Exhibit 10.12
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INDYMAC BANCORP, INC.
INDYMAC CAPITAL TRUST I
and
THE BANK OF NEW YORK,
as Warrant Agent
WILMINGTON TRUST COMPANY,
as Property Trustee
THE BANK OF NEW YORK,
as Agent
UNIT AGREEMENT
Dated as of November 14, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions and Other Provisions of General Applications.........................2
Section 1.1. Definitions...........................................................2
Section 1.2. Compliance Certificates and Opinions..................................9
Section 1.3. Form of Documents Delivered to Agent..................................9
Section 1.4. Acts of Holders; Record Dates........................................10
Section 1.5. Notices..............................................................11
Section 1.6. Notice to Holders; Waiver............................................12
Section 1.7. Effect of Headings and Table of Contents.............................13
Section 1.8. Successors and Assigns...............................................13
Section 1.9. Separability Clause..................................................13
Section 1.10. Benefits of Agreement................................................13
Section 1.11. Governing Law........................................................13
Section 1.12. Legal Holidays.......................................................13
Section 1.13. Counterparts.........................................................13
Section 1.14. Inspection of Agreement..............................................14
ARTICLE II Certificate Forms.............................................................14
Section 2.1. Forms of Certificates Generally; Legends.............................14
Section 2.2. Form of Agent's Certificate of Authentication........................15
ARTICLE III The Securities...............................................................15
Section 3.1. Amount; Form and Denominations.......................................15
Section 3.2. Rights and Obligations Evidenced by the Certificates.................15
Section 3.3. Execution, Authentication, Delivery and Dating.......................15
Section 3.4. Temporary Certificates...............................................17
Section 3.5. Registration; Registration of Transfer and Exchange..................17
Section 3.6. Separation and Rejoining of Units....................................19
Section 3.7. Book-Entry Interests.................................................20
Section 3.8. Notices to Holders...................................................21
Section 3.9. Appointment of Successor Clearing Agency.............................21
Section 3.10. Definitive Certificates..............................................21
Section 3.11. Mutilated, Destroyed, Lost and Stolen Certificates...................21
Section 3.12. Persons Deemed Owners................................................22
Section 3.13. Cancellation.........................................................23
Section 3.14. CUSIP Numbers........................................................23
Section 3.15. Special Transfer Provisions..........................................23
ARTICLE IV The Preferred Securities......................................................24
Section 4.1. Payment of Distribution; Rights to Distributions Preserved;
Distribution Rate Reset............................................ 24
Section 4.2. Notice and Voting....................................................24
Section 4.3. Distribution of Debentures...........................................25
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ARTICLE V Remarketing and Redemption; Early Exercise.....................................25
Section 5.1. Remarketing and Redemption...........................................25
Section 5.2. Early Exercise of Warrants; Exchange of Preferred Securities and
Repurchase of Debentures.............................................28
Section 5.3. Change in Control....................................................28
Section 5.4. Certain Rights Following a Remarketing...............................29
ARTICLE VI Remedies.......................................................................29
Section 6.1. Unconditional Right of Holders to Receive Payments and to Purchase
Common Stock.........................................................29
Section 6.2. Restoration of Rights and Remedies...................................30
Section 6.3. Rights and Remedies Cumulative.......................................30
Section 6.4. Delay or Omission Not Waiver.........................................30
Section 6.5. Undertaking for Costs................................................30
Section 6.6. Waiver of Stay or Extension Laws.....................................30
ARTICLE VII The Agent....................................................................31
Section 7.1. Certain Duties and Responsibilities..................................31
Section 7.2. Notice of Default....................................................32
Section 7.3. Certain Rights of Agent..............................................32
Section 7.4. Not Responsible for Recitals or Issuance of Securities...............33
Section 7.5. May Hold Securities..................................................33
Section 7.6. Money Held in Custody................................................33
Section 7.7. Compensation and Reimbursement.......................................34
Section 7.8. Corporate Agent Required; Eligibility................................34
Section 7.9. Resignation and Removal; Appointment of Successor....................35
Section 7.10. Acceptance of Appointment by Successor...............................36
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..........36
Section 7.12. Preservation of Information; Communications to Holders...............37
Section 7.13. No Obligations of Agent..............................................37
Section 7.14. Tax Compliance.......................................................37
ARTICLE VIII Supplemental Agreements.....................................................38
Section 8.1. Supplemental Agreements Without Consent of Holders...................38
Section 8.2. Supplemental Agreements With Consent of Holders; Other Fiduciaries...38
Section 8.3. Execution of Supplemental Agreements.................................39
Section 8.4. Effect of Supplemental Agreements....................................39
Section 8.5. Reference to Supplemental Agreements.................................40
ARTICLE IX Consolidation, Merger, Sale or Conveyance.....................................40
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions.............................................40
Section 9.2. Rights and Duties of Successor Corporation...........................40
Section 9.3. Opinion of Counsel Given to Agent....................................41
ARTICLE X Covenants 41
Section 10.1. Performance Under Agreements.........................................41
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Section 10.2. Maintenance of Office or Agency......................................41
Section 10.3. Statements of Officers of IndyMac Bancorp as to Compliance...........42
Section 10.4. ERISA. 42
Section 10.5. Statement by Officers as to Default..................................42
Section 10.6. Calculation of Original Issue Discount...............................42
ARTICLE XI Representations and Warranties of the Agent...................................42
Section 11.1. Representations and Warranties of the Agent..........................42
ARTICLE XII The Warrant Agent and The Property Trustee...................................43
Section 12.1. Certain Duties and Responsibilities..................................43
EXHIBIT A Form of Certificate
EXHIBIT B Instruction to Disregard Remarketing
EXHIBIT C Notice of Electing Remarketing Holder
EXHIBIT D Notice of Change of Control Redemption Election
EXHIBIT E Notice of Change of Control Exchange and Repurchase
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UNIT AGREEMENT, dated as of November 14, 2001 among IndyMac Bancorp,
Inc., a Delaware corporation ("IndyMac Bancorp"), IndyMac Capital Trust I, a
statutory Delaware business trust, Wilmington Trust Company, as Property Trustee
for the Trust, The Bank of New York, as Warrant Agent, and The Bank of New York,
acting as unit agent for the Holders of the Securities from time to time (the
"Agent").
RECITALS:
WHEREAS, the Issuers desire to issue Warrants and Income Redeemable
Equity Securities ("WIRES") Units consisting of:
(i) Preferred Securities (stated liquidation amount $50 per
preferred security) issued by the Trust pursuant to the Trust Agreement
and guaranteed by IndyMac Bancorp, to the extent set forth in the
Guarantee Agreement (the "Guarantee," and, together with the Preferred
Securities, the "Trust Securities"); and
(ii) Warrants issued by IndyMac Bancorp pursuant to the Warrant
Agreement;
WHEREAS, concurrently with the issuance of the Trust Securities, the
Trust will invest the proceeds thereof (together with the proceeds of the
issuance of the common securities of the Trust to IndyMac Bancorp) in
Debentures;
WHEREAS the Issuers have duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Trust Securities and the
Warrants;
WHEREAS, all things necessary to make the Preferred Securities, when the
Certificates are executed by the Trust and authenticated, executed on behalf of
the Trust and delivered by the Agent, as provided in this Agreement, the valid
obligations of the Trust, and to constitute these presents a valid agreement of
the Trust, in accordance with its terms, have been done; and
WHEREAS, all things necessary to make the Warrants and the Debentures,
when the Certificates are executed by IndyMac Bancorp and authenticated,
executed on behalf of the Trust and delivered by the Agent, as provided in this
Agreement, the valid obligations of IndyMac Bancorp, and to constitute these
presents a valid agreement of IndyMac Bancorp, in accordance with its terms,
have been done.
W I T N E S S E T H:
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed as
follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
SECTION 1.1. DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular,
and nouns and pronouns of the masculine gender include the feminine and
neutral genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Accreted Value" has the meaning given to it in the Trust Agreement.
"Act," when used with respect to any Holder, has the meaning given to it
in Section 1.4.
"Action Expiration Date" has the meaning given to it in Section 1.4(e).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for the beneficial interests in the Global Units, the rules and procedures
of the Depositary that apply to such transfer or exchange.
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"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Unit, a Person who is
the beneficial owner of such Book-Entry Interest as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Board of Directors" means the board of directors of IndyMac Bancorp or
a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of IndyMac Bancorp to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and
delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global Unit,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.7.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in The City of New York, New York, the City of Los
Angeles, California or Wilmington, Delaware are authorized or required by law or
executive order to remain closed or a day on which the Indenture Trustee, or the
principal office of the Property Trustee under the Trust Agreement, is closed
for business.
"Calculation Agent" means Valuation Research Corporation under the
Calculation Agreement, and any successor thereto.
"Calculation Agreement" means the Calculation Agency Agreement dated as
of November 14, 2001 between IndyMac Bancorp and the Calculation Agent, as
amended, supplemented or replaced from time to time.
"Certificate" means a certificate evidencing the rights and obligations
of a Holder in respect of the number of Securities specified on such
Certificate, substantially in the form of Exhibit A hereto.
"Change of Control" has the meaning given to it in the Trust Agreement.
"Change of Control Notice Date" has the meaning given to it in Section
5.3.
"Change of Control Redemption Right" has the meaning given to it in
Section 5.3.
"Change of Control Repurchase Right" has the meaning given to it in
Section 5.3.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose
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name, or in the name of a nominee of that organization, shall be registered a
Global Unit and which shall undertake to effect book entry transfers and pledges
of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $.01 per share, of
IndyMac Bancorp together, for the duration of the Company's Rights Plan, with
the associated rights to acquire shares of the Company's Series A Junior
Participating Preferred Stock.
"Corporate Trust Office" means the principal corporate trust office of
the Agent at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust
Administration.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially which rate, on and after the Remarketing
Date, will be the Reset Rate established in the Remarketing on the Remarketing
Date.
"Debenture Certificates" has the meaning given to it in Section 3.10.
"Debentures" means the 6% Junior Subordinated Deferrable Interest
Debentures due November 14, 2031 to be issued by IndyMac Bancorp pursuant to the
Indenture.
"Definitive Certificates" means definitive, physical fully registered
Certificates delivered in accordance with Section 3.10.
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Distribution Rate" has the meaning given to it in Section 5.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Electing Remarketing Holder" has the meaning given to it in Section
5.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Exchange Agent" has the meaning given to it in the Trust Agreement.
"Exercise Price" has the meaning given to it in the Warrant Agreement.
"Expiration Date" has the meaning given to it in the Warrant Agreement.
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"Global Unit" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Guarantee" has the meaning assigned to it in the Recitals hereto.
"Guarantee Agreement" means the Guarantee Agreement dated as of November
__, 2001 between IndyMac Bancorp and the Guarantee Trustee, as amended or
supplemented from time to time.
"Guarantee Trustee" means The Bank of New York, as trustee under the
Guarantee Agreement, or any successor thereto
"Holder," when used with respect to a Security, means the Person in
whose name the Security evidenced by a Certificate is registered in the
Register; provided, however, that in determining whether the Holders of the
requisite number of Securities have voted on any matter, and for the purpose of
such determination only (and not for any other purpose hereunder), if the
Security remains in the form of one or more Global Units and if the Clearing
Agency which is the holder of such Global Unit or Global Units has sent an
omnibus proxy assigning voting rights to the Clearing Agency Participants to
whose accounts the Securities are credited on the record date, the term "Holder"
shall mean such Clearing Agency Participants acting at the direction of the
Beneficial Owners.
"Indenture" means the Indenture, dated as of November 14, 2001, between
IndyMac Bancorp and the Indenture Trustee, as supplemented by the First
Supplemental Indenture, dated as of November 14, 2001, between IndyMac and the
Indenture Trustee, and as further amended and supplemented (including any
provisions of the TIA that are deemed incorporated therein), pursuant to which
the Debentures are to be issued.
"Indenture Trustee" means The Bank of New York, as trustee under the
Indenture, or any successor thereto.
"IndyMac Bancorp" means IndyMac Bancorp, Inc., a Delaware corporation,
until there shall be a successor thereto pursuant to the applicable provision of
this Agreement, and thereafter "IndyMac Bancorp" shall mean such successor.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of IndyMac Bancorp by its President or a Vice Chair or a
Senior Executive Vice President and by its Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Agent.
"Issuers" means, collectively, IndyMac Bancorp and the Trust.
"Legal Cause Remarketing Event" has the meaning given to it in the Trust
Agreement.
"Maturity Remarketing Date" has the meaning given to it in the Trust
Agreement.
"Notice of Remarketing" means a Notice of Remarketing delivered pursuant
to the Trust Agreement.
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"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President, the Chief Operating Officer, a Vice President,
the Chief Financial Officer, the Treasurer, the Chief Administrative Officer,
the Chief Accounting Officer and by the Secretary or an Assistant Secretary, of
IndyMac Bancorp, and delivered to the Agent. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the condition or covenant and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for IndyMac Bancorp (and who may be an employee of IndyMac Bancorp), and
who shall be reasonably acceptable to the Agent. An opinion of counsel may rely
on certificates as to matters of fact.
