Exhibit 1.1
EXECUTION VERSION
Certain portions of this Exhibit have been
redacted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with [***] to indicate where redactions
have been made. The marked information has been excluded from the Exhibit because it both (i) is not material and (ii) would
be competitively harmful to the Company if publicly disclosed. The Company agrees to furnish supplementally an unredacted copy of this
Exhibit to the SEC upon request.
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT
(this “Agreement”) is entered into as of July 19, 2022, by and between Ready Capital Corporation, a Maryland corporation
(the “Company”), Sutherland Partners, L.P., a Delaware limited partnership (the “Operating Partnership”),
and Waterfall Asset Management, LLC, a Delaware limited liability company (the “Manager”), and each purchaser identified
on Appendix A hereto (each, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), the Company desires to issue, and each Purchaser, severally and not jointly, desires to purchase
$80,000,000 aggregate principal amount of the Company’s 7.375% Senior Notes due 2027 (the “Notes”) upon the terms
and conditions as more particularly provided herein.
WHEREAS, the Company and the
Operating Partnership have entered into that certain Amended and Restated Management Agreement, dated as of May 9, 2016, as amended
by the First Amendment to the Management Agreement, dated as of December 6, 2020 (as so amended, the “Management Agreement”),
with the Manager, pursuant to which the Manager acts as the manager and adviser of the Company, the Operating Partnership and their respective
subsidiaries.
NOW, THEREFORE, in consideration
of the foregoing and of the mutual agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the Company and each Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE; CLOSING
1.1 Authorization
of the Notes. The Company will authorize the issue and sale of $80,000,000 aggregate principal amount of the Notes. The Notes will
be issued pursuant to an indenture (the “Base Indenture”) dated as of August 9, 2017 between the Company and U.S.
Bank National Association, as trustee (the “Trustee”), as supplemented by an eighth supplemental indenture (the “Eighth
Supplemental Indenture” and together with the Base Indenture, the “Indenture”) dated as of July 25,
2022, each between the Company and the Trustee.
1.2 Purchase
and Sale of the Notes. At the Closing (as defined in Section 1.3), the Company shall sell to each Purchaser, and each Purchaser,
severally and not jointly, shall buy from the Company, upon the terms and conditions hereinafter set forth, Notes in the aggregate principal
amount specified opposite such Purchaser’s name on Appendix A to this Agreement at the purchase price of $975.00
per Note.
1.3 The
Closing. The completion of the purchase and sale of the Notes (the “Closing”) shall occur at 10:00 a.m. (Eastern
time), on July 25, 2022 (the “Closing Date”) at the offices of Ropes & Gray LLP, or at such other time,
date and location as the parties shall mutually agree. At the Closing, (a) the purchase price for the Notes being purchased by each
Purchaser (the “Purchase Price”) shall be delivered by or on behalf of such Purchaser to the Company as more particularly
provided in Section 1.4 and (b) the Company shall cause the Trustee to deliver to each Purchaser the aggregate principal amount
of the Notes as specified on Appendix A to this Agreement and as more particularly provided in Section 1.5.
1.4 Delivery
of the Purchase Price. At the Closing, each Purchaser shall remit by wire transfer the amount of funds equal to the Purchase Price
with respect to the Notes being purchased by it to the account designated by the Company on Appendix B hereto.
1.5 Delivery
of the Notes. On the Closing Date, each Purchaser shall direct the broker-dealer at which the account or accounts to be credited with
the Notes being purchased by such Purchaser are maintained (which broker/dealer shall be a Depository Trust Company participant) to set
up a Deposit/Withdrawal at Custodian (“DWAC”) instructing the Trustee to credit such account or accounts with the Notes
purchased by such Purchaser by means of an electronic book-entry delivery. Such DWAC shall indicate the Closing Date as the settlement
date for the deposit of the Notes being purchased by such Purchaser. Immediately following the delivery to the Company by or on behalf
of each Purchaser of the Purchase Price in accordance with and pursuant to Section 1.4, the Company shall direct the Trustee to credit
such Purchaser’s account or accounts with the Notes being purchased by such Purchaser pursuant to the information contained in the
DWAC.
1.6 Conditions
to the Company’s Obligations. The Company’s obligation to sell and issue the Notes to each Purchaser will be subject to
the receipt by the Company of the respective Purchase Price from such Purchaser as set forth in Section 1.4 and the accuracy of the
representations and warranties made by such Purchaser and the fulfillment of those undertakings of such Purchaser to be fulfilled prior
to the Closing Date.
1.7 Conditions
to Purchaser’s Obligations. Each Purchaser’s obligation to purchase the respective Notes to be purchased by it hereunder
is subject to the fulfillment to each such Purchaser’s reasonable satisfaction, prior to or at such Closing, of the following conditions:
(a) The
representations and warranties of the Company, the Operating Partnership and the Manager in this Agreement shall be correct when made
and at such Closing.
(b) The
Company, the Operating Partnership and the Manager shall have performed and complied with all agreements and conditions contained in this
Agreement required to be performed or complied with by it prior to or at such Closing.
