EXHIBIT 99(a)(12)
IMPAC MORTGAGE HOLDINGS, INC.
AND
IBJ WHITEHALL BANK & TRUST COMPANY
As Trustee
First Supplemental Indenture
Dated as of March 29, 1999
To
Indenture
Dated as of March 29, 1999
11% Senior Subordinated Debentures due February 15, 2004
FIRST SUPPLEMENTAL INDENTURE, dated as of March 29, 1999, between Impac
Mortgage Holdings, Inc., a corporation duly organized and existing under the
laws of the State of Maryland (herein called the "Company"), having its
principal office at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and IBJ Whitehall Bank & Trust Company, a New York banking corporation, as
Trustee (herein called the "Trustee") under the Indenture dated as of March 29,
1999 between the Company and the Trustee (the "Indenture"). All terms used in
this First Supplemental Indenture which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
RECITALS OF THE COMPANY
WHEREAS, the Company has executed and delivered the Indenture to the
Trustee to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), said
Securities to be issued in one or more series as provided in the Indenture.
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its 11% Senior Subordinated Debentures due February 15, 2004 (herein called the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture.
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, and to make the Debentures, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been done.
Now, Therefore, This First Supplemental Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Debentures
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Debentures and the terms, provisions
and conditions thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE DEBENTURES
Section 101. Section 301 of the Indenture is hereby amended by adding the
following Section 301.1:
Section 301.1 11% Senior Subordinated Debentures due February 15,
2004
There shall be and is hereby authorized:
(1) A series of Securities designated the "11% Senior Subordinated
Debentures due February 15, 2004" (the "Debentures").
(2) This series is limited in aggregate principal amount to no more
than $35,000,000, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of
Debentures.
(3) Principal and interest on the Debentures will be payable to all
Holders of record on the last day of the month preceding the relevant
Interest Payment Date.
(4) The Debentures shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon on
February 15, 2004, except as otherwise provided in Section 301.1(6),
below.
(5) The Debentures shall bear interest at the rate of 11% per annum
from their date of original issuance, payable quarterly on February
15, May 15, August 15 and November 15, or, in the event that such
15/th/ day is not a Business Day, then on the Business Day immediately
following such 15/th/ day (and without any interest or other payment
in respect of any such delay) in each case with the same force and
effect as if made on such date (each an "Interest Payment Date"),
commencing on May 15, 1999. The amount of interest payable for any
period will be computed on the basis of a 360-day year of twelve 30-
day months. Interest will accrue from the date of original issuance
to, but not including, the relevant Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such
Regular Record Date, and may be paid to the person in whose name the
Debenture (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date to be fixed by the Trustee
for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of the Debentures not less than 10
days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture.
(6) The Company may at any time before the day which is 15 days before
February 15, 2004, make a one time election to extend the Maturity to
May 15, 2004, provided that,
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(i) the Company gives notice of its election to the Holders and the
Trustee and (ii) an Event of Default does not exist at the date of
notice of the extension. In the event the Company elects to extend the
Maturity, interest will accrue from and after February 15, 2004 to the
extended Maturity at the rate of 11.025% per annum.
(7) Principal and interest on the Debentures will be payable, the
transfer of such Debentures will be registrable and such Debentures
will be exchangeable for the Debentures bearing identical terms and
provisions at the Corporate Trust Office of the Trustee from time to
time, which is initially in New York, New York; provided, however,
that payment of interest may be made at the option of the Company by
(i) check mailed to the registered holder at such address as shall
appear in the Security Register or (ii) transfer to an account
maintained by the payee in the United States.
(8) The Debentures will be redeemable in whole at any time or in part
from time to time, any time on or after February 15, 2001and prior to
Maturity at the option of the Company, upon not less than 30 nor more
than 60 days' notice, at the principal amount to be redeemed, together
with accrued and unpaid interest thereon, if any, to the date fixed
for redemption.
(9) The Company will not establish a sinking fund for the retirement
of the Debentures.
(10) The Debentures will be issuable in denominations of $25 and any
integral multiple thereof.
(11) The Debentures shall be defeasible pursuant to Section 1302 and
Section 1303 of the Indenture.
ARTICLE TWO
FORM OF DEBENTURES
Section 201. The Debentures and the Trustee's certificate of
authentication to be endorsed thereon are to be substantially in the following
form:
IMPAC MORTGAGE HOLDINGS, INC.