"Outstanding Securities" means, with respect to any Security, as of the
date of determination, all Securities evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) Securities evidenced by Certificates theretofore cancelled
by the Agent or delivered to the Agent for cancellation or deemed
cancelled pursuant to the provisions of this Agreement; and
(ii) Securities evidenced by Certificates in exchange for or in
lieu of which other Certificates have been authenticated, executed on
behalf of the Holder and delivered pursuant to this Agreement, other
than any such Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such Certificate is
held by a bona fide purchaser in whose hands the Security evidenced by
such Certificate are valid obligations of IndyMac Bancorp;
provided, however, that in determining whether the Holders of the requisite
number of the Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by IndyMac
Bancorp or any Affiliate of IndyMac Bancorp shall be disregarded and deemed not
to be Outstanding Securities, except that, in determining whether the Agent
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Agent knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith
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may be regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Agent the pledgee's right so to act with respect to such
Securities and that the pledgee is not IndyMac Bancorp or any Affiliate of
IndyMac Bancorp.
"Party" or "Parties" have the respective meanings given to such terms in
Section 12.1.
"Payment Date" means each February 1, May 1, August 1 and November 1,
commencing February 1, 2002.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a plan
or individual retirement account that is subject to Section 4975 of the Code or
any entity whose assets are considered assets of any such plan.
"Predecessor Certificate" of any particular Certificate means every
previous Certificate evidencing all or a portion of the rights and obligations
of the Issuers and the Holder under the Securities evidenced thereby; and, for
the purposes of this definition, any Certificate authenticated and delivered
under Section 3.11 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Certificate shall be deemed to evidence the same rights and obligations
of the Issuers and the Holder as the mutilated, destroyed, lost or stolen
Certificate.
"Preferred Securities" means the Preferred Securities of the Trust, each
having a stated liquidation amount of $50, representing preferred undivided
beneficial ownership interests in the assets of the Trust.
"Property Trustee" means Wilmington Trust Company, as property trustee
under the Trust Agreement, or any successor thereto.
"Record Date" with respect to any Payment Date, means the Business Day
immediately preceding such Payment Date.
"Register" and "Registrar" have the respective meanings given to them in
Section 3.5.
"Remarketing" has the meaning given to it in the Trust Agreement.
"Remarketing Agent" means the remarketing agent under the Remarketing
Agreement.
"Remarketing Agreement" means a Remarketing Agreement to be entered into
among IndyMac Bancorp, the Trust and the Remarketing Agent.
"Remarketing Date" has the meaning given to it in the Trust Agreement.
"Remarketing Event" has the meaning given to it in the Trust Agreement.
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"Remarketing Settlement Date" with respect to any Remarketing, means the
date which is two Business Days following the applicable Remarketing Date.
"Required Repurchase Date" has the meaning given to it in the Trust
Agreement.
"Reset Rate" has the meaning given to it in the Trust Agreement.
"Responsible Officer," when used with respect to the Agent, means any
officer within the corporate trust department of the Agent, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Agent who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Agreement.
"Rights Plan" means the Rights Agreement, dated as of October 17, 2001,
between the Company and The Bank of New York, as Rights Agent, or any other
similar agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security" means the collective rights and obligations of a Holder of a
Certificate in respect of a Preferred Security, a Debenture and a Warrant.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trading Remarketing Event" has the meaning given to it in the Trust
Agreement.
"Trust" means IndyMac Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware, or any successor thereto by merger or
consolidation.
"Trust Agreement" means the Amended and Restated Trust Agreement of
IndyMac Capital Trust I, dated as of November 14, 2001, among IndyMac Bancorp,
as the sponsor and debenture issuer, the trustees named therein and the holders
from time to time of undivided beneficial interests in the Trust.
"Trust Securities" has the meaning given to it in the Recitals hereto.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
"Warrant" means the Warrants issued by IndyMac Bancorp pursuant to the
Warrant Agreement representing the right to purchase Common Stock.
"Warrant Agent" means The Bank of New York, as warrant agent under the
Warrant Agreement, or any successor thereto.
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"Warrant Agreement" means the Warrant Agreement dated as of November 14,
2001 between IndyMac Bancorp and the Warrant Agent, as amended and supplemented,
pursuant to which the Warrants are issued.
"Warrant Value" has the meaning given to it in the Warrant Agreement.
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Agreement, upon any
application or request by IndyMac Bancorp to the Agent to take any action in
accordance with any provision of this Agreement, IndyMac Bancorp shall furnish
to the Agent an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been
complied with and, if requested by the Agent, an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO AGENT.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of IndyMac Bancorp may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or
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opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
IndyMac Bancorp stating that the information with respect to such factual
matters is in the possession of IndyMac Bancorp unless such counsel knows that
the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to IndyMac Bancorp.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and
IndyMac Bancorp, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Agent or
IndyMac Bancorp in reliance thereon, whether or not notation of such action is
made upon such Certificate.
(e) IndyMac Bancorp may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Securities, on such record date, and no other
Holders, shall be entitled to take the relevant action with respect to the
Securities, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Action Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent IndyMac Bancorp from setting a new record date for
any action for
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which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and be of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, IndyMac
Bancorp, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Agent in writing and to each Holder of Securities in the manner set forth in
Section 1.6.
With respect to any record date set pursuant to this Section, IndyMac
Bancorp may designate any date as the "Action Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Action
Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the existing
Action Expiration Date. If an Action Expiration Date is not designated with
respect to any record date set pursuant to this Section, IndyMac Bancorp shall
be deemed to have initially designated the 180th day after such record date as
the Action Expiration Date with respect thereto, subject to its right to change
the Action Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Action Expiration Date shall be later than the 180th day after the
applicable record date.
SECTION 1.5. NOTICES.
Any notice or communication is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Agent only upon receipt thereof:
If to the Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
If to IndyMac Bancorp:
IndyMac Bancorp, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
If to the Trust:
c/o IndyMac Bancorp, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No(626) 535-5063
Attention: Chief Financial Officer
If to the Warrant Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Property Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
If to the Indenture Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
SECTION 1.6. NOTICE TO HOLDERS; WAIVER.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
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SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.8. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by IndyMac Bancorp shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 1.10. BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Securities evidenced by their
Certificates by their acceptance of delivery of such Certificates.
SECTION 1.11. GOVERNING LAW.
This Agreement and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
SECTION 1.12. LEGAL HOLIDAYS.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or the Certificates)
payment of any amounts otherwise payable on such date shall not be made on such
date, but such payments shall be made on the next succeeding Business Day with
the same force and effect as if made on such Payment Date, provided that no
interest shall accrue or be payable for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
SECTION 1.13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
13
SECTION 1.14. INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder or Beneficial Owner.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1. FORMS OF CERTIFICATES GENERALLY; LEGENDS.
(a) Each Security will consist of one Preferred Security and one
Warrant. The Certificates shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers of IndyMac Bancorp executing the Securities evidenced by such
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
(b) Every Global Unit authenticated, executed on behalf of the Holders
and delivered hereunder shall bear a legend in substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR
A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE UNIT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A
TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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Every certificate (whether a Global Unit or a definitive certificate)
representing a Security shall bear a legend to the following effect:
THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO
TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT."
The Warrants and Preferred Securities which constitute components of the
Securities shall bear additional legends (including restrictions on
transferability) as described in the constituent documents for such
securities.
SECTION 2.2. FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION.
The form of the Agent's certificate of authentication of the Securities
shall be in substantially the form set forth on the form of the Certificates.
ARTICLE III
THE SECURITIES
SECTION 3.1. AMOUNT; FORM AND DENOMINATIONS.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 3,500,000 (or 4,000,000 if the Underwriter's over-allotment option is
exercised) except for Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Certificates
pursuant to Section 3.4, 3.5, 3.10, 3.13 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof.
On the date of issuance of the Units, IndyMac Bancorp shall allocate
$34.49 of the purchase price thereof to the Preferred Securities and $15.51 of
the purchase price to the Warrants.
SECTION 3.2. RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES.
Each Certificate shall evidence the number of Securities specified
therein, with each such Security representing the ownership by the Holder
thereof of a beneficial interest in a Preferred Security (or a Debenture upon a
dissolution and liquidation of the Trust) and a Warrant and entitled to the
benefits of the Trust Agreement, the Indenture, the Warrant Agreement and all
agreements ancillary thereto.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Subject to the provisions of Section 3.6 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
IndyMac Bancorp and the Trust may deliver Certificates executed by IndyMac
Bancorp and an Administrative Trustee on behalf
15
of the Trust to the Agent for authentication, execution and delivery, together
with its Issuer Order for authentication of such Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Agent shall be entitled to receive, and, shall be fully
protected in relying upon:
(a) a copy of the Board Resolution or Board Resolutions in or
pursuant to which the terms and form of the Securities were established,
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force
and effect as of the date of such certificate, and if the terms and form
of such Securities are established by an Officers' Certificate pursuant
to general authorization of the Board of Directors, such Officers'
Certificate;
(b) an Officers' Certificate delivered in accordance with
Section 1.3; and
(c) an Opinion of Counsel which shall state:
(1) that the terms of such Securities have been
established in accordance with Section 2.1 and in conformity
with the other provisions of this Agreement;
(2) that such Securities, when authenticated and
delivered by the Agent and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles; and
(3) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have
been complied with.
The Agent shall have the right to decline to authenticate and deliver
any Securities under this Section if the Agent, being advised by counsel,
determines that such action may not lawfully be taken or if the Agent in good
faith shall determine that such action would expose the Agent to personal
liability to existing Holders.
The Certificates shall be executed on behalf of IndyMac Bancorp (in
respect of the Warrants) any two of the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, the Chief Operating Officer, a Vice President,
the Chief Financial Officer, the Treasurer, the Chief Administrative Officer,
the Chief Accounting Officer, the Secretary or an Assistant Secretary of the
Sponsor), and shall be executed on behalf of the Trust (in respect of the
Preferred Securities) by an Administrative Trustee. The signature of any of
these officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of IndyMac Bancorp shall bind IndyMac
Bancorp, notwithstanding that
16
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. Certificates bearing the manual or facsimile
signatures of individuals who were at any time Administrative Trustees of the
Trust shall bind the Trust, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of such Certificates.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
SECTION 3.4. TEMPORARY CERTIFICATES.
Pending the preparation of definitive Certificates, IndyMac Bancorp
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holders, and deliver, in lieu of such definitive
Certificates, temporary Certificates which are in substantially the form set
forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed, or as may, consistently
herewith, be determined by the officers of IndyMac Bancorp executing such
Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, IndyMac Bancorp shall cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of IndyMac Bancorp
and without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Certificates, IndyMac Bancorp shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver in exchange therefor, one or more definitive Certificates of like tenor
and denominations and evidencing a like number of Securities as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the temporary
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Securities evidenced thereby as definitive
Certificates.
SECTION 3.5. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Agent shall keep at the Corporate Trust Office a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Certificates and of
transfers of Certificates (the Agent, in such capacity, the "Registrar").
No beneficial interest in a Warrant or a Preferred Security that is a
component of a Security represented by a Certificate may be transferred or
exchanged until such components
17
have been separated in accordance with Section 3.6 hereof, and each Certificate
shall bear a legend to that effect.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, IndyMac Bancorp and the Trust shall execute and deliver
to the Agent, and the Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of any authorized
denominations, like tenor, and evidencing a like number of Securities.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Securities upon surrender of the Certificates to be exchanged at the Corporate
Trust Office. Whenever any Certificates are so surrendered for exchange, IndyMac
Bancorp and the Trust shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of
a Certificate shall evidence the ownership of the same number of Securities, and
be entitled to the same benefits and subject to the same obligations, under this
Agreement as the Securities evidenced by the Certificate surrendered upon such
registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to IndyMac
Bancorp, the Trust and the Agent duly executed, by the Holder thereof or its
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but IndyMac Bancorp and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.6, 3.7
and 8.5 not involving any transfer and the Trust.
Notwithstanding the foregoing, IndyMac Bancorp and the Trust shall not
be obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Certificate in exchange for any other Certificate presented or surrendered for
registration of transfer or for exchange on or after the Business Day
immediately preceding the Expiration Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall deliver the consideration received on such
Expiration Date (which may be shares of Common Stock issuable in respect of the
exercise of Warrants forming a part of the Securities evidenced by such other
Certificate, Warrant Value receivable upon a redemption of such Warrants or
Remarketing Proceeds receivable upon a contemporaneous remarketing of the
Preferred Securities forming a part of the Securities evidenced by such other
Certificate), subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
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SECTION 3.6. SEPARATION AND REJOINING OF UNITS.