(c) The
Company shall have delivered to each such Purchaser an officer’s certificate from the Company’s Chief Executive Officer, dated
the date of such Closing, certifying that the conditions specified in Sections 1.7(a) and 1.7(b) have been fulfilled.
(d) The
Company shall have delivered to each such Purchaser a certificate of its Secretary, dated the date of such Closing, certifying as to (i) the
resolutions attached thereto and other corporate proceedings relating to the authorization, issuance and sale of the Notes and the authorization,
execution and delivery of this Agreement and (ii) the Company’s organizational documents as then in effect.
(e) The
Company shall have requested and caused each of Alston & Bird LLP and Venable LLP, counsel for the Company, to have furnished
to the Purchasers at the Closing one or more opinions in form and substance reasonably satisfactory to the Purchasers.
(f) The
Notes shall have received a rating of BBB+ or better by Egan-Jones Ratings Company.
(g) The
description of the Notes in the Prospectus (as hereinafter defined) shall be in a form approved by the Purchasers and contained in Exhibit A
of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Purchaser
Representations and Warranties. In connection with the purchase and sale of the Notes, each Purchaser represents and warrants, severally
and not jointly, to the Company that:
(a) Such
Purchaser is acquiring the Notes for such Purchaser’s account and with no view to the distribution thereof. Such Purchaser has no
present intent, agreement, understanding or arrangement to sell, assign or transfer all or any part of the Notes, or any interest therein,
to any other person.
(b) Such
Purchaser in connection with its decision to purchase the Notes, relied only upon the Prospectus (as hereinafter defined) and the representations
and warranties of the Company contained herein. Further, such Purchaser acknowledges that the Prospectus Supplement (as defined below)
was made available to Purchaser before this Agreement (or any contractual obligation of such Purchaser to purchase the Notes) will be
deemed to be effective.
(c) Such
Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby
and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. Eagle Point Credit Management
LLC, in its capacity as agent and/or investment manager of each Purchaser, is duly authorized and empowered to execute this Agreement
on behalf of each Purchaser. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Purchaser
and this Agreement constitutes a valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with
its terms.
(d) Such
Purchaser understands that nothing in this Agreement or any other materials presented to Purchaser in connection with the purchase and
sale of the Notes constitutes legal, tax or investment advice. Such Purchaser has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Notes.
2.2 Company
and Operating Partnership Representations and Warranties. In connection with the purchase and sale of the Notes, the Company and the
Operating Partnership represent and warrant to each Purchaser that:
(a) The
Company and each subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary”
and, together, the “Significant Subsidiaries”) has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which
its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary
to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business,
management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole (a “Material
Adverse Effect”) or on the performance by the Company or the Operating Partnership of its obligations under this Agreement.
(b) The
execution and delivery of, and the performance by each of the Company and the Operating Partnership of its obligations under (including
the issuance and sale of the Notes and the use of proceeds from the sale of the Notes as described in the Prospectus under the caption
“Use of Proceeds”), this Agreement have been duly and validly authorized by the Company and the Operating Partnership, and
this Agreement has been duly executed and delivered by the Company and the Operating Partnership and, assuming due authorization, execution,
delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement
constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and
the Operating Partnership in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be
limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of
the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles,
regardless whether enforcement is considered in a proceeding in equity or at law. The execution and delivery of, and the performance by,
the Company of its obligations under the Indenture have been duly and validly authorized by the Company, and the Indenture constitutes
the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy
and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general
equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(c) The
Notes to be issued and sold by the Company to the Purchasers hereunder have been duly and validly authorized and, when issued, authenticated
and delivered against payment therefor in accordance with this Agreement and the Indenture, will constitute valid and legally binding
obligations of the Company, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement
is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of remedies and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(d) The
Management Agreement pursuant to which the Manager acts as the manager and adviser of the Company, the Operating Partnership and their
respective subsidiaries, has been duly authorized, executed and delivered by each of the Company, the Operating Partnership and their
respective subsidiaries, as applicable, and constitutes a valid and binding agreement of each of the Company, the Operating Partnership
and their respective subsidiaries enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles;
and the Operating Partnership’s Third Amended and Restated Agreement of Limited Partnership, dated as of March 5, 2019, has
been duly authorized, executed and delivered by the Operating Partnership and constitutes a valid and binding agreement of the Operating
Partnership enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(e) The
note to be issued by the Operating Partnership to the Company upon the issuance, sale and delivery of the Notes hereunder (the “Mirror
Note”) has been duly and validly authorized and, when issued, against payment therefor, will constitute the valid and legally
binding obligation of the Operating Partnership, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles,
regardless whether enforcement is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of
remedies. Neither the Company nor the subsidiaries, or any of their respective directors, officers, representatives or affiliates has
taken, nor will take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Notes in a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(f) The
offering and sale of the Notes hereunder are being made pursuant to a Registration Statement on Form S-3 (File No. 333-263756),
filed with the Securities and Exchange Commission (the “Commission”) with immediate effectiveness on March 21,
2022 (the “Registration Statement”), and the base prospectus, dated March 21, 2022, including all documents incorporated
by reference therein (the “Base Prospectus”), as supplemented by the prospectus supplement, dated the date hereof (the
“Prospectus Supplement”), that will be filed with the Commission on or before the Closing Date. “Prospectus,”
as used herein, means the Base Prospectus and the Prospectus Supplement (including all documents incorporated therein by reference). No
stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission;
and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(g) The
Registration Statement, as of each effective date and as of the date hereof and at the Closing Date, did not, and does not contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date
hereof and at the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading; the documents incorporated by reference
in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated
by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement
or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading.
