-3
in aggregate principal amount on the Issue Date and may issue Additional Notes
in accordance with the terms of the Indenture.
5. OPTIONAL REDEMPTION.
Optional Redemption. At any time on or after May 15, 2008, the Notes may
be redeemed or purchased in whole or in part at the Company's option at a price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to May 15, 2013 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
Optional Redemption Upon Equity Offerings. At any time, or from time to
time, on or prior to May 15, 2006, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:
(3) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such redemption;
and
(4) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
X-0
0. XXXXXXXXXX AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS AND TRANSFER. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company and the Trustee may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respects the rights under the Indenture of any such Holder, to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
writing in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware
D-5
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Investor Relations
D-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
-------------
Your Signature:
-----------------------------
(Sign exactly as your name
appears on the face of this
Note)
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
D-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of this First Supplemental Indenture, check the following box:
[ ]
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.15 of this First Supplemental Indenture, state the
amount you elect to have purchased:
$___________
Date:
------------
Your Signature:
----------------------------
(Sign exactly as your name
appears on the face of this
Note)
Tax Identification No.:
---------------------
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
D-8
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Company or to, by, through,
or in a transaction approved by the Initial Purchaser), the undersigned
registered holder certifies that without utilizing any general solicitation or
general advertising:
[CHECK ONE]
[ ] (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer," as defined in Rule
144A under the Securities Act of 1933, as amended, pursuant to
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor," as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the undersigned
has been advised by the prospective transferee that such
transferee shall hold such Note for its own account, or as a
fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes
and not for distribution, subject to any requirement of law that
the disposition of such transferee's property shall at all times
be and remain within its control.
or
[ ] (c) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is a person that is
not a "U.S. person" (or acquiring such Note for the account or
benefit of a U.S. person) in an "offshore transaction," as such
terms are defined in Regulation S under the Securities Act of
1933, as amended, pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided by
Regulation S thereunder.
D-9
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Company or
to, by, through, or in a transaction approved by, the Initial Purchaser), the
Trustee shall not be obligated to register such Note in the name of any Person
other than the registered holder thereof and until the conditions to any such
registration of transfer set forth in this Note and in the Indenture shall have
been satisfied.
Dated:
------------ --------------------------------------------
[Type or print name of registered holder]
By:
----------------------------------------
The signature of the registered holder must
correspond with the name as written upon the
face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Company as the undersigned transferee
has requested pursuant to Rule 144A or has determined not to request such
information, (ii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers and (iii) it is aware that the
registered holder of this Note is relying upon the undersigned transferee's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A. The undersigned transferee acknowledges and agrees that
this Note has not been registered under the Securities Act of 1933, as amended,
and may not be transferred except in accordance with the resale and other
transfer restrictions set forth in the legend on the face thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
D-10
and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
D-11
EXHIBIT E
FORM OF EXCHANGE CERTIFICATED NOTE
CUSIP/CINS:
8% Senior Notes due 2013
No. ___ $___________
XXXXXXXXX MORTGAGE, INC.
promises to pay to __________________________, or registered assigns, the
principal sum of
Dollars on May 15, 2013.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May , 2003
XXXXXXXXX MORTGAGE, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SEAL
This is one of the Notes referred to
in the within-mentioned Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
By:
--------------------------------
Authorized Signatory
[Back of Note]
8% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in this First Supplemental Indenture referred to below unless otherwise
indicated.
1. INTEREST. Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 8%
per annum from May 15, 2003 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from May
15, 2003; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 2003. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.14 of this
First Supplemental Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, and premium,
if any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts. The
Company reserves the right to pay interest to Holders of Notes by check mailed
to such Holders at their registered addresses or by wire transfer to Holders of
at least $5 million aggregate principal amount of Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust
Company Americas, the Trustee under this First Supplemental Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of May 15, 2003 as supplemented by a Supplemental Indenture dated as of May
15, 2003 (collectively, the "Indenture") between the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company. The Company is issuing
$200.0 million
E-2
in aggregate principal amount on the Issue Date and may issue Additional Notes
in accordance with the terms of the Indenture.