Each Global Unit shall represent such of the outstanding Securities as
shall be specified in the "Schedule of Exchanges of Interests of Global Unit"
attached thereto or otherwise in accordance with the Applicable Procedures. At
any time after issuance, the Preferred Security and Warrant components of any
Security may be separated by the Holder and thereafter transferred separately
and (i) in the event of an election to exercise the Warrant component prior to
the Remarketing Settlement Date (as provided in Section 5.2), (ii) in the event
of an election to have Warrants redeemed or Preferred Securities repurchased
upon a Change of Control (in each case, pursuant to Section 5.3) or (iii) in the
event of a Remarketing, the Preferred Security and Warrant components of any
Security shall be separated. In the event of any separation of the components of
a Security, (i) if such Security is represented by a Definitive Certificate, the
Holder shall present such Definitive Certificate to the Agent for cancellation
and the Agent shall so notify the Registrar and shall return the Preferred
Security and Warrant components of such Security to the Registrar and Transfer
Agent for the Preferred Securities pursuant to the Trust Agreement (the "Trust
Agreement Registrar") and Warrant Agent, respectively, with an instruction for
them to countersign and deliver to, or upon the instruction of, such Holder a
separated Preferred Security and a separated Warrant, bearing the separate CUSIP
number assigned to the Preferred Security and the Warrant, respectively, and
(ii) if such Security is represented by the Global Unit, the Agent shall make
the necessary endorsement to the "Schedule of Exchanges of Interests of Global
Unit attached to the Global Unit or otherwise comply with the Applicable
Procedures to reduce the amount of Securities represented thereby and shall
instruct the Trust Agreement Registrar and the Warrant Agent to effect a
corresponding increase in the Preferred Securities and the Warrants,
respectively, represented by global certificates bearing separate CUSIP numbers.
The Agent shall make such other necessary endorsements to the Global Unit
consistent with the terms of this agreement to reflect the appropriate number of
Securities represented thereby.
Following a Remarketing of the Preferred Securities component of a
Security, (i) if such Security is represented by a Definitive Certificate, the
Holder shall present such Definitive Certificate to the Agent for cancellation
and the Agent shall so notify the Registrar and shall return the Preferred
Security and Warrant components of such Security to the Trust Agreement
Registrar with an instruction for it to countersign and deliver to, or upon the
instruction of the Remarketing Agent a Preferred Security bearing the separate
CUSIP number assigned to the Preferred Security and (ii) if such Security is
represented by the Global Unit, the Agent shall, in accordance with the
instructions of the Remarketing Agent, make the necessary endorsement to the
"Schedule of Exchanges of Interests of Global Unit" attached to the Global Unit
or otherwise comply with the Applicable Procedures to reduce the amount of
Securities represented thereby and shall instruct the Trust Agreement Registrar
to effect a corresponding increase in the Preferred Securities represented by
global certificates bearing the separate CUSIP number. The Agent shall make such
other necessary endorsements to the Global Unit consistent with the terms of
this agreement to reflect the appropriate number of Securities represented
thereby.
Once separated in accordance with Section 5.2, a Preferred Security and
a Warrant may be joined to form a Security, whether or not such securities were
at one time components of the same Security. In the event a holder of a
Preferred Security and a Warrant desires to join them and create a Security, (i)
if the constituent components are represented by Definitive Certificates,
19
the holder shall present (x) the Preferred Security to the Trust Agreement
Registrar and (y) the Warrant to the Warrant Agent, in each case for
cancellation and the Trust Agreement Registrar and the Warrant Agent shall so
notify the Agent, who shall in turn so notify the Registrar with an instruction
for the Registrar to countersign and deliver to, or upon the instruction of,
such holder a Security bearing the separate CUSIP number assigned to the
Securities, respectively, and (ii) if the constituent components are represented
by global certificates, each of the Trust Agreement Registrar and the Warrant
Agent shall make the necessary endorsement to their respective global
certificates or otherwise comply with the Applicable Procedures to reduce the
amount of Preferred Securities and Warrants, respectively, represented thereby
and shall instruct Agent to effect a corresponding increase in the Securities
represented by the Global Unit bearing separate CUSIP number. The Agent, the
Trust Agreement Registrar, and the Warrant Agent shall make such other necessary
endorsements to their respective global certificates consistent with the terms
of this agreement to reflect the appropriate number of Securities, Preferred
Securities and Warrants, as appropriate, represented thereby.
The Agent is authorized to deliver such further directions to the Trust
Agreement Registrar, the Warrant Agent, the Exchange Agent and others, and to
take such further actions as shall be necessary to effect the exchanges,
separations, transfer and recreations contemplated by Section 3.5 and 3.6. If no
Trust Agreement Registrar has been appointed under the Trust Agreement, the
Property Trustee shall act as Trust Agreement Registrar for the purposes of this
Section 3.6.
SECTION 3.7. BOOK-ENTRY INTERESTS.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Units, to be delivered to the Depositary by,
or on behalf of, IndyMac Bancorp and the Trust. Such Global Unit shall initially
be registered on the books and records of IndyMac Bancorp and the Trust (in
respect of the Warrant and Preferred Securities components of the Securities,
respectively) in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a Definitive Certificate representing such
Beneficial Owner's interest in such Global Unit, except as provided in Section
3.10. The Agent shall enter into an agreement with the Depositary if so
requested by IndyMac Bancorp. Unless and until Definitive Certificates have been
issued to Beneficial Owners pursuant to Section 3.10:
(a) the provisions of this Section 3.7 shall be in full force
and effect;
(b) IndyMac Bancorp shall be entitled to deal with the Clearing
Agency for all purposes of this Agreement as the Holder of the
Securities and the sole holder of the Global Unit(s) and shall have no
obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of
this Section 3.7 shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants.
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SECTION 3.8. NOTICES TO HOLDERS.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, IndyMac Bancorp or IndyMac Bancorp's agent shall
give such notices and communications to the Holders and, with respect to any
Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, IndyMac Bancorp or IndyMac Bancorp's agent shall, except as set
forth herein, have no obligations to the Beneficial Owners.
SECTION 3.9. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, IndyMac Bancorp may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
SECTION 3.10. DEFINITIVE CERTIFICATES.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 3.9 or (ii) there shall have occurred and be continuing a default by
IndyMac Bancorp in respect of its obligations under the Warrant Agreement, the
Indenture, the Trust Agreement or this Agreement, upon surrender of the Global
Units representing the Securities by the Clearing Agency, accompanied by
registration instructions, IndyMac Bancorp and the Trust shall cause Definitive
Certificates to be delivered to Beneficial Owners in accordance with the
instructions of the Clearing Agency. IndyMac Bancorp shall not be liable for any
delay in delivery of such instructions and may conclusively rely on and shall be
protected in relying on, such instructions.
SECTION 3.11. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.
If any mutilated Certificate is surrendered to the Agent, IndyMac
Bancorp and the Trust shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Certificate, evidencing the same number of Securities and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to IndyMac Bancorp, the Trust and the Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity as may be required by them to
hold each of them and any agent of any of them harmless, then, in the absence of
notice to IndyMac Bancorp and the Trust or the Agent that such Certificate has
been acquired by a bona fide purchaser, IndyMac Bancorp and the Trust shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed,
lost or stolen Certificate, a new Certificate, evidencing the same number of
Securities and bearing a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, neither IndyMac Bancorp nor the Trust
shall be obligated to execute and deliver to the Agent, and the Agent shall not
be obligated to authenticate, execute on behalf of the Holder, and deliver to
the Holder, a Certificate on or after the Business Day immediately preceding the
Expiration Date. In lieu of delivery of a new Certificate, upon
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satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Agent shall deliver the consideration received on such Expiration Date
(which may be (i) shares of Common Stock issuable in respect of the exercise of
Warrants pursuant to the Warrant Agreement, (ii) the Warrant Value receivable
upon a redemption of such Warrants pursuant to the Warrant Agreement or (iii)
proceeds of a Remarketing receivable upon a contemporaneous remarketing of the
Preferred Securities forming a part of the Securities evidenced by such other
Certificate as provided in the Trust Agreement).
Upon the issuance of any new Certificate under this Section, IndyMac
Bancorp, the Trust and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of IndyMac Bancorp and the Trust and of the Holder in
respect of the Security evidenced thereby, whether or not the destroyed, lost or
stolen Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.12. PERSONS DEEMED OWNERS.
Prior to due presentment of a Certificate for registration of transfer,
IndyMac Bancorp, the Trust and the Agent, and any agent of IndyMac Bancorp, the
Trust or the Agent, may treat the Person in whose name such Certificate is
registered as the owner of the Security evidenced thereby, for the purpose of
receiving payments on the Preferred Securities, the Debentures or the Warrants
and for all other purposes whatsoever, whether or not any payments on the
Preferred Securities, the Debentures or the Warrants shall be overdue and
notwithstanding any notice to the contrary, and none of IndyMac Bancorp, the
Trust, the Agent, or any agent of IndyMac Bancorp or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit, nothing
herein shall prevent IndyMac Bancorp, the Agent or any agent of IndyMac Bancorp,
the Trust or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Clearing Agency (or its nominee), as a
Holder, with respect to such Global Unit or impair, as between such Clearing
Agency and owners of beneficial interests in such Global Unit, the operation of
customary practices governing the exercise of rights of such Clearing Agency (or
its nominee) as Holder of such Global Unit.
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SECTION 3.13. CANCELLATION.
All Certificates surrendered (i) for separation as provided in Section
3.6 hereof, (ii) in connection with a remarketing and redemption as provided in
the Trust Agreement, the Warrant Agreement and Article V hereof or (iii) upon
the transfer of Preferred Securities, Debentures or Warrants upon the
registration of a transfer or exchange of a Security or any of its components
shall, if surrendered to any Person other than the Agent, be delivered to the
Agent and, if not already cancelled, shall be promptly cancelled by it. IndyMac
Bancorp and the Trust may at any time deliver to the Agent for cancellation any
Certificates previously authenticated, executed and delivered hereunder which
IndyMac Bancorp and the Trust may have acquired in any manner whatsoever, and
all Certificates so delivered shall, upon Issuer Order, be promptly cancelled by
the Agent. No Certificates shall be authenticated, executed on behalf of the
Holder and delivered in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
cancelled Certificates held by the Agent shall be held by the Agent or returned
to IndyMac Bancorp pursuant to an Issuer Order.
If IndyMac Bancorp, the Trust or any Affiliate of IndyMac Bancorp shall
acquire any Certificate, such acquisition shall not operate as a cancellation of
such Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
SECTION 3.14. CUSIP NUMBERS.
IndyMac Bancorp, in issuing the Securities, may use CUSIP numbers (if
then generally in use), and, if so, the Agent 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 Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. IndyMac Bancorp will promptly
notify the Agent of any change in the CUSIP numbers.
SECTION 3.15. SPECIAL TRANSFER PROVISIONS.
Upon any exchange or transfer of all or a portion of any Global Unit for
a certificated Security, the Global Unit from which an interest is to be so
exchanged or transferred will be marked to reflect the reduction of its
principal amount or number, as applicable, by the aggregate principal amount or
number of such certificated Security. Until so exchanged or transferred in full,
such Global Unit will in all respects be entitled to the same benefits under
this Indenture as the Units authenticated and delivered hereunder.
The Registrar shall retain for at least two years copies of all letters,
notices and other written communications received pursuant to Section 2.16
hereof or this Section 2.17. The Issuers shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
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ARTICLE IV
THE PREFERRED SECURITIES
SECTION 4.1. PAYMENT OF DISTRIBUTION; RIGHTS TO DISTRIBUTIONS PRESERVED;
DISTRIBUTION RATE RESET.
Distributions on the Preferred Securities which are made on any Payment
Date shall, subject to receipt thereof by the Agent, be payable to the Holders
as they appear on the books and records of the Agent at the close of business on
the relevant Record Dates. Distributions on the Preferred Securities which are
made on any Remarketing Settlement Date shall, subject to receipt thereof by the
Agent, be payable to (or, in the case of Section 5.1, for the account of) the
Holders as they appear on the books and records of the Agent at the close of
business on the Remarketing Date. If the Securities are represented by one or
more Global Units, the relevant Record Dates shall be the close of business on
the Business Day preceding the corresponding Payment Date, unless a different
Record Date is established or provided for the corresponding distributions on
the Preferred Securities. If the Securities are not represented by one or more
Global Units, the relevant Record Dates shall be at least one Business Day prior
to the corresponding Payment Dates, or such other dates as may be selected by
the Agent.
Each Certificate evidencing Preferred Securities (or Debentures)
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Certificate shall carry the rights to distributions
accumulated and unpaid, and to accumulate distributions, which were carried by
the Preferred Securities (or Debentures) underlying such other Certificate.
The applicable Coupon Rate on the Debentures on and after the
Remarketing Date shall be equal to the Reset Rate established in the Remarketing
on such date.
SECTION 4.2. NOTICE AND VOTING.