(h) The
financial statements, together with related schedules and notes, included in the Registration Statement and the Prospectus present fairly
in all material respects the consolidated financial condition, results of operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form with the applicable accounting requirements of the Exchange Act, and have been prepared in
conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); the other financial information and data included in the Registration Statement and the Prospectus are accurately
derived from such financial statements and the books and records of the Company.
(i) Neither
the issuance and sale of the Notes, the execution, delivery or performance of this Agreement or the Indenture by the Company or the Operating
Partnership, nor the consummation by the Company or the Operating Partnership of the transactions herein or therein contemplated, (i) conflicts
or will conflict with or constitutes or will constitute a breach of the charter, bylaws or other organizational documents of the Company
or the Operating Partnership, (ii) conflicts or will conflict with or constitutes or will constitute a breach of or a default under,
any material agreement, indenture, lease or other instrument to which the Company or any subsidiary is a party or by which it or any of
its properties may be bound, except for such conflicts that would not reasonably be expected to result in a Material Adverse Effect or
(iii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable
to the Company or any subsidiary or any of their properties or will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of the Company or any subsidiary is subject, except for such violations
that would not reasonably be expected to result in a Material Adverse Effect.
(j) No
approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement and the Indenture
by the Company or the Operating Partnership, as applicable, and their consummation of the transactions contemplated herein or thereunder
(including the Company’s sale and delivery of the Notes), other than (A) such as have been obtained, or will have been obtained
at the Closing Date under the Securities Act, the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder, and the Exchange Act, (B) such approvals as have been obtained under the rules and regulations of FINRA and (C) any
necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Notes are being offered.
(k) Except
as described in the Registration Statement and the Prospectus, there are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending to which the Company or any subsidiary is a party or to which any property of the Company or any subsidiary
is the subject that, if determined adversely to the Company or any subsidiary, could reasonably be expected to have a Material Adverse
Effect; and no such investigations, actions, suits or proceedings are, to the knowledge of the Company and the Operating Partnership,
threatened in writing by any governmental or regulatory authority or by others.
(l) The
operations of the Company and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the
applicable anti-money laundering statutes of jurisdictions where the Company and each of its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the best knowledge of the Company and the Operating Partnership, threatened.
(m)
The Company shall apply the net proceeds of the sale of the Notes in accordance with its statements under the caption “Use of Proceeds”
in the Registration Statement and the Prospectus.
(n)
(1) None of the Company, any of its subsidiaries, or any director, officer, or employee thereof, or, to the knowledge of the Company
and the Operating Partnership, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity
(“Person”) that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any
sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations
Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
or
(B) located, organized
or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the so-called Donetsk People’s
Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria).
(2) The Company will
not, directly or indirectly, use the proceeds from the sale of the Notes hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate
any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or
(B) in any other manner
that will result in a violation of Sanctions by any Person (including any Person participating in the offering of the Notes, whether as
advisor, investor or otherwise).
(3) The Company and each
of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(o) Neither
the Company nor any subsidiary is or, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof
received by the Company as described in the Registration Statement and the Prospectus, will be required to register as an “investment
company” under the Investment Company Act of 1940), as amended, and the rules and regulations of the Commission thereunder.
(p) The
Company shall, by 5:30 p.m. Eastern time on the second trading day immediately following the date of this Agreement, issue a Current
Report on Form 8-K including the form of this Agreement and an opinion of legal counsel as to the validity of the Notes as exhibits
thereto.
(q) The statements in
the Prospectus under the headings “Additional U.S. Federal Income Tax Considerations” and “U.S. Federal Income Tax Considerations”
fairly summarize in all material respects the legal matters therein described.
(r) The
Company has elected to be taxed as a real estate investment trust (“REIT”) for U.S. federal income tax purposes, commencing
with its taxable year ended December 31, 2011, and has maintained such election through the date hereof. All statements regarding
the Company’s qualification and taxation as a REIT and descriptions of the Company’s organization and operations set forth
in the Prospectus are true, complete and correct in all material respects.
(s) There
are no transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale of the Notes.