11% Senior Subordinated Debentures due February 15, 2004
No. _____________ $_________
CUSIP NO. 45254P
Impac Mortgage Holdings, Inc., a corporation duly organized and existing
under the laws of Maryland (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________________ or
registered assigns, the ______________ principal sum of Dollars on
February 15, 2004,
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unless extended to a date no later than May 15, 2004, and to pay interest
thereon from the original date of issuance or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly on
February 15, May 15, August 15 and November 15 in each year, commencing May 15,
1999, at the rate of 11% per annum, until the principal hereof is paid or made
available for payment, provided that any principal and any such installment of
interest outstanding after February 15, 2004 shall bear interest at the rate of
11.025% per annum. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 31, April 30, July 31 or October 31
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in New York, New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
(i) check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register; or (ii) transfer to an account maintained
by the payee located in the United States.
Reference is hereby made to the further provisions of this Security 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
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
IMPAC MORTGAGE HOLDINGS, INC.
By:_____________________________
Attest:
______________________________
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _______ __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and IBJ Whitehall Bank & Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
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statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $35,000,000.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail, at any time after February 15, 2001, in whole at any
time or in part from time to time, at the election of the Company, at a
Redemption Price equal to 100% of the principal amount, together with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof for such
interest installments, all as provided in the Indenture. The Indenture provides
that a notice of redemption may be given that is conditional upon the receipt by
the Trustee on or prior to the Redemption Date of amounts sufficient to pay
principal of, and premium, if any, and interest on, the Securities to be
redeemed, and that if such amounts shall not have been so received, said notice
shall be of no force and effect, the Securities to be redeemed will not become
due and payable on the Redemption Date, and the Company will not be required to
redeem such Securities on such date.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities of this series are subordinate in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full of all Obligations on Senior Indebtedness, including any Designated
Senior Indebtedness, of the Company. To the extent and in the manner provided in
the Indenture, Obligations on Senior Indebtedness, including any Designated
Senior Indebtedness, must be paid before any payment may be made to any Holder
of this Security. Any Holder by accepting this Security agrees to the
subordination and authorizes the Trustee to give it effect.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee without
the consent of any Holders in certain limited cases, and with the consent of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected subject to certain exceptions. The
Indenture also contains provisions permitting the
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Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver shall be conclusive and binding upon the Holder of
this Security and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25.00 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge
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payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
I or we assign and transfer this Security to:
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(Insert social security or other identifying number of assignee.)
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----------------------------------------------------------------
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(Print or type name, address and zip code of assignee)
and irrevocably appoint Agent to
-------------------------------
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated:
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Signed:
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(Sign exactly as name appears on the other side of this Security)
ARTICLE THREE
ADDITIONAL COVENANTS
Section 301. Definitions for purposes of this Article Three, except as
otherwise expressly provided: "Consolidated Net Worth" as of any date of
----------------------
determination means the consolidated net worth of the Company and its
consolidated Subsidiaries as determined in accordance with GAAP.
Section 302. Minimum Equity.
The Company shall, at all times while any of the Debentures remain
Outstanding, maintain Consolidated Net Worth of the lesser of $70 million or two
times the aggregate principal amount of Debentures issued.
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ARTICLE FOUR
APPLICATION OF ARTICLE FOURTEEN
Section 401. The Debentures will be subject to the subordination
provisions of Article Fourteen of the Indenture. Notwithstanding the definition
of Senior Indebtedness in the Indenture, for purposes of the Debentures, Senior
Indebtedness will include Designated Senior Indebtedness.
ARTICLE FIVE
ORIGINAL ISSUE OF DEBENTURES
Section 501. Debentures in the aggregate principal amount of $7,747,100,
may, upon execution of this First Supplemental Indenture, or from time to time
thereafter, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures upon receipt of a Company Order.
ARTICLE SIX
PAYING AGENT, EXCHANGE AGENT AND TRANSFER AGENT
Section 601. The Trustee will be the Paying Agent, Exchange Agent and
Transfer Agent for the Debentures.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed all as of the day and year first above written.
IMPAC MORTGAGE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Its: Executive Vice President &
---------------------------
Chief Financial Officer
Attest:
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Its: Secretary
------------------------
IBJ WHITEHALL BANK & TRUST COMPANY,
As Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Its: Assistant Vice President
-------------------------
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------
Its: Assistant Secretary
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State of California )
) ss.:
County of Orange )
On the 26 day of March 1999, before me personally came ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to
me known, who being by me duly sworn, did depose and say that she/he is the EVP,
CFO of Impac Mortgage Holdings, Inc., one of the corporations described in and
which executed the foregoing instrument; and that she/he signed her/his name
thereto by the authority of the Board of Directors of said Corporation.
Official Seal Official Stamp
▇. ▇▇▇▇▇
(seal)
State of New York, )
) ss.:
County of ________ )
On the 29 day of March, 1999, before me personally came ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
to me known, who being by me duly sworn, did depose and say that she/he is the
AVP of IBJ Whitehall Bank & Trust Company, one of the corporations described in
and which executed the foregoing instrument; that she/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that she/he signed her/his name thereto by like authority.
Official Seal Official Stamp
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(seal)
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