The Agent shall be entitled to exercise the voting and any other
consensual rights pertaining to the Preferred Securities, Debentures and
Warrants, as the case may be, but only to the extent instructed in writing by
the Holders as described below and in Article V. Upon receipt of notice of any
meeting at which holders of Preferred Securities, Debentures or Warrants are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Preferred Securities, Debentures or Warrants, the Agent shall, as
soon as practicable thereafter, mail to the Holders of Securities a notice (a)
containing such information as is contained in the notice or solicitation, (b)
stating that each Holder on the record date set by the Agent therefor (which, to
the extent possible, shall be the same date as the record date for determining
the holders of Preferred Securities, Debentures or Warrants, as the case may be,
entitled to vote) shall be entitled to instruct the Agent as to the exercise of
the voting rights pertaining to such Preferred Securities, Debentures or
Warrants underlying their Security and (c) stating the manner in which such
instructions may be given. Upon the written request of the Holders of Securities
on such record date received by the Agent at least six days prior to such
meeting, the Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Securities, Debentures or Warrants, as the case may
be, as to which any particular voting instructions are received. In the absence
of
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specific instructions from the Holder of a Security, the Agent shall abstain
from voting the Preferred Securities, Debentures or Warrants underlying such
Security. IndyMac Bancorp hereby agrees to solicit Holders of Securities to
timely instruct the Agent in order to enable the Agent to vote such Preferred
Securities, Debentures or Warrants and the Trust shall covenant to such effect
in the Trust Agreement.
SECTION 4.3. DISTRIBUTION OF DEBENTURES.
Upon the dissolution and liquidation of the Trust in accordance with the
Trust Agreement, a principal amount at maturity of Debentures constituting the
assets of the Trust and underlying the Preferred Securities equal to the
aggregate stated liquidation amount of the Preferred Securities shall be
delivered to the Agent in exchange for the Preferred Securities. Thereafter, the
Debentures will be substituted for the Preferred Securities as a component of
the Securities. Following the dissolution and liquidation of the Trust, the
Holders shall have such rights and obligations with respect to the Debentures as
the Holders had with respect to the Preferred Securities. IndyMac Bancorp may
cause to be made in any Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate to reflect the
dissolution and liquidation of the Trust and the substitution of Debentures for
Preferred Securities.
ARTICLE V
REMARKETING AND REDEMPTION; EARLY EXERCISE
SECTION 5.1. REMARKETING AND REDEMPTION.
Pursuant to a Remarketing Agreement to be entered into, IndyMac Bancorp
will engage a Remarketing Agent to sell the Preferred Securities (or, if the
Debentures have been distributed upon liquidation of the Trust, the Debentures)
upon the occurrence of a Remarketing Event. In connection with a Remarketing of
the Preferred Securities:
(i) upon a Trading Remarketing Event or a Legal Cause
Remarketing Event, the Accreted Value of the Debentures as of the end of
the day on the day next preceding the Remarketing Date shall become due
on the date which is 60 days following the Remarketing Date, and, as a
result, the Accreted Value of the Preferred Securities as of the end of
the day on the day next preceding the Remarketing Date shall be redeemed
on the date which is 60 days following the Remarketing Date;
(ii) on the Remarketing Date, the rate of interest per annum on
the Accreted Value of the Debentures shall be changed to the Reset Rate
established in the Remarketing of the Preferred Securities, and the
"Distribution Rate" per annum on the Accreted Value of the Preferred
Securities shall be changed to the Reset Rate established in the
Remarketing;
(iii) on the Remarketing Settlement Date, interest accrued and
unpaid on the Debentures from and including the immediately preceding
Interest Payment Date to, but excluding, the Remarketing Settlement Date
shall be payable to the holders of the Debentures, and Distributions
accumulated and unpaid on the Securities from and
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including the immediately preceding Distribution Date to, but excluding,
the Remarketing Settlement Date shall be payable to the Holders of the
Securities;
(iv) in connection with a Remarketing upon a Trading Remarketing
Event or a Legal Cause Remarketing Event, IndyMac Bancorp shall be
obligated to redeem the Warrants on the Remarketing Settlement Date at a
redemption price per Warrant equal to the Warrant Value as of the end of
the day on the day next preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall be
exercisable at the Exercise Price.
Upon receipt from IndyMac Bancorp of a Notice of Remarketing as provided
in the Trust Agreement and of a notice of a Redemption as provided in the
Warrant Agreement, the Agent shall, as soon as practicable thereafter, mail to
the Holders of Securities a notice of such receipt, together with a copy of each
such notice.
IN THE ABSENCE OF AN AFFIRMATIVE ELECTION NOT TO PARTICIPATE IN THE
REMARKETING, EACH HOLDER WILL BE DEEMED TO HAVE ELECTED TO PARTICIPATE
IN SUCH REMARKETING AND, IF APPLICABLE, TO HAVE ITS WARRANTS REDEEMED ON
THE RELATED REMARKETING SETTLEMENT DATE AT THE WARRANT VALUE.
Each Holder of a Security who desires NOT to participate in the
Remarketing shall notify the Agent of such intention by use of a notice in
substantially the form of Exhibit B hereto. Such notice shall be given to the
Agent prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Remarketing Date specified in the Notice of Remarketing. A Holder
of a Security must affirmatively elect NOT to participate in a Remarketing on or
prior to 5:00 p.m. New York City time on the Business Day immediately preceding
the Remarketing Date. Subject to the next paragraph, an election by a Holder NOT
to participate in the Remarketing will not alter the deemed election by such
Holder to have its Warrants redeemed on the Remarketing Settlement Date. Any
such notice shall be irrevocable and may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing. The Agent, based on such
notices, shall notify the Remarketing Agent, promptly after 5:00 p.m., New York
City time (or such other time as may be agreed by the Agent, IndyMac Bancorp,
the Trust and the Remarketing Agent), on the Business Day immediately preceding
the Remarketing Date, of the aggregate number of Preferred Securities (or, if
the Debentures have been distributed in connection with a liquidation of the
Trust, the Debentures) that are a component of Securities to be remarketed. Upon
receipt of such notice from the Agent, the Remarketing Agent shall, on the
Remarketing Date, use commercially reasonable efforts to remarket such Preferred
Securities (or Debentures) on such date at a price equal to: (i) in connection
with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing
Event, 100% of the aggregate Accreted Value of such Preferred Securities (or
Debentures) as of the end of the day on the day next preceding the Remarketing
Date; and (ii) on the Maturity Remarketing Date, 100% of the stated liquidation
amount (or principal amount).
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Each Holder of a Security who desires to exercise its Warrants on the
Remarketing Settlement Date at the Exercise Price per Warrant described in
clause (v) above in this Section 5.1, instead of having such Warrants redeemed
on such date, shall notify the Agent and the Warrant Agent of such intention by
use of a notice in substantially the form of Exhibit C hereto. Such notice shall
be given to the Agent and the Warrant Agent prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Remarketing Settlement Date
specified in the related Notice of Remarketing. As provided above, any Holder
who does not notify the Agent and the Warrant Agent of an election to exercise
its Warrants on the Warrant Settlement Date shall be deemed to have elected to
have such Warrants redeemed. Upon receipt of the foregoing notices the Agent
shall provide notice to the Warrant Agent, promptly after 5:00 p.m., New York
City time(or such other time as may be agreed by the Agent, IndyMac Bancorp, the
Trust and the Remarketing Agent), on the Business Day immediately preceding the
related Remarketing Settlement Date specified in the related Notice of
Remarketing, of the number of Warrants to be exercised and shall, promptly after
5:00 p.m., New York City time, on the Remarketing Settlement Date, deliver to
the Warrant Agent a duly completed form of election to purchase set forth on the
reverse side of the Warrant Certificate, a form of which is attached to the
Global Unit, together with the proceeds of the Remarketing referred to in the
following paragraph. Upon receipt of the Common Stock deliverable upon exercise
of the Warrants, the Warrant Agent shall deliver such shares to or upon the
order of the Agent.
Each Holder who elects to participate in the Remarketing and to exercise
its Warrants on the related Remarketing Settlement Date is referred to as an
"Electing Remarketing Holder." The Agent shall instruct the Remarketing Agent to
deliver the proceeds from the Remarketing of Preferred Securities of each
Electing Remarketing Holder to the Warrant Agent, and the Warrant Agent shall
apply such amounts to satisfy in full such Holders' obligation to pay the
Exercise Price for the Common Stock under the related Warrants on the
Remarketing Settlement Date. Any Holder (other than an Electing Remarketing
Holder) of a Security affirmatively electing to exercise Warrants on the
Remarketing Settlement Date may do so by following the procedures set forth in
Section 5.2 and in the Warrant Agreement. The proceeds from a redemption of the
Warrants which form a part of the Securities shall be paid to the Holders of
such Securities.
The Trust Agreement provides that if, by 4:00 p.m., New York City time,
on a Remarketing Date, the Remarketing Agent is unable to remarket all of the
Preferred Securities deemed tendered for purchase, a "Failed Remarketing" shall
be deemed to have occurred and the Remarketing Agent shall so advise by
telephone the Clearing Agency, the Property Trustee, the Warrant Agent, the
Indenture Trustee, the Administrative Trustees on behalf of the Trust and
IndyMac Bancorp. IndyMac Bancorp shall then give notice of the Failed
Remarketing to the Agent no later than 12:00 noon, New York City time, on the
Business Day following the Failed Remarketing and the Agent will, in turn, give
notice to the Holders of the Preferred Securities prior to the close of business
on the Business Day following the Failed Remarketing. Notice of a Failed
Remarketing shall be deemed to constitute a withdrawal of each previously
delivered election to exercise Warrants on the related Remarketing Settlement
Date. Following any such withdrawal a holder may still elect to exercise its
Warrants in accordance with the procedures specified in Section 3.6 hereof and
in the Warrant Agreement.
Upon the occurrence of a Trading Remarketing Event or a Legal Cause
Remarketing Event and the election by IndyMac Bancorp to cause a Remarketing of
the Preferred Securities,
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and on the Maturity Remarketing Date, as long as the Securities are evidenced by
one or more Global Units, deposited with the Clearing Agency, IndyMac Bancorp
shall request, not later than four nor more than 20 days prior to the
Remarketing Date, that the Clearing Agency notify the Holders of the Securities
of the Remarketing of the Preferred Securities and of the procedures that must
be followed if such Holder of Securities wishes to elect not to participate in
the Remarketing of the Preferred Securities.
SECTION 5.2. EARLY EXERCISE OF WARRANTS; EXCHANGE OF PREFERRED SECURITIES AND
REPURCHASE OF DEBENTURES.
A Holder of a Security may elect to exercise the Warrants which form a
part of such Security at any time in accordance with the terms of the Warrant
Agreement. Each Holder, other than an Electing Remarketing Holder, who desires
to exercise its Warrants shall, prior to any such exercise, separate the Warrant
and the Preferred Security components of the Security in accordance with Section
3.6. In no event may a Holder satisfy its obligation to pay the Exercise Price
by tendering Preferred Securities.
Following the exercise of a Warrant on a day other than the Remarketing
Settlement Date, the Holder of the Security of which such Warrant formed a part
may require the Trust to exchange the Preferred Securities which formed the
other part of such Security for Debentures having an Accreted Value equal to the
Accreted Value of the Preferred Securities being exchanged and to require
IndyMac Bancorp to repurchase such Debentures on the applicable Required
Repurchase Date which is no less than 60 days from such exercise date, as
specified in the Trust Agreement.
SECTION 5.3. CHANGE IN CONTROL.
(a) Following a Change in Control, each Holder will have the right to
(i) require the Trust to distribute to such Holder Debentures having an Accreted
Value equal to Accreted Value of the Preferred Securities components of such
Holder's Securities in exchange for its Preferred Securities and (ii) cause
IndyMac Bancorp to repurchase (a "Change of Control Repurchase Right") such
Holder's Debentures and redeem (a "Change of Control Redemption Right") such
Holder's Warrants at the amounts and on the dates specified in the Warrant
Agreement, the Trust Agreement and the Indenture, as applicable.
(b) Upon receipt from IndyMac Bancorp of notice of a Change of Control
(as provided in the Trust Agreement and the Warrant Agreement), the Agent shall,
as soon as practicable thereafter, mail to the Holders of Securities a notice of
such receipt, together with a copy of such notice of Change of Control. The date
specified in the notice from IndyMac Bancorp will be the "Change of Control
Notice Date."
(c) The following procedures shall apply to the exercise, if any, of a
Change of Control Repurchase Right or Change of Control Redemption Right:
(i) Warrants. To exercise the Change of Control Redemption
Right, a Holder must deliver to the Agent, prior to the 30th day
following the Change of Control Notice Date, irrevocable written notice
in the form of Exhibit D hereto, of such Holder's election to have
Warrants redeemed on the date specified in the Warrant Agreement. The
Agent,
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based on such notices, shall notify the Warrant Agent no later than the
30th day following the Change in Control Notice Date of the aggregate
number of Warrants to be redeemed. An election to have Warrants redeemed
shall also constitute an election to separate the related Securities
into their component parts and the Agent and the Warrant Agent shall
follow the procedures specified in Section 3.6.
(ii) Preferred Securities. To exercise the Change of Control
Repurchase Right, a Holder who has not separated its Securities pursuant
to clause (a) above must deliver to the Agent, no earlier than the 60th
and no later than the 90th day following the Change of Control Notice
Date, irrevocable written notice in the form of Exhibit E hereto, of
such Holder's election to have Preferred Securities components of its
Securities exchanged for an equivalent Accreted Value of Debentures and
to have such Debentures repurchased on the date specified in the
Indenture. The Agent, based on such notices, shall notify the Trust,
IndyMac Bancorp, the Property Trustee and the Exchange Agent, no later
than the 90th day following the Change of Control Notice Date of the
aggregate number of Preferred Securities to be exchanged for Debentures
by the Trust and to be repurchased by IndyMac Bancorp. An election to
exchange Preferred Securities for Debentures and to have such Debentures
repurchased by IndyMac Bancorp shall also constitute an election to
separate the related Securities into their component parts and the
Agent, the Exchange Agent and the Property Trustee shall follow the
procedures specified in Section 3.6 hereof and Section 6.8 of the Trust
Agreement.