(t) The
Company and each subsidiary have filed all necessary U.S. federal, state, local and foreign taxes and tax returns which have been required
to be filed, except insofar as the failure to file such returns would not result in a Material Adverse Effect, and have paid all taxes
required to be paid by them, whether or not shown as due on such returns, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided or with respect to which the failure to pay such taxes would not result in
a Material Adverse Effect; and except as otherwise disclosed in the Registration Statement and the Prospectus, there is no material tax
deficiency that has been asserted against the Company, any subsidiary or any of their respective properties or assets, and there is no
tax audit of Company of any subsidiary that is pending or threatened in writing and is reasonably expected to have a Material Adverse
Effect.
2.3 Manager
Representations and Warranties. The Manager represents and warrants to each Purchaser as follows:
(a) The
Manager has been duly organized and is validly existing and in good standing under the laws of the State of Delaware, is duly qualified
to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business
requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the business in which
it is engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually
or in the aggregate, have a material adverse effect (a “Manager Material Adverse Effect”) on the performance by the
Manager of its obligations under the Management Agreement.
(b) The
Manager has full right, power and authority to execute and deliver this Agreement, and all action required to be taken for the due and
proper authorization, execution and delivery by it of this Agreement has been duly and validly taken.
(c) This
Agreement has been duly authorized, executed and delivered by the Manager.
(d) The
execution, delivery and performance by the Manager of this Agreement or the performance by the Manager of the Management Agreement will
not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Manager pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Manager is a party or by which the Manager is bound
or to which any of the property or assets of the Manager is subject, (ii) result in any violation of the provisions of the charter
or by-laws or similar organizational documents of the Manager or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation, default, creation or imposition that would not, individually or in the aggregate,
reasonably be expected to have a Manager Material Adverse Effect.
(e) No
consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the Manager of this Agreement or the performance by the
Manager of the Management Agreement.
(f) There
are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Manager is or may be a party
or to which any property of the Manager is or may be the subject that, if determined adversely to the Manager, could reasonably be expected
to have a Manager Material Adverse Effect, and no such investigations, actions, suits or proceedings are, to the knowledge of the Manager,
threatened in writing by any governmental or regulatory authority or others.
(g) Any
financial or other data regarding the Manager that is included in the Registration Statement and the Prospectus is derived from the Manager’s
accounting or other applicable records and is accurate in all material respects.
(h) The
Management Agreement has been duly authorized, executed and delivered by the Manager and constitutes a valid and legally binding agreement
of the Manager, enforceable against the Manager in accordance with its terms, except as rights to indemnity and contribution thereunder
may be limited by federal or state securities laws or principles of public policy and except to the extent that enforcement thereof may
be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’
rights or by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
ARTICLE III
OTHER AGREEMENT OF THE PARTIES
3.1 It
is the intent of the parties to this Agreement that in no event shall Purchasers, by reason of this Agreement or the transactions contemplated
thereby, be deemed to control, directly or indirectly, the Company, and Purchasers shall not exercise, or be deemed to exercise, directly
or indirectly, a controlling influence over the management or policies of the Company.
ARTICLE IV
GENERAL PROVISIONS
4.1 Survival
of Representations, Warranties and Agreements. Notwithstanding any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and each Purchaser hereby will survive the execution of this Agreement,
the delivery to such Purchaser of the Notes and the payment by such Purchaser of the Purchase Price therefor for a period of one year.
4.2 Entire
Agreement. This Agreement represents the entire agreement among the parties with respect to the transactions contemplated herein and
supersedes all prior agreements, written or oral, with respect thereto.
4.3 Amendment
and Waiver. The provisions of this Agreement may be amended only with the prior written consent of the Company and each Purchaser.
The failure of any party to insist upon strict adherence to any one or more of the covenants and restrictions in this Agreement, on one
or more occasion, shall not be construed as a waiver, nor deprive such party of the right to require strict compliance thereafter with
the same. All waivers must be in writing and signed by the waiving party.
4.4 Expenses.
The Company and the Operating Partnership will pay all reasonable and documented out of pocket expenses up to $75,000 (subject to increase
with the Company’s approval, with such approval not to be unreasonably withheld) incurred by the Purchasers in connection with the
negotiation of this Agreement, the performance of their obligations hereunder, and the consummation of the transactions contemplated by
this Agreement (including expenses of one external legal counsel).
4.5 Successors
and Assigns. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any party without the prior written consent of each other party, except that the Notes may be
transferred by each Purchaser without the consent of the Company.
4.6 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect
to the choice of law principles thereof.
4.7 Counterparts.
This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by
the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable
law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
4.8 Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person
or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor
in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision,
or the application thereof, in any other jurisdiction.
4.9 Construction.
Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance
with any other covenant. Where any provision herein refers to action to be taken by any person, or which such person is prohibited from
taking, such provision shall be applicable whether such action is taken directly or indirectly by such person, whether or not expressly
specified in such provision. The construction of this Agreement shall not be affected by which party drafted this Agreement.
4.10 Headings.
The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
4.11 Further
Assurances. In connection with this Agreement and the transactions contemplated herein, the parties to this Agreement shall execute
and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate
and perform the provisions of this Agreement and such transactions.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed
this Purchase Agreement on the date first written above.