5. OPTIONAL REDEMPTION.
Optional Redemption. At any time on or after May 15, 2008, the Notes may
be redeemed or purchased in whole or in part at the Company's option at a price
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.
"Applicable Premium" means, with respect to a Note at any Redemption
Date: (1) 104% of the principal amount of such Note if the Redemption Date is on
or after May 15, 2008 and before May 15, 2009; (2) 102.667% of the principal
amount of such Note if the Redemption Date is on or after May 15, 2009 and
before May 15, 2010; (3) 101.333% of the principal amount of such Note if the
Redemption Date is on or after May 15, 2010 and before May 15, 2011; and (4) 0%
of the principal amount of such Note if the Redemption Date is on or after May
15, 2011. Calculation of the Applicable Premium will be made by the Company or
on behalf of the Company by such Person as the Company shall designate;
provided, however, that such calculation shall not be a duty or obligation of
the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to May 15, 2013; provided,
however, that if the period from such Redemption Date to May 15, 2013 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to May 15, 2013 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
Optional Redemption Upon Equity Offerings. At any time, or from time to
time, on or prior to May 15, 2006, the Company may, at its option, use the net
cash proceeds of one or more Equity Offerings to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 108% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided that:
(1) at least 65% of the principal amount of Notes issued under
the Indenture remains outstanding immediately after any such redemption;
and
(2) the Company makes such redemption not more than 60 days
after the consummation of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
X-0
0. XXXXXXXXXX AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company and the Trustee may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect in any
material respects the rights under the Indenture of any such Holder, to comply
with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to evidence and
provide for the acceptance of appointment under the Indenture of a successor
Trustee.
12. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
writing in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware
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of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Xxxxxxxxx Mortgage, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Investor Relations
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
-------------
Your Signature:
-----------------------------
(Sign exactly as your name
appears on the face of this
Note)
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of this First Supplemental Indenture, check the following box:
[ ]
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.15 of this First Supplemental Indenture, state the
amount you elect to have purchased:
$___________
Date:
------------
Your Signature:
----------------------------
(Sign exactly as your name
appears on the face of this
Note)
Tax Identification No.:
---------------------
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Company or to, by, through,
or in a transaction approved by the Initial Purchaser), the undersigned
registered holder certifies that without utilizing any general solicitation or
general advertising:
[CHECK ONE]
[ ] (a) Such Note is being transferred by the undersigned registered
holder to a "qualified institutional buyer," as defined in Rule
144A under the Securities Act of 1933, as amended, pursuant to
the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor," as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the undersigned
has been advised by the prospective transferee that such
transferee shall hold such Note for its own account, or as a
fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is a
bank acting in its fiduciary capacity), for investment purposes
and not for distribution, subject to any requirement of law that
the disposition of such transferee's property shall at all times
be and remain within its control.
or
[ ] (c) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is a person that is
not a "U.S. person" (or acquiring such Note for the account or
benefit of a U.S. person) in an "offshore transaction," as such
terms are defined in Regulation S under the Securities Act of
1933, as amended, pursuant to the exemption from registration
under the Securities Act of 1933, as amended, provided by
Regulation S thereunder.
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If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Company or
to, by, through, or in a transaction approved by, the Initial Purchaser), the
Trustee shall not be obligated to register such Note in the name of any Person
other than the registered holder thereof and until the conditions to any such
registration of transfer set forth in this Note and in the Indenture shall have
been satisfied.
Dated:
------------ --------------------------------------------
[Type or print name of registered holder]
By:
----------------------------------------
The signature of the registered holder must
correspond with the name as written upon the
face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Company as the undersigned transferee
has requested pursuant to Rule 144A or has determined not to request such
information, (ii) this instrument has been executed on behalf of the undersigned
transferee by one of its executive officers and (iii) it is aware that the
registered holder of this Note is relying upon the undersigned transferee's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A. The undersigned transferee acknowledges and agrees that
this Note has not been registered under the Securities Act of 1933, as amended,
and may not be transferred except in accordance with the resale and other
transfer restrictions set forth in the legend on the face thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
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and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:
------------ --------------------------------------------
[Type or print name of transferee]
By:
----------------------------------------
Executive Officer
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