SECTION 5.4. CERTAIN RIGHTS FOLLOWING A REMARKETING.
Following a Remarketing Settlement Date (unless there has been a "Failed
Remarketing" under the Trust Agreement) and a Redemption or exercise of the
Warrants (including the delivery of all shares of Common Stock pursuant to the
exercise of a Warrant or the payment of the Warrant Value payable upon the
related Redemption and the payment of any amounts payable upon the related
Remarketing), a Security shall thereafter represent the right to receive the
Preferred Securities (or if the Debentures have been distributed upon
dissolution and liquidation of the Trust, the Debentures) forming a component
part of such Securities.
ARTICLE VI
REMEDIES
SECTION 6.1. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENTS AND TO PURCHASE
COMMON STOCK.
The Holder of any Security shall have all the rights provided to a
holder of Preferred Securities under the Trust Agreement and to a holder of
Warrants under the Warrant Agreement, including the right to institute suit for
the enforcement of any such payments or obligations thereunder, and such rights
shall not be impaired except as provided in the Trust Agreement and the Warrant
Agreement.
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SECTION 6.2. RESTORATION OF RIGHTS AND REMEDIES.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, IndyMac
Bancorp and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.3. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.11, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.4. DELAY OR OMISSION NOT WAIVER.
No delay or omission of any Holder to exercise any right or remedy upon
a default shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
SECTION 6.5. UNDERTAKING FOR COSTS.
All parties to this Agreement agree, and each Holder of a Security, by
its acceptance of such Security shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Agent for any action
taken, suffered or omitted by it as Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by
IndyMac Bancorp, to any suit instituted by the Agent, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of distributions on any Preferred Securities on or after the
respective Payment Date therefor in respect of any Security held by such Holder,
or for enforcement of the right to purchase shares of Common Stock under the
Warrants constituting part of any Security held by such Holder.
SECTION 6.6. WAIVER OF STAY OR EXTENSION LAWS.
IndyMac Bancorp covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or
30
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Agreement; and IndyMac Bancorp (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Agent or the Holders, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
THE AGENT
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Agent; and
(1) in the absence of bad faith or negligence on its
part, the Agent may, with respect to the Securities,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Agent and conforming to the
requirements of this Agreement but in the case of any
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the Agent
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Agent was negligent in ascertaining the
pertinent facts;
(3) no provision of this Agreement shall require the
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it; and
(4) no provision of this Agreement shall require the
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
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(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to
the provisions of this Section.
SECTION 7.2. NOTICE OF DEFAULT.
Within 30 days after the occurrence of any default by IndyMac Bancorp
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to IndyMac Bancorp and the Holders of Securities,
as their names and addresses appear in the Register, notice of such default
hereunder, unless such default shall have been cured or waived.
SECTION 7.3. CERTAIN RIGHTS OF AGENT.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of IndyMac Bancorp mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors of
IndyMac Bancorp may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate of IndyMac
Bancorp;
(d) the Agent may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of IndyMac Bancorp, personally or by agent
or attorney at the sole cost of IndyMac Bancorp, and shall incur no
liability or additional liability of any kind by reason of such inquiry
or investigation;
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(f) the Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys or an Affiliate and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder;
(g) with respect to the calculation of the Accreted Value and
the Warrant Value, the Agent may conclusively rely upon the calculations
thereof determined by the Calculation Agent;
(h) the Agent shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(i) the Agent shall not be deemed or have notice of any Default
or Event of Default unless a Responsible Officer of the Agent has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Agent at the Corporate Trust Office of
the Agent, and such notice references the Securities and this Agreement;
and
(j) the rights, privileges, protections, immunities and benefits
given to the Agent, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Agent in
each of its capacities hereunder including, without limitation, in its
capacities as Warrant Agent and as Agent hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Certificates shall be taken as
the statements of IndyMac Bancorp, and the Agent assumes no responsibility for
their accuracy. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Securities.
The Agent shall not be accountable for the use or application by IndyMac
Bancorp of Securities or the proceeds thereof.
SECTION 7.5. MAY HOLD SECURITIES.
Any Registrar or any other agent of IndyMac Bancorp, or the Agent and
its Affiliates, in their individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with IndyMac Bancorp or any
other Person with the same rights it would have if it were not Registrar or such
other agent, or the Agent.
SECTION 7.6. MONEY HELD IN CUSTODY.
Money held by the Agent in custody hereunder need not be segregated from
the other funds except to the extent required by law or provided herein. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with IndyMac
Bancorp.
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SECTION 7.7. COMPENSATION AND REIMBURSEMENT.
IndyMac Bancorp agrees:
(1) to pay to the Agent from time to time such compensation as
shall from time to time be agreed to in writing by IndyMac Bancorp and
the Agent for all services rendered by it hereunder;
(2) except as otherwise expressly provided for herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense, including
taxes (other than taxes based upon, measured by or determined by the
income of the Agent) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of its duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The Agent shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor Agent
pursuant to this Section 7.7, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this
Agreement and the resignation or removal of the Agent.
SECTION 7.8. CORPORATE AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Agent and no appointment of
a successor Agent pursuant to this Article shall become effective until
the acceptance of appointment by the successor Agent in accordance with
the applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to IndyMac Bancorp 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent
required by Section 7.10 shall not have been delivered to the Agent
within 30 days after the giving of such notice of resignation, the
resigning Agent may petition any court of competent jurisdiction for the
appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders
of a majority in number of the Outstanding Securities delivered to the
Agent and IndyMac Bancorp.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an
indenture qualified under the TIA, after written request
therefor by IndyMac Bancorp or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section
7.8 and shall fail to resign after written request therefor by
IndyMac Bancorp or by any such Holder, or
(3) the Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Agent
or of its property shall be appointed or any public officer
shall take charge or control of the Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) IndyMac Bancorp by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any
cause, IndyMac Bancorp, by a Board Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of
Section 7.10. If no successor Agent shall have been so appointed by
IndyMac Bancorp and accepted appointment in the manner required by
Section 7.10, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
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(f) IndyMac Bancorp shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent
and each appointment of a successor Agent by mailing written notice of
such event by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the applicable Register. Each notice shall
include the name of the successor Agent and the address of its Corporate
Trust Office.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and
deliver to IndyMac Bancorp and to the retiring Agent an instrument
accepting such appointment, and thereupon the resignation or removal of
the retiring Agent shall become effective and such successor Agent,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, agencies and duties of the retiring Agent; but,
on the request of IndyMac Bancorp or the successor Agent, such retiring
Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers
and trusts of the retiring Agent and shall duly assign, transfer and
deliver to such successor Agent all property and money held by such
retiring Agent hereunder. If an instrument of acceptance by a successor
Agent shall not have been delivered to the Agent within 30 days after
the giving of such notice of removal, the Agent being removed may
petition, at the expense of IndyMac Bancorp, any court of competent
jurisdiction for the appointment of a successor Agent with respect to
the Securities of such series.
(b) Upon request of any such successor Agent, IndyMac Bancorp
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Agent all such rights,
powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at
the time of such acceptance such successor Agent shall be qualified and
eligible under this Article.
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Agent then in
office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
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SECTION 7.12. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by
the Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent
reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application,
and such application states that the applicants desire to communicate
with other Holders with respect to their rights under this Agreement or
under the Securities and is accompanied by a copy of the form of proxy
or other communication which such applicants propose to transmit, then
the Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Agent of the materials to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
such mailing.
SECTION 7.13. NO OBLIGATIONS OF AGENT.
Except to the extent otherwise expressly provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement in respect of the obligations of the Holder of any Security
hereunder. IndyMac Bancorp agrees, and each Holder of a Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Agent's execution
of the Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation
thereunder except to the extent expressly provided in Article Five hereof.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Agent or its officers, employees or agents be liable under this Agreement to
any third party for indirect, special, punitive, or consequential loss or damage
of any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Agent, incurred without any act or deed
that is found to be attributable to gross negligence or willful misconduct on
the part of the Agent.
SECTION 7.14. TAX COMPLIANCE.
(a) IndyMac Bancorp will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable tax laws, regulations or
administrative practice with respect to (i) any payments made with
respect to the Securities or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Securities. Such
compliance shall include, without limitation, the preparation and timely
filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply in accordance with the terms hereof
with any written direction received from IndyMac Bancorp with respect to
the execution or certification of any required documentation and the
application of such requirements to particular payments or Holders or in
other particular circumstances, and may for purposes
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of this Agreement conclusively rely on any such direction in accordance
with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records
available, on written request, to IndyMac Bancorp or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders or any other party hereto, IndyMac
Bancorp, the Trust and the Agent, at any time and from time to time, may enter
into one or more agreements supplemental hereto, in form satisfactory to IndyMac
Bancorp, the Trust and the Agent, for any of the following purposes:
(1) to evidence the succession of another Person to
IndyMac Bancorp or the Trust, and the assumption by any such
successor of the covenants of IndyMac Bancorp herein and in the
Certificates; or
(2) to add to the covenants of IndyMac Bancorp or the
Trust for the benefit of the Holders, or to surrender any right
or power herein conferred upon IndyMac Bancorp or the Trust; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(4) to cure any ambiguity, to cure, correct or
supplement any provisions herein which may be inconsistent with
any other provisions herein, or to make any other provisions
with respect to such matters or questions arising under this
Agreement that IndyMac Bancorp, the Trust and the Agent may deem
necessary or desirable, provided such action shall not adversely
affect the interests of the Holders.
SECTION 8.2. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS; OTHER FIDUCIARIES.
With the consent of the Holders of not less than a majority in number of
the Outstanding Securities voting together as one class, by Act of said Holders
delivered to IndyMac Bancorp and the Agent, IndyMac Bancorp, when authorized by
a Board Resolution, the Trust and the Agent may enter into an agreement or
agreements supplemental hereto for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that, except as contemplated herein, no such
supplemental agreement shall, without the unanimous consent of the Holders of
each Outstanding Security affected thereby,
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(1) materially and adversely affect such Holder's rights
under a Security; or
(2) reduce the percentage of the Outstanding Securities
the consent of whose Holders is required for any such
supplemental agreement;
provided, further, however, that any modification of the Trust Agreement or
Warrant Agreement in accordance with the terms thereof shall be binding on the
rights of the Holders under this Agreement without the need for any further
consent.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
No agreement supplemental hereto shall modify in any way any of the
rights, duties or obligations of the Agent, the Property Trustee, the Indenture
Trustee, the Warrant Agent or the Remarketing Agent without such Person's
consent.
IndyMac Bancorp may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any agreement
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such agreement supplemental hereto, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
SECTION 8.3. EXECUTION OF SUPPLEMENTAL AGREEMENTS.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.4. EFFECT OF SUPPLEMENTAL AGREEMENTS.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
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SECTION 8.5. REFERENCE TO SUPPLEMENTAL AGREEMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If IndyMac Bancorp shall so determine, new Certificates so modified
as to conform, in the opinion of the Agent and IndyMac Bancorp, to any such
supplemental agreement may be prepared and executed by IndyMac Bancorp and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for Certificates representing Outstanding Securities.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT
UNDER CERTAIN CONDITIONS.
IndyMac Bancorp covenants that it will not merge or consolidate with any
other Person or sell, assign, transfer, lease or convey all or substantially all
of its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either IndyMac
Bancorp shall be the continuing corporation, or the successor (if other than
IndyMac Bancorp) shall be a corporation organized and existing under the laws of
the United States of America or a State thereof or the District of Columbia and
such corporation shall expressly assume all the obligations of IndyMac Bancorp
under this Agreement by one or more supplemental agreements in form reasonably
satisfactory to the Agent, executed and delivered to the Agent by such
corporation and (ii) IndyMac Bancorp or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale,
assignment, transfer, lease or conveyance, be in default in the performance of
any covenant or condition hereunder or under any of the Securities (including
the component parts thereof).
SECTION 9.2. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In the case of any consolidation, merger, sale, assignment, transfer,
lease or conveyance referred to in Section 9.1 and upon any assumption of
obligations hereunder by a successor corporation in accordance with Section 9.1,
such successor corporation shall succeed to and be substituted for IndyMac
Bancorp with the same effect as if it had been named herein as IndyMac Bancorp.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of IndyMac Bancorp, any or all of the
Certificates evidencing Securities issuable hereunder which theretofore shall
not have been signed by IndyMac Bancorp and delivered to the Agent; and, upon
the order of such successor corporation, instead of IndyMac Bancorp, and subject
to all the terms, conditions and limitations in this Agreement prescribed, the
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of IndyMac Bancorp to the Trust and the Agent for execution and
authentication, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Agent for
that purpose. All the Certificates so issued shall in all respects have
40
the same legal rank and benefit under this Agreement as the Certificates
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Certificates had been issued at the date of the execution
hereof.