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PURCHASER: |
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By: |
EAGLE POINT CREDIT MANAGEMENT LLC
On behalf of each Purchaser listed on Appendix A hereto |
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/s/ Taylor Pine |
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Name: |
Taylor Pine |
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Title: |
Director |
[Signature Page to the
Note Purchase Agreement]
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READY CAPITAL CORPORATION |
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By: |
/s/ Thomas E. Capasse |
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Name: Thomas E. Capasse |
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Title: Chairman of the Board & Chief Executive Officer |
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SUTHERLAND PARTNERS, L.P. |
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By: Ready Capital Corporation, its General Partner |
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By: |
/s/ Thomas E. Capasse |
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Name: Thomas E. Capasse |
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Title: Chairman of the Board & Chief Executive Officer |
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WATERFALL ASSET MANAGEMENT, LLC |
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By: |
/s/ Thomas E. Capasse |
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Name: Thomas E. Capasse |
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Title: Member |
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By: |
/s/ Jack J. Ross |
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Name: Jack J. Ross |
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Title: Member |
[Signature Page to the Note Purchase Agreement]
Exhibit A
Agreed Upon Form of Description of the
Notes
(See following pages)
DESCRIPTION OF THE NOTES
We will issue the notes offered by this prospectus
supplement (the “notes”) under an indenture, which we refer to as the base indenture, dated as of August 9, 2017, between
us and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee, which we refer to as
the trustee, as supplemented by a supplemental indenture establishing the terms of the notes, which we refer to as the supplemental indenture.
We refer to the base indenture and the supplemental indenture, collectively, as the indenture. The terms of the notes include those expressly
set forth in the indenture and those made part of the indenture by reference to the Trust Indenture Act.
You may request a copy of the indenture from us
as described below under “Where You Can Find More Information and Incorporation by Reference.”
The following description is a summary of the material
provisions of the notes and (solely as it applies to the notes) the indenture and does not purport to be complete. This summary is subject
to, and is qualified by reference to, all the provisions of the notes and the indenture, including the definitions of certain terms used
in the indenture. We urge you to read these documents because they, and not this description, define your rights as a holder of the notes.
This description of the notes supplements and,
to the extent it is inconsistent with, replaces the description of the general provisions of the debt securities and the base indenture
in the accompanying prospectus. For purposes of this description, references to “Ready Capital Corporation,” “our company,”
“we,” “our” and “us” refer solely to Ready Capital Corporation and not to its subsidiaries.
General
The notes will be a single series under the indenture,
initially in the aggregate principal amount of $80.0 million. The notes will be issued only in fully registered form without coupons,
in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The notes will be evidenced by one or more global
notes in book-entry only form, except under the limited circumstances described under “— Certificated Notes.” There
is no public market for the notes and an active market for the notes may never develop.
The notes will not be convertible into, or exchangeable
for, shares of our common stock or any other securities.
Ranking
The notes:
| • | will be senior unsecured obligations of Ready Capital Corporation; |
| • | will not be guaranteed by any of our subsidiaries; |
| • | will rank equal in right of payment with all of our other existing and future unsecured and unsubordinated indebtedness; |
| • | will be effectively subordinated to any of our and our subsidiaries’ existing and future secured indebtedness to the extent
of the value of our assets securing such indebtedness; and |
| • | will be structurally subordinated to all existing and future indebtedness and other liabilities (including trade payables) and preferred
stock of our subsidiaries. |
As of March 31, 2022, we had total consolidated
indebtedness to third parties (excluding trade payables and other liabilities) of $9.5 billion, all of which consisted of secured indebtedness
of our subsidiaries, other than $115.0 million aggregate principal amount of our convertible notes, $104.25 million of our 6.20% 2026
notes, $201.25 million of our 5.75% 2026 notes, $110.0 million of our 5.50% 2028 notes and $36.25 million of junior subordinated notes
issued by a subsidiary, each of which are unsecured. On April 18, 2022, we issued $120.0 million aggregate principal amount of our
6.125% 2025 notes.
Our subsidiaries are separate and distinct legal
entities and have no obligation, contingent or otherwise, to pay any amounts due on the notes or to make any funds available to us for
payment on the notes, whether by dividends, loans or other payments, except that we intend to contribute the net proceeds from this offering
to our Operating Partnership in exchange for the issuance by the Operating Partnership of a senior unsecured note (or the Mirror Note)
with terms that are substantially equivalent to the terms of the notes offered by this prospectus supplement. As a result, the Operating
Partnership will be obligated to pay us amounts due and payable under the Mirror Note, which will rank equal in right of payment with
all of the future unsecured and unsubordinated indebtedness of the Operating Partnership. In addition, the payment of dividends and the
making of loans and advances to us by our subsidiaries may be subject to statutory, contractual or other restrictions, may depend on their
earnings, cash flows and financial condition and are subject to various business considerations. As a result, we may be unable to gain
access to the cash flow or assets of our subsidiaries.