In the case of such consolidation, merger, sale, assignment, transfer,
lease or conveyance referred to in Section 9.1 such change in phraseology and
form (but not in substance) may be made in the Certificates evidencing
Securities thereafter to be issued as may be appropriate.
SECTION 9.3. OPINION OF COUNSEL GIVEN TO AGENT.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of
Counsel as conclusive evidence that any consolidation, merger, sale, assignment,
transfer, lease or conveyance referred to in Section 9.1, and any related
assumption required by Section 9.2, complies with the provisions of this Article
and that all conditions precedent to the consummation of any such consolidation,
merger, sale, assignment, transfer, lease or conveyance have been met.
ARTICLE X
COVENANTS
SECTION 10.1. PERFORMANCE UNDER AGREEMENTS.
IndyMac Bancorp covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Warrant Agreement and the Trust Agreement in accordance
with the terms thereof and this Agreement.
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
IndyMac Bancorp will maintain in the Borough of Manhattan, The City of
New York an office or agency where Certificates may be presented or surrendered
for registration of transfer or exchange, separation or re-establishment of a
Security and where notices and demands to or upon IndyMac Bancorp in respect of
the Securities and this Agreement may be served. IndyMac Bancorp will give
prompt written notice to the Agent of the location, and any change in the
location, of such office or agency. If at any time IndyMac Bancorp shall fail to
maintain any such required office or agency or shall fail to furnish the Agent
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office, and IndyMac Bancorp hereby
appoints the Agent as its agent to receive all such presentations, surrenders,
notices and demands.
IndyMac Bancorp may also from time to time designate one or more other
offices or agencies where Certificates 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 IndyMac Bancorp of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. IndyMac Bancorp
will give prompt written notice to the Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
IndyMac Bancorp hereby
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designates as the place of payment for the Securities the Corporate Trust Office
and appoints the Agent at its Corporate Trust Office as paying agent in such
city.
SECTION 10.3. STATEMENTS OF OFFICERS OF INDYMAC BANCORP AS TO COMPLIANCE.
IndyMac Bancorp will deliver to the Agent, within 120 days after the end
of each fiscal year of IndyMac Bancorp (which as of the date hereof is December
31) ending after the date hereof, an Officers' Certificate (one of the signers
of which shall be the principal executive officer, principal financial officer
or principal accounting officer of IndyMac Bancorp), stating whether or not to
the best knowledge of the signers thereof IndyMac Bancorp is in default in the
performance and observance of any of the terms, provisions and conditions
hereof, and if IndyMac Bancorp shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 10.4. ERISA.
Each Holder from time to time of a Security which is a Plan hereby
represents that such acquisition of the Security and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
SECTION 10.5. STATEMENT BY OFFICERS AS TO DEFAULT.
IndyMac Bancorp shall deliver to the Agent, as soon as possible and in
any event within five days after IndyMac Bancorp becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
IndyMac Bancorp proposes to take with respect thereto.
SECTION 10.6. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
IndyMac Bancorp shall provide to the Agent on a timely basis such
information as the Agent requires to enable the Agent to prepare and file any
form required to be submitted by IndyMac Bancorp with the Internal Revenue
Service and Holders of Securities relating to original discount, including,
without limitation, Form 1099-OID or any successor form.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF THE AGENT
SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF THE AGENT.
The initial Agent represents and warrants to the Trust and to IndyMac
Bancorp at the date of this Agreement, and each successor Agent represents and
warrants to the Trust and IndyMac Bancorp at the time of the successor Agent's
acceptance of its appointment as Agent, that:
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(a) the Agent is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York,
with trust powers and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Agreement;
(b) the Agent satisfies the requirements set forth in Section
7.8;
(c) the execution, delivery and performance by the Agent of this
Agreement has been duly authorized by all necessary corporate action on
the part of the Agent; this Agreement has been duly executed and
delivered by the Agent and constitutes a legal, valid and binding
obligation of the Agent enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally
and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law);
(d) the execution, delivery and performance of this Agreement by
the Agent does not conflict with, or constitute a breach of, the charter
or by-laws of the Agent; and
(e) no consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Agent of this
Agreement.
ARTICLE XII
THE WARRANT AGENT AND THE PROPERTY TRUSTEE
SECTION 12.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) (1) The Warrant Agent and the Property Trustee (each, a
"Party", and together, the "Parties") undertake to perform, with respect
to this Agreement, such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or obligations
shall be read into this Agreement against any Party. The provisions
regarding the appointment, removal, resignation, vacancies, meetings,
delegation of power and merger, conversion, consolidation or succession
to business applicable to such Party in the Trust Agreement or Warrant
Agreement, as to which such Person is a party, shall apply to the
performance of such Persons duties and obligations hereunder.
Without limiting the foregoing,
(a) In the absence of bad faith or negligence on its part, any
Party may, with respect to the Securities, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to such Party and
conforming to the requirements of this Agreement but in the case of any
certificates or opinions which by any provision hereof are specifically
required to be furnished to a Party, such Party shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement.
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(b) No provision of this Agreement shall be construed to relieve
any Party from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) no Party shall be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that such Party was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement shall require any
Party to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Parties shall be subject to
the provisions of this Section.
(d) Any Party may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(e) Any request or direction of IndyMac Bancorp mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors of
IndyMac Bancorp may be sufficiently evidenced by a Board Resolution;
(f) Whenever in the administration of this Agreement any Party
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Party (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate of IndyMac
Bancorp;
(g) Any Party may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(h) No Party shall be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but any Party, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters as it may see fit,
and, if such Party shall determine to make such further inquiry or
investigation, it shall be given a reasonable
44
opportunity to examine the books, records and premises of IndyMac
Bancorp, personally or by agent or attorney at the sole cost of IndyMac
Bancorp and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation;
(i) Any Party may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys or an Affiliate and no Party shall be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder;
(j) No Party shall be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(k) No Party shall be deemed or have notice of any default or
event of default unless an officer in the corporate trust department of
such Party has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by such Party at its
address identified in this Agreement, and such notice references the
Securities and this Agreement;
(l) The rights, privileges, protections, immunities and benefits
given to each Party, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, such Party in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder;
(m) The recitals contained herein and in the Certificates shall
be taken as the statements of IndyMac Bancorp, and no Party assumes any
responsibility for their accuracy. No Party makes any representations as
to the validity or sufficiency of either this Agreement or of the
Securities;
(n) Any Party in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with
IndyMac Bancorp or any other Person with the same rights it would have
if it were not a Party;
(o) IndyMac Bancorp agrees to pay each Party such compensation,
and to reimburse each Party for such expenses, as shall be provided from
time to time in the Trust Agreement and the Warrant Agreement to which
such Party is a signatory;
(p) The provisions of this Section shall survive the termination
of this Agreement; and
(q) No Party shall be accountable for the use or application by
IndyMac Bancorp of Securities or the proceeds thereof.
45
IN WITNESS WHEREOF, the parties hereto have caused this Unit Agreement
to be duly executed as of the day and year first above written.
INDYMAC BANCORP, INC.
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Warrant Agent
By:
-----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Property
Trustee
By:
-----------------------------------
Name:
Title:
INDYMAC CAPITAL TRUST I
By:
-----------------------------------
Name:
Title:
46
EXHIBIT A
FACE OF CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.
THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO
TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT."
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS UNIT CERTIFICATE OR ANY INTEREST
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH
RESPECT TO SUCH PURCHASE OR HOLDING OR THE REQUIREMENTS OF U.S. DEPARTMENT OF
LABOR REGULATION SECTION 2550.401c-1 ARE SATISFIED SUCH THAT THIS UNIT
CERTIFICATE HELD BY THE PURCHASER OR HOLDER DOES NOT CONSTITUTE "PLAN ASSETS".
ANY PURCHASER OR HOLDER OF THIS UNIT CERTIFICATE OR
A-1
ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS
NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN,
OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING OR U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-1.
A-2
Certificate No.:
CUSIP No.:
Number:
INDYMAC BANCORP, INC.
INDYMAC CAPITAL TRUST I
Unit Security
This Certificate certifies that Cede & Co. is the registered Holder of
the number of Securities set forth above. Each Security consists of (i)
beneficial ownership by the Holder of one Preferred Security (the "Preferred
Security") of IndyMac Capital Trust I, a Delaware statutory business trust (the
"Trust"), having a stated liquidation amount of $50, the form of which is
attached as Annex A hereto and (ii) the rights and obligations of the Holder
under one Warrant to purchase shares of common stock of IndyMac Bancorp, Inc., a
Delaware corporation (the "Company"), the form of which is attached as Annex B
hereto. All capitalized terms used herein which are defined in the Unit
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Distributions on any Preferred Security forming part of a Security
evidenced hereby, which are payable quarterly in arrears on February 1, May 1,
August 1, and November 1 of each year, commencing on February 1, 2002 (a
"Payment Date"), shall, subject to receipt thereof by the Agent, be paid to the
Person in whose name this Certificate (or a Predecessor Certificate) is
registered at the close of business on the Record Date for such Payment Date,
except that the proceeds of a Remarketing will be paid to the Warrant Agent in
satisfaction of each Electing Remarketing Holder's obligations to pay the
Exercise Price of Warrants constituting a part of this Security.
Distributions on the Preferred Securities will be payable at the office
of the Agent in The City of New York or, at the option of IndyMac Bancorp, by
check mailed to the address of the Person entitled thereto as such address
appears on the Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Certificate shall not be entitled to any benefit
under the Unit Agreement, the Warrant Agreement or the Trust Agreement or be
valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed.
INDYMAC BANCORP, INC.
By:
-----------------------------------
Name:
Title:
INDYMAC CAPITAL TRUST I
By:
-----------------------------------
Name:
Title: Administrative Trustee
A-2
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Unit
Agreement.
By: THE BANK OF NEW YORK, as Agent
By:
-----------------------------------
Authorized Signatory
A-3
(FORM OF REVERSE OF CERTIFICATE)
Each Security evidenced hereby is governed by a Unit Agreement, dated as
of November 14, 2001 (as may be supplemented from time to time, the "Unit
Agreement"), among IndyMac Bancorp, IndyMac Capital Trust I (the "Trust"), The
Bank of New York, as unit agent (including its successors hereunder, the
"Agent"), The Bank of New York, as Warrant Agent, and Wilmington Trust Company,
as Property Trustee, to which Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Agent, IndyMac
Bancorp, the Trust, and the Holders and of the terms upon which the Certificates
are, and are to be, executed and delivered. Pursuant to the Unit Agreement, the
rights, limitations or rights, obligations, duties and immunities of the Agent,
IndyMac Bancorp, the Trust, and the Holders, and the Certificates include the
rights, obligations, duties and immunities set forth in the Warrant Agreement
and the Trust Agreement, to which reference is further made for a description
thereof.
Each Security evidenced hereby consists of (i) beneficial ownership by
the Holder of one Preferred Security of IndyMac Capital Trust I having a stated
liquidation amount of $50, the form of which is attached as Annex A hereto and
(ii) the rights and obligations of the Holder under one Warrant to purchase
shares of common stock of IndyMac Bancorp, the form of which is attached as
Annex B hereto.
IndyMac Bancorp may, under the circumstances described in the Trust
Agreement, cause a Remarketing of the outstanding Preferred Securities which
form a part of this Security. In connection therewith, IndyMac Bancorp may, as
described in the Warrant Agreement and the Unit Agreement, redeem all Warrants
which form a part of this Security.
In no event may a Holder pay the Exercise Price of a Warrant by
tendering a Preferred Security. In accordance with the terms of the Trust
Agreement and the Unit Agreement, the Holder of this Certificate may pay the
Exercise Price for the shares of Common Stock purchased pursuant to each Warrant
constituting a part of this Security by applying the proceeds of a remarketing
of the related Preferred Securities.
A Holder of a Security who does not affirmatively elect NOT to
participate in a Remarketing on or prior to 5:00 p.m., New York City time on the
Business Day immediately preceding the Remarketing Date, will be deemed to have
consented to participation in such Remarketing. A Holder of a Security who does
not affirmatively elect on or prior to 5:00 p.m. on the Business Day preceding a
Remarketing Settlement Date to exercise the Warrants related to such Security
will be deemed to have consented to a redemption of such Warrants on the
Remarketing Settlement Date. A Remarketing sale will be made by the Remarketing
Agent pursuant to the terms of the Remarketing Agreement on the Remarketing
Date.
A holder may exercise the Warrants which form a part of the Securities
evidenced by this Certificate at any time upon compliance with the procedures
specified in the Warrant Agreement. A Holder of a Security evidenced by this
Certificate who elects to exercise Warrants prior to the Remarketing Settlement
Date and who is not participating in a Remarketing shall have the right
A-4
to require the Trust to exchange the related Preferred Securities for Debentures
having an Accreted Value equal to the Accreted Value of such Preferred
Securities and to require IndyMac Bancorp to repurchase such Debentures on the
next Required Repurchase Date which is no less than 60 days after the applicable
exercise date.