Additional Notes
The series of debt securities of which the notes
are a part may be reopened and we may, from time to time, issue additional debt securities of the same series ranking equally and ratably
with the notes and with terms identical to the notes except with respect to issue date, issue price and, if applicable, the date from
which interest will accrue, without notice to, or the consent of, any of the holders of the notes, provided that if any such additional
debt securities are not fungible with the notes for U.S. federal income tax purposes, such additional debt securities will have separate
CUSIP and ISIN numbers from the notes. The additional debt securities will carry the same right to receive accrued and unpaid interest
on the notes, and such additional debt securities will form a single series of debt securities with the notes.
Interest
The notes will bear interest at the rate per annum
set forth on the cover page of this prospectus supplement from, and including, July 25, 2022, and the subsequent interest periods
will be the periods from, and including, an interest payment date to, but excluding, the next interest payment date or the stated maturity
date or earlier redemption or repurchase date, as the case may be. Interest is payable semi-annually in arrears on January 31 and
July 31 of each year, commencing January 31, 2023, to the persons in whose names the notes are registered at the close of business
on January 15 or July 15, as the case may be, immediately before the relevant interest payment date. All payments will be made
in U.S. dollars.
Interest payments will be made only on a Business
Day (as defined below). If any interest payment is due on a non-Business Day, we will make the payment on the next day that is a Business
Day. Payments made on the next Business Day in this situation will be treated under the indenture as if they were made on the original
due date. Such payment will not result in a Default (as defined below) under the notes or the indenture, and no interest will accrue on
the payment amount from the original due date to the next day that is a Business Day.
Interest on the notes will be computed on the basis
of a 360-day year consisting of twelve 30 day months.
“Business Day” means a day other than
a Saturday, Sunday or any other day on which banking institutions in New York City or the location of the corporate trust office of the
trustee are authorized or required by law, regulation or executive order to close.
“Default” means any event that is,
or after notice, passage of time or both would be, an Event of Default (as defined below).
Interest Rate Adjustment of the Notes Based on Certain Rating Events
The initial annual interest rate of 7.375% per
annum is subject to adjustment from time to time based on changes to the ratings of the notes by one or more NRSROs. The annual interest
rate on the notes will increase by 1.00% in excess of the initial rate beginning on the date of the occurrence of an Interest Rate Adjustment
Event (as defined below) and until such date that an Interest Rate Adjustment Event is no longer continuing. Beginning on the date of
the expiration of an Interest Rate Adjustment Event, the Interest Rate will revert to 7.375% per annum. We will use our reasonable best
efforts to maintain a rating from an NRSRO.
An “Interest Rate Adjustment Event”
shall occur if on any day the notes have either a Non-IG Rating (as defined below) or no rating from any NRSRO.
A “Non-IG Rating” will occur if as
of any day:
| • | assuming the notes are rated by only one NRSRO, the then most recent rating from such NRSRO is BB+ or lower; |
| • | assuming the notes are rated by only two NRSROs, the then lower of the most recent ratings from such NRSROs is BB+ or lower; or |
| • | assuming the notes are rated by three or more NRSROs, the then second lowest of the most recent ratings from such NRSROs is a BB+
or lower. |
The ratings categories referred to in the preceding
definitions are those used by Egan-Jones Ratings Company but are deemed to refer also to the equivalent ratings of any other NRSRO.
“NRSRO” means a Nationally Recognized
Statistical Rating Organization as defined pursuant to Section 3(a)(62) of the Exchange Act, including but not limited to Egan-Jones,
in each case, whose ratings for senior indebtedness of issuers similar to us are authorized for use with, and recognized by, the Securities
Valuation Office of the National Association of Insurance Commissioners (the “SVO”) and which rating shall (a) specifically
describe the notes, including their interest rate, maturity and CUSIP and (b) in the event such rating is a “private letter
rating” (i) address the likelihood of payment of both the principal and interest of such notes (which requirement shall be
deemed satisfied if the rating is silent as to the likelihood of payment of both principal and interest and does not otherwise include
any indication to the contrary), (ii) not include any prohibition against sharing such evidence with the SVO or any other regulatory
authority having jurisdiction over the holders of the notes, and (iii) include such other information describing the relevant terms
of the notes as may be required from time to time by the SVO or any other regulatory authority having jurisdiction over the holders of
the notes.
If the interest rate on the notes is increased
as described above, the term “interest,” as used with respect to the notes, will be deemed to include any such additional
interest unless the context otherwise requires.
See “Risk Factors — Risks Related to
the Notes and this Offering — Changes in the ratings of the notes, our credit ratings or the debt markets could adversely affect
the price of the notes.”
Promptly upon determination that an Interest Rate
Adjustment Event has occurred, we will inform the trustee in writing of the occurrence of such Interest Rate Adjustment Event and the
interest rate or margin payable as a result therefrom. Absent manifest error, the determination of the interest rate or margin by us shall
be binding and conclusive on the holders, the trustee, the calculation agent and us.
The trustee shall not be responsible for and makes
no representation as to any act or omission of any NRSRO or any rating with respect to the notes. The trustee shall have no obligation
to independently determine or verify if any Interest Rate Adjustment Event has occurred or notify the holders of any event dependent upon
the rating of the notes, or if the rating on the notes has been changed, suspended or withdrawn by any NRSRO.
Maturity
The notes will mature on July 31, 2027 and
will be paid against presentation and surrender thereof at the corporate trust office of the trustee, unless earlier redeemed by us at
our option as described herein under “— Optional Redemption of the Notes” or repurchased by us as described herein under
“— Certain Covenants — Offer to Repurchase Upon a Change of Control Repurchase Event.” The notes will not be entitled
to the benefits of, or be subject to, any sinking fund.
Optional Redemption of the Notes
Other than as set forth below, the notes are not
redeemable prior to maturity.
Prior to July 31, 2025 (24 months prior to
their maturity date) (the “Make Whole Date”), we may redeem the notes at our option, in whole or in part, at any time and
from time to time at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the
greater of:
(1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming
the notes matured on the Make Whole Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Notes
Treasury Rate plus 50 basis points, less (b) interest accrued to (but not including) the redemption date, and
(2) 100%
of the principal amount of the notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to (but not including)
the redemption date of the notes.
On or after the Make Whole Date and prior to July 31,
2026 (12 months prior to their maturity date), we may redeem the notes, in whole or in part, at any time and from time to time, at a redemption
price equal to 103.688% of the principal amount of the notes being redeemed plus accrued and unpaid interest thereon to (but not including)
the redemption date.
On or after July 31, 2026 and prior to the
maturity date, we may redeem the notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100.0%
of the principal amount of the notes being redeemed plus accrued and unpaid interest thereon to (but not including) the redemption date.
“Notes Treasury Rate” means, with respect to any redemption date of the notes, the yield determined by our company in accordance
with the following two paragraphs.
The Notes Treasury Rate shall be determined by
us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication)
(“H.15”) under the caption “U.S. government securities — Treasury constant maturities — Nominal” (or
any successor caption or heading). In determining the Notes Treasury Rate, we shall select, as applicable: (1) the yield for the
Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Make Whole Date (the “Remaining Life”);
or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields — one yield
corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Make Whole Date on a straight-line basis
(using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury
constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15
closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be
deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from
the redemption date.
If on the third business day preceding the redemption
date H.15 or any successor designation or publication is no longer published, we shall calculate the Notes Treasury Rate based on the
rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding
such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Make Whole Date, as
applicable. If there is no United States Treasury security maturing on the Make Whole Date but there are two or more United States Treasury
securities with a maturity date equally distant from the Make Whole Date, one with a maturity date preceding the Make Whole Date and one
with a maturity date following the Make Whole Date, we shall select the United States Treasury security with a maturity date preceding
the Make Whole Date. If there are two or more United States Treasury securities maturing on the Make Whole Date or two or more United
States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States
Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices
for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Notes Treasury Rate in accordance with
the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the
average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United
States Treasury security, and rounded to three decimal places.
Our actions and determinations in determining the
redemption price shall be conclusive and binding for all purposes, absent manifest error. For the avoidance of doubt, the trustee shall
have no duty to calculate the redemption price nor shall it have any duty to review or verify our calculations of the redemption price.
Notice of any redemption will be mailed or electronically
delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 30 days but not more than 60 days before
the redemption date to each holder of notes to be redeemed.
In the case of a partial redemption, selection
of the notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate
and fair and subject to and otherwise in accordance with the procedures of the applicable depository. No notes of a principal amount of
$2,000 or less will be redeemed in part. If any
note is to be redeemed in part only, the notice of redemption that relates to the note will state the portion of the principal amount
of the note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the note will be issued in the name of
the holder of the note upon surrender for cancellation of the original note. For so long as the notes are held by DTC, the redemption
of the notes shall be done in accordance with the policies and procedures of the depositary.
Unless we default in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the notes or portions thereof called for redemption.
Certain Covenants
In addition to certain covenants contained in the
indenture, including, among others, the covenants described under “— Reports” and “— Consolidation, Merger
and Sale of Assets” below, the indenture will contain the following covenants.
Financial Covenants
Our company will not permit:
(a) the
Recourse Debt to Equity Ratio (the “Recourse Ratio”) as of the last day of each of its fiscal quarters to exceed 4.0 to 1.0;
and
(b) Consolidated
Net Asset Value, as of the last day of each of its fiscal quarters, to be less than the sum of (i) $1,310,000,000 plus (ii) the
greater of (x) zero dollars and (y) 75% of Net Equity Capital Activity.