Upon receipt of notice of any meeting at which holders of Preferred
Securities are entitled to vote or upon the solicitation of consents, waivers or
proxies of holders of Preferred Securities, the Agent shall, as soon as
practicable thereafter, mail to the Holders a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Preferred Securities entitled to vote) shall be entitled to instruct the
Agent as to the exercise of the voting rights pertaining to the Preferred
Securities constituting a part of such Holder's Security and (c) stating the
manner in which such instructions may be given. Upon the written request of the
Holders on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Preferred Securities as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Security, the Agent shall abstain from voting the Preferred
Security evidenced by such Security.
Upon the liquidation of the Trust, a principal amount of the Debentures
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate Accreted Value of the Preferred Securities shall be
delivered to the Agent in exchange for the Preferred Securities. Thereafter, the
Holders shall have such rights and obligations with respect to the Debentures as
the Holders had in respect of the Preferred Securities and any reference herein
to the Preferred Securities shall be deemed to be a reference to the Debentures.
The Certificates are issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof. The
transfer of any Certificate will be registered and Certificates may be exchanged
as provided in the Unit Agreement. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Unit Agreement. No service charge shall be required for any
such registration of transfer or exchange, but IndyMac Bancorp and the Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. A Security shall be separable into its
components, and Securities may be recreated as provided in the Unit Agreement;
provided, however, this Certificate shall not represent more than 4,000,000
Securities. All such adjustments to the equivalent aggregate principal amount of
this Certificate shall be duly recorded by placing an appropriate notation on
the Schedule attached hereto.
The Holder of this Certificate, by its acceptance hereof, expressly
withholds any consent to the assumption (i.e., affirmance) of the Warrant
Agreement or the Warrants by IndyMac Bancorp or its trustee in the event that
IndyMac Bancorp becomes the subject of a case under the Bankruptcy Code.
A-5
The Holder of this Certificate, by its acceptance hereof, expressly
agrees to be bound by the terms and provisions of the Unit Agreement, the
Warrant Agreement and the Trust Agreement.
Subject to certain exceptions, the provisions of the Unit Agreement may
be amended with the consent of the Holders of a majority in number of the
Securities.
IndyMac Bancorp, the Agent and its Affiliates and any agent of IndyMac
Bancorp or the Agent may treat the Person in whose name this Certificate is
registered as the owner of the Security evidenced hereby for the purpose of
receiving payments of distributions payable quarterly on the Preferred
Securities and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither IndyMac Bancorp, the Agent nor any such agent shall be affected by
notice to the contrary.
The Warrants shall not, prior to the exercise thereof, entitle the
Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Unit Agreement, the Warrant Agreement, the Trust Agreement
and all exhibits to each such agreement is available for inspection at the
offices of the Agent.
This Security shall be governed by the laws of the State of New York,
without regard to principles of conflicts of law.
A-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- as tenants in common
UNIF GIFT MIN ACT-
-------------------------------------
Custodian
TEN ENT- [Under Uniform Gifts to Minors Acts of]
JT TEN-
-------------------------------------
as tenants by the entireties as joint
tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying
Number of Assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer said Certificates on the books
of (Name of Company) with full power of substitution in the premises.
Dated: -------------------------------------
---------------------- Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Certificates in every
particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee:
---------------------------
A-7
(TO BE ATTACHED TO GLOBAL CERTIFICATES)
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Unit shall represent [__________] Securities unless
otherwise indicated below.
The following increases or decreases in this Global Unit have been made:
AMOUNT OF AMOUNT OF
DECREASE IN INCREASE IN
NUMBER OF NUMBER OF NUMBER OF SECURITIES
SECURITIES SECURITIES EVIDENCED BY THIS GLOBAL SIGNATURE OF
EVIDENCED BY THE EVIDENCED BY THE UNIT FOLLOWING SUCH AUTHORIZED
DATE GLOBAL UNIT GLOBAL UNIT DECREASE OR INCREASE OFFICER OF AGENT
--------- ---------------- ---------------- ----------------------- ----------------
A-8
ANNEX A
(FORM OF PREFERRED SECURITY CERTIFICATE)
This Preferred Security is a Global Preferred Security within the
meaning of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the "Clearing
Agency"), or a nominee of the Clearing Agency. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person other
than the Clearing Agency or its nominee only in the limited circumstances
described in the Trust Agreement, and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the Clearing
Agency to a nominee of the Clearing Agency or by a nominee of the Clearing
Agency to the Clearing Agency or another nominee of the Clearing Agency) may be
registered except in limited circumstances. Unless this certificate is presented
by an authorized representative of the Clearing Agency to IndyMac Capital Trust
I or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Clearing Agency (and any
payment hereon is made to Cede & Co. or to such other entity as is requested by
an authorized representative of the Clearing Agency), and except as otherwise
provided in the Trust Agreement, 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.(1)
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY CERTIFICATE OR
ANY INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING OR THE
REQUIREMENTS OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-1 ARE
SATISFIED SUCH THAT THIS PREFERRED SECURITY CERTIFICATE HELD BY THE PURCHASER OR
HOLDER DOES NOT CONSTITUTE "PLAN ASSETS". ANY PURCHASER OR HOLDER OF THIS
PREFERRED SECURITY CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN
OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING OR U.S. DEPARTMENT OF LABOR
REGULATION SECTION 2550.401c-1.
------------------
(1) Insert in Global Preferred Securities only.
A-9
CERTIFICATE EVIDENCING PREFERRED SECURITIES
of
INDYMAC CAPITAL TRUST I
6% Preferred Securities
(stated liquidation amount $50 per Preferred Security)
Certificate No.: Number of Preferred Securities
CUSIP No.:
IndyMac Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
________________ (the "Holder") is the registered owner of _____________________
preferred securities of the Trust representing undivided beneficial ownership
interests in the assets of the Trust designated the Preferred Securities (stated
liquidation amount $50 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in the Trust Agreement. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated Trust
Agreement, dated as of November 14, 2001 (as the same may be amended from time
to time (the "Trust Agreement"), among IndyMac Bancorp, Inc., as Sponsor, ▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Administrative Trustees, Wilmington Trust
Company, as Property Trustee, and Wilmington Trust Company, as Delaware Trustee
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust. Capitalized terms used but not defined herein shall have
the meaning given them in the Trust Agreement. The Holder is entitled to the
benefits of the Guarantee Agreement, dated as of November 14, 2001, (as the same
may be amended from time to time) between IndyMac Bancorp, Inc., as Guarantor
and Wilmington Trust Company, as Guarantee Trustee, in respect of the Preferred
Securities. The Sponsor will provide a copy of the Trust Agreement, the
Guarantee Agreement and the Indenture (including any supplemental indenture) to
a Holder without charge upon written request to the Sponsor at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of undivided indirect beneficial ownership interests in the
Debentures.
A-10
IN WITNESS WHEREOF, the Trust has executed this certificate this 14th
day of November, 2001.
INDYMAC CAPITAL TRUST I
By:
-----------------------------------------------
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Trust Agreement.
Dated: November 14, 2001
WILMINGTON TRUST COMPANY, as
Property Trustee
By:
------------------------------
Authorized Signatory
A-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security(ies) Certificate to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints __________________________ agent to transfer this
Preferred Security(ies) Certificate on the books and records of the Trust. The
agent may substitute another to act for him.
Date:
Signature:
(Sign exactly as your name appears on the Preferred Security(ies) Certificate)
Signature Guarantee*:
------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
A-12
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL PREFERRED SECURITY(1)
This Global Preferred Security shall represent _________________
Preferred Securities unless otherwise indicated below.
The following increases or decreases in this Global Preferred Security
have been made:
AMOUNT OF AMOUNT OF
DECREASE IN INCREASE IN
NUMBER OF NUMBER OF
PREFERRED PREFERRED NUMBER OF PREFERRED
SECURITIES SECURITIES SECURITIES EVIDENCED BY
EVIDENCED BY THE EVIDENCED BY THE THIS GLOBAL PREFERRED SIGNATURE OF
GLOBAL PREFERRED GLOBAL PREFERRED SECURITY FOLLOWING SUCH AUTHORIZED
DATE SECURITY SECURITY DECREASE OR INCREASE OFFICER OF AGENT
--------- ---------------- ----------------- ------------------------ ----------------
(1) Insert in Global Preferred Securities only.
▇-▇▇
▇▇▇▇▇ ▇
(▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ CERTIFICATE)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE SHARES
(SUBJECT TO ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF THE COMPANY AT THE
EXERCISE PRICE SET FORTH IN THE BELOW-REFERENCED WARRANT AGREEMENT AND A
PREFERRED SECURITY OF INDYMAC CAPITAL TRUST I (THE "TRUST"). THE WARRANTS AND
THE PREFERRED SECURITIES MAY BE SEPARATED AND TRANSFERRED SEPARATELY, AND
RE-ATTACHED, IN ACCORDANCE WITH THE PROVISIONS OF THE UNIT AGREEMENT.
(UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.)
(TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT
AGREEMENT.)
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS WARRANT CERTIFICATE OR ANY
INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING OR THE REQUIREMENTS OF U.S.
DEPARTMENT OF LABOR REGULATION SECTION 2550.401c-1 ARE SATISFIED SUCH THAT THIS
WARRANT CERTIFICATE HELD BY THE PURCHASER OR HOLDER DOES NOT CONSTITUTE "PLAN
ASSETS". ANY PURCHASER OR HOLDER OF THIS WARRANT CERTIFICATE OR ANY INTEREST
HEREIN WILL BE DEEMED TO HAVE
A-14
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT IT EITHER (A) IS NOT A PLAN
OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING OR U.S. DEPARTMENT OF LABOR
REGULATION SECTION 2550.401c-1.
No. ( )
Certificate for Warrants
CUSIP No.
Certificate for ___________ Warrants
CUSIP No.:
WARRANTS TO PURCHASE COMMON STOCK OF
INDYMAC BANCORP, INC.
THIS CERTIFIES THAT , or its registered assigns, is the registered
holder of the number of Warrants set forth above (the "Warrants"). Each Warrant
entitles the holder thereof (the "Holder"), at its option and subject to the
provisions contained herein and in the Warrant Agreement referred to below, to
purchase from IndyMac Bancorp, Inc., a Delaware corporation ("the Company"),
1.5972 shares (subject to certain adjustments as set forth in the Warrant
Agreement) of common stock of the Company (the "Common Stock") at the Exercise
Price. This Warrant Certificate shall terminate and become void, and the related
Warrants shall expire, as of 5:00 p.m., New York time, on the earlier of (i)
September 15, 2031 subject to certain changes or (ii) the date the Warrants are
redeemed by the Company pursuant to the terms of the Warrant Agreement, as
described below (the "Expiration Date"), or upon the earlier exercise hereof as
to all the shares of Common Stock subject hereto. The number of shares issuable
upon exercise of the Warrants shall be subject to adjustment from time to time
as set forth in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of November 14, 2001 (the "Warrant Agreement"),
between the Company and The Bank of New York, as warrant agent (the "Warrant
Agent", which term includes any successor Warrant Agent under the Warrant
Agreement), and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is hereby
made to the Warrant Agreement for a full statement of the respective rights,
limitations of rights, duties and obligations of the Company, the Warrant Agent
and the Holders of the Warrants. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Warrant Agreement. A copy of the
Warrant Agreement may be obtained for inspection by the Holder hereof upon
written request to the Warrant Agent at its address for notices specified in the
Warrant Agreement.
A-15
Subject to redemption as described below, the Holder of this Warrant
Certificate shall have the right, prior to the Expiration Date, at such Holder's
option, to exercise the related Warrant and purchase the Exercise Amount
(subject to certain adjustments set forth in the Warrant Agreement) of Common
Stock at the Exercise Price, provided that the Exercise Conditions are met as of
such date. If the Warrant evidenced by this Warrant Certificate is not exercised
at or before 5:00 p.m., New York time, on its Expiration Date, such Warrant
shall become void, and all rights of the Holder of this Warrant Certificate
hereunder and under the Warrant Agreement shall cease. The Warrant or Warrants
evidenced by this Warrant Certificate may be exercised by giving notice to the
Warrant Agent no later than 5:00 p.m., New York time, on the Business Day
preceding the proposed date of exercise of such Warrants and completing the form
of election to purchase set forth on the reverse hereof, and delivering the
same, together with this Warrant Certificate (if this Warrant Certificate shall
then be held in definitive form), to the Warrant Agent no later than 5:00 p.m.,
New York time, on the date of such exercise, together with a Cash Payment
(unless, in accordance with the Warrant Agreement, a Remarketing Payment is to
be made). In no event may a Holder satisfy its obligation to pay the Exercise
Price by tendering Preferred Securities.
On the date of exercise of the Warrant or Warrants evidenced by this
Warrant Certificate, the Company shall issue, and the Warrant Agent shall
deliver, to or upon the order of the Holder hereof, the Exercise Amount of
Common Stock to which such Holder is entitled, registered in such name or names
as may be directed by such Holder. The date on which this Warrant Certificate
and payment are received by the Warrant Agent as aforesaid shall be deemed to be
the date on which the related Warrant is exercised and the related Common Stock
is issued.