Offer to Repurchase Upon a Change of Control Repurchase Event
If a Change of Control Repurchase Event (as defined
below) occurs, unless we have exercised our option to redeem the notes as described under “— Optional Redemption of the Notes,”
each holder of notes will have the right to require that we repurchase all or any part (in a minimum principal amount of $2,000 and integral
multiples of $1,000 in excess thereof) of that holder’s notes at a repurchase price in cash equal to 101% of the aggregate principal
amount of notes to be repurchased, plus accrued and unpaid interest to, but excluding, the date of repurchase, pursuant to the offer described
below. Within 30 days following any Change of Control Repurchase Event or, at our option, prior to any Change of Control Repurchase Event,
but after the public announcement of the Change of Control Repurchase Event, we will give notice to each holder with copies to the trustee
and the paying agent (if other than the trustee) describing the transaction or transactions that constitute or may constitute the Change
of Control Repurchase Event and offering to repurchase notes on the payment date specified in the notice, which will be no earlier than
30 days and no later than 60 days from the date such notice is given. The notice shall, if given prior to the date of consummation of
the Change of Control Repurchase Event, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring
on or prior to the payment date specified in the notice.
Notwithstanding the foregoing, interest due on
an interest payment date falling on or prior to a repurchase date will be payable to holders at the close of business on the record date
for such interest payment date.
We will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable
in connection with the repurchase of the notes as a result of a Change of Control Repurchase Event. To the extent that the provisions
of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the notes, we will comply with
the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Change of Control Repurchase
Event provisions of the indenture by virtue of such conflict.
On the Change of Control Repurchase Event payment
date, we will, to the extent lawful:
| • | Accept for payment all notes or portions of notes properly tendered pursuant to our offer; |
| • | Deposit with the paying agent an amount equal to the aggregate repurchase price in respect of all notes or portions of notes properly
tendered; and |
| • | Deliver or cause to be delivered to the trustee the notes properly accepted, together with an officers’ certificate stating
the aggregate principal amount of notes being repurchased by us and requesting that such notes be cancelled. |
The paying agent will promptly send to each holder
of notes properly tendered the purchase price for the notes, and the trustee will promptly authenticate and send (or cause to be transferred
by book entry) to each holder a new note equal in principal amount to any unrepurchased portion of any notes surrendered; provided that
each new note will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
We will not be required to make an offer to repurchase
the notes upon a Change of Control Repurchase Event if: (1) we or our successor delivered a notice to redeem the notes in the manner,
at the times and otherwise in compliance with the optional redemption provision described above prior to the occurrence of the Change
of Control Repurchase Event; or (2) a third party makes an offer in respect of the notes in the manner, at the times and otherwise
in compliance with the requirements for an offer made by us and such third-party purchases all notes properly tendered and not withdrawn
under its offer.
There can be no assurance that sufficient funds
will be available at the time of any Change of Control Repurchase Event to make required repurchases of notes tendered. Our failure to
repurchase the notes upon a Change of Control Repurchase Event would result in an Event of Default under the indenture.
“Change of Control Repurchase Event”
means: the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of
the Exchange Act, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series
of purchases, mergers or other acquisition transactions, of the Capital Stock entitling that person to exercise more than 50% of the total
voting power of all the Capital Stock entitled to vote generally in the election of our company’s directors (except that such person
will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent condition).
Consolidation, Merger and Sale of Assets
The following description replaces the description
set forth under “Description of Debt Securities — Mergers and Other Transactions” in the accompanying prospectus in
its entirety.
The indenture provides that we shall not amalgamate
or consolidate with, merge with or into, or convey, transfer or lease our properties and assets substantially as an entirety to another
person, unless:
(i) we are the surviving person or the resulting, surviving or
transferee person (if not us) is a corporation organized and existing under the laws of the United States of America, any State thereof
or the District of Columbia, and such person (if not us) shall expressly assume, by supplemental indenture, executed and delivered to
the trustee, in form satisfactory to the trustee, all of our obligations under the notes and the indenture; and (ii) immediately
after giving effect to such transaction, no Default or Event of Default has occurred and is continuing under the indenture with respect
to the notes. Upon any such amalgamation, consolidation, merger, conveyance, transfer or lease, the resulting, surviving or transferee
person (if not us) shall succeed to, and may exercise every right and power of ours under the indenture, and we shall be released and
discharged from our obligations under the notes and the indenture except in the case of any such lease.
Reports
The indenture requires us to file with the trustee,
within 15 days after we file the same with the SEC, copies of the quarterly and annual reports and of the information, documents and other
reports, if any, that we are required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and to otherwise
comply with Section 314(a) of the Trust Indenture Act. Any such report, information or document that we file with the SEC through
the EDGAR system (or any successor thereto) will be deemed to be delivered to the trustee for the purposes of this covenant at the time
of such filing through the EDGAR system (or such successor thereto), provided, however, that the trustee shall have no obligation whatsoever
to determine whether or not such filing has occurred.
Delivery of any such reports, information and documents
to the trustee shall be for informational purposes only, and the trustee’s receipt of such reports, information and documents shall
not constitute constructive notice of any information contained therein or determinable from information contained therein, including
our compliance with any of our covenants hereunder.
Events of Default
The