Notwithstanding anything to the contrary in this Warrant Certificate or
in the Warrant Agreement, (i) no fractional shares of Common Stock shall be
issued by the Company upon the exercise of any Warrant, (ii) if more than one
Warrant shall be exercised at the same time by the same Holder, the number of
shares of Common Stock issuable in connection with such exercise shall be
computed on the basis of the aggregate Exercise Amount of the Warrants so
exercised and (iii) on the date a Holder exercises such Holder's Warrant, the
Company shall pay such Holder an amount in cash equal to the then-current Market
Price (multiplied by the related fraction) of Common Stock for such fractional
shares, computed to the nearest whole cent.
If fewer than all of the Warrants evidenced by this Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
The "Exercise Conditions" require that, with respect to any Warrant on
any date on which such Warrant is or is proposed to be exercised by the Holder
thereof, that (i) (a) the Company shall have a registration statement in effect
under the Securities Act covering the issuance and sale of the related Exercise
Amount of Common Stock upon exercise of such Warrant, or (b) the sale of such
shares of Common Stock shall be exempt from the registration requirements of the
Securities Act, (ii) such shares of Common Stock shall have been registered or
qualified or shall be deemed to be exempt from the registration or qualification
requirements of, the securities laws of the state of residence of the exercising
Holder and (iii) a then-current prospectus relating to the Common Stock shall be
delivered to such exercising Holder.
A-16
As provided in the Warrant Agreement, the number of shares of Common
Stock issuable upon the exercise of the Warrants is subject to an anti-dilution
adjustment upon the happening of certain events. The Warrant Agreement also
provides for certain adjustments and/or distributions in the event of certain
events relating to a merger or combination of the Company and similar events.
Subject to satisfaction of the Exercise Conditions and certain other
conditions, the Company may elect to cause a redemption of the Warrants and a
contemporaneous remarketing of the Preferred Securities , for cash, in an amount
equal to the Warrant Value as of the day next preceding the Remarketing Date, in
accordance with the Warrant Agreement and related agreements.
A Holder (i) may elect to exercise a Warrant in lieu of Redemption, if
(A) such Warrant is held pursuant to the Unit Agreement, and such Holder has
opted out of participating in the Remarketing, by notice given to the Warrant
Agent and the Unit Agent; or (B) such Warrant is not held pursuant to the Unit
Agreement, by notice given to the Warrant Agent, in each case prior to 5:00
p.m., New York time, on the Business Day prior to the related Redemption Date;
and (ii) as provided in the Unit Agreement, shall be deemed to have elected to
exercise such Warrant in lieu of Redemption, if such Warrant is held pursuant to
the Unit Agreement and such Holder has not opted out of participating in the
Remarketing. In the absence of an election to exercise a Warrant in lieu of a
Redemption, including a deemed election pursuant to clause (ii) of the preceding
sentence, a Holder will be deemed to have elected to have its Warrants redeemed
on the Redemption Date.
If a Holder elects or is deemed to have elected to exercise a Warrant
pursuant to the preceding paragraph, then such Holder must tender the Exercise
Price for such Warrant as a Cash Payment, and must follow certain procedures set
forth in the Warrant Agreement; provided, however, that if (i) such Warrant is,
on the Remarketing Date, held pursuant to the Unit Agreement, (ii) such Holder
has not opted out of participating in the Remarketing, and (iii) a Successful
Remarketing shall have occurred, then the Exercise Price of such Warrant will be
deemed to have been paid by a Remarketing Payment, and the Remarketing Agent
will, in connection with such Remarketing Payment, apply the proceeds of the
Remarketing of the related Preferred Security in accordance with the terms of
the Remarketing Agreement and the Unit Agreement.
Any Warrant so redeemed or exercised will, upon such redemption or
exercise, cease to be outstanding.
If a Redemption cannot occur because of an inability, following the
Company's best efforts, to satisfy the Redemption Conditions, the Company will
promptly notify the Warrant Agent and each Holder (at its address specified in
the Warrant Register) thereof. Such event will not constitute a default under
the Warrant Agreement so long as the Company is not otherwise in violation
thereof; and the Company may, under such circumstances, subsequently seek to
remarket the Preferred Securities and contemporaneously redeem the Warrants.
The Company will, contemporaneously with the giving of notice of
Remarketing, furnish notice of Redemption to the Warrant Agent, which will,
within two (2) Business Days after
A-17
receipt thereof, furnish notice of such Redemption to the Holders of Definitive
Warrants, and the Company will request, not later than four nor more than 20
business days prior to the Remarketing Date, that DTC notify its Participants
holding Warrants of the Remarketing.
The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with the transfer or
exchange of the Warrant Certificates pursuant to the Warrant Agreement, but not
for any exchange or original issuance (not involving a transfer) with respect to
temporary Warrant Certificates, the exercise of the Warrants or the issuance of
the Common Stock.
This Warrant Certificate may be exchanged at the office of the Warrant
Agent by presenting this Warrant Certificate properly endorsed with a request to
exchange this Warrant Certificate for other Warrant Certificates evidencing an
equal number of Warrants, in accordance with the Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise of
the Warrants shall, upon such issue, be duly and validly issued and fully paid
and non-assessable.
The holder in whose name this Warrant Certificate is registered may be
deemed and treated by the Company and the Warrant Agent as the absolute owner of
this Warrant Certificate for all purposes whatsoever and neither the Company nor
the Warrant Agent shall be affected by notice to the contrary.
A-18
Neither this Warrant Certificate, nor the Warrant evidenced hereby,
entitles the Holder hereof to any of the rights of a stockholder of the Company.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
INDYMAC BANCORP, INC.
By:
---------------------------------
Name:
Title:
DATED: November 14, 2001
Countersigned:
THE BANK OF NEW YORK,
as Warrant Agent
By:
----------------------------
Authorized Signatory
A-19
{REVERSE OF WARRANT CERTIFICATE}
FORM OF ELECTION TO PURCHASE COMMON STOCK
(to be executed only upon exercise of Warrants)
INDYMAC BANCORP, INC.
The undersigned hereby irrevocably elects to exercise Warrants at an
Exercise Price of $ per Warrant to acquire the Exercise Amount (as determined
pursuant to the Warrant Agreement) per Warrant of Common Stock of IndyMac
Bancorp, Inc. on the terms and conditions specified within this Warrant
Certificate and the Warrant Agreement therein referred to, surrenders this
Warrant Certificate and all right, title and interest therein and directs that
the shares of Common Stock deliverable upon such exercise be registered or
placed in the name and at the address specified below and delivered thereto.
The signature below must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatsoever, and must be guaranteed.
Dated:
----------------------------------------
(Signature of Holder)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
----------------------------------------
Signature Guaranteed by:
----------------------------------------
(Signature must be guaranteed by an
eligible guarantor institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
guarantee medallion program pursuant
to Securities Exchange Commission
Rule 17Ad-5)
Common Stock to be issued to:
Please insert social security or identifying number:
Name:
---------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
A-20
--------------------------------------------------------------------------------
City, State and Zip Code:
--------------------------------------------------------------------------------
Any unexercised Warrants represented by the Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
---------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
--------------------------------------------------------------------------------
City, State and Zip Code:
Any unexercised Warrants represented by the Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
-----------------------
Street Address:
-----------------------
City, State and Zip Code:
-----------------------
A-21
(TO BE ATTACHED TO GLOBAL CERTIFICATES)
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Unit shall represent [____]Warrants unless otherwise
indicated below.
The following increases or decreases in this Global Unit have been made:
AMOUNT OF AMOUNT OF
DECREASE IN INCREASE IN
NUMBER OF NUMBER OF NUMBER OF WARRANTS
WARRANTS WARRANTS EVIDENCED BY THIS GLOBAL SIGNATURE OF
EVIDENCED BY THE EVIDENCED BY THE UNIT FOLLOWING SUCH AUTHORIZED
DATE GLOBAL UNIT GLOBAL UNIT DECREASE OR INCREASE OFFICER OF AGENT
--------- ---------------- ---------------- ------------------------- ----------------
A-22
EXHIBIT B
INSTRUCTION TO DISREGARD REMARKETING
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Floor ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Warrant and Income Redeemable Equity Securities ("WIRES") Units
("Securities") of IndyMac Bancorp, Inc. and IndyMac Capital Trust I
The undersigned Holder hereby advises you that it has elected NOT to
participate in the Remarketing set forth below with respect to the corresponding
number of Preferred Securities that are a component of Securities of which the
undersigned is the beneficial owner:
Remarketing Settlement
Date:
---------------------------
Number of Preferred
Securities NOT to
Remarket:
---------------------------
B-1
The notification to the Remarketing Agent to be sent by you on the
Business Day immediately preceding the above Remarketing Date shall NOT include
the aggregate number of Preferred Securities set forth above. Unless otherwise
defined herein, terms defined in the Unit Agreement dated November ____, 2001
with IndyMac Bancorp, Inc. and IndyMac Capital Trust I are used herein as
defined therein. This notice is being delivered pursuant to Section 5.1 of the
Unit Agreement relating to the Securities.
Date: ---------------------------------------
------------------------ Signature
Signature Guarantee:
Please print name and address of Registered Holder:
----------------------------- --------------------------------------
Name Social Security of other Taxpayer
Identification Number, if any
Address
-----------------------------
-----------------------------
-----------------------------
B-2
EXHIBIT C
NOTICE OF ELECTING REMARKETING HOLDER
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
(Address)
Attention:
Re:
Warrant and Income Redeemable Equity Securities ("WIRES") Units
("Securities") of IndyMac Bancorp, Inc. and IndyMac Capital Trust I
Reference is made to IndyMac Bancorp, Inc.'s notice of Redemption dated
__________, 200___ notifying Holders of the Securities of the redemption of the
Warrants on ___________, 200___ . This notice constitutes an election by the
undersigned NOT to redeem the Warrants identified below. The undersigned hereby
advises you of its election to exercise the following number of Warrants which
constitute component parts of Securities beneficially owned by the undersigned:
Number of Warrants
to
Be Exercised:
--------------
C-1
Unless otherwise defined herein, terms defined in the Unit Agreement
dated __________, 2001 with IndyMac Bancorp, Inc. and IndyMac Capital Trust I
are used herein as defined therein. This notice is being delivered pursuant to
Section 5.1 of the Unit Agreement.
Date: ----------------------------------------
--------------------------- Signature
Signature Guarantee:
Please print name and address of Registered Holder:
-------------------------------- ----------------------------------------
Name Social Security of other Taxpayer
Identification Number, if any
Address
--------------------------------
--------------------------------
--------------------------------
C-2
EXHIBIT D
NOTICE OF CHANGE OF CONTROL REDEMPTION ELECTION
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Floor ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Warrant and Income Redeemable Equity Securities ("WIRES") Units
("Securities") of IndyMac Bancorp, Inc. and IndyMac Capital Trust I
Reference is made to IndyMac Bancorp, Inc.'s notice of a Change of
Control dated ____________, 200___ . The undersigned hereby advises you of its
election to have the following number of Warrants which constitute component
parts of Securities beneficially owned by the undersigned redeemed pursuant to
the aforementioned notice:
Number of Warrants to Be Redeemed.______________________________________________
Unless otherwise defined herein, terms defined in the Unit Agreement
dated November __, 2001 with IndyMac Bancorp, Inc., and IndyMac Capital Trust I
are used herein as defined therein. This notice is being delivered pursuant to
Section 5.3 of the Unit Agreement.
Date: ----------------------------------
------------------------ Signature
Signature Guarantee:
----------------------------------
Please print name and address of Registered Holder:
----------------------------------
Name Social Security of other Taxpayer
------------------------- Identification Number, if any
Address
-----------------------------
-----------------------------
-----------------------------
D-1
EXHIBIT E
NOTICE OF CHANGE OF CONTROL EXCHANGE AND REPURCHASE
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Floor ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Warrant and Income Redeemable Equity Securities ("WIRES") Units
("Securities") of IndyMac Bancorp, Inc. and IndyMac Capital Trust I
Reference is made to IndyMac Bancorp, Inc.'s notice of a Change of
Control dated ___________, 200___ . The undersigned Holder hereby advises you
that it has elected (i) to have the number of Preferred Securities set forth
below exchanged for an equivalent Accreted Value of Debentures and (ii) to have
such Debentures repurchased by IndyMac Bancorp, Inc., or its successor, as
provided in the Unit Agreement, the Trust Agreement and the Indenture:
Number of Preferred Securities to Exchange:
-------------------------------------
Number of Debentures to Repurchase:
-------------------------------------
Unless otherwise defined herein, terms defined in the Unit Agreement
dated November __, 2001 with IndyMac Bancorp, Inc., and IndyMac Capital Trust I
(the "Unit Agreement") are used herein as defined therein. This notice is being
delivered pursuant to Section 5.3 of the Unit Agreement.
Date: ---------------------------- ---------------------------------------
Signature
Signature Guarantee:
---------------------------------------
Please print name and address of Registered Holder:
---------------------------------- ---------------------------------------
Name Social Security of other Taxpayer
Identification Number, if any
Address
----------------------------------
----------------------------------
----------------------------------
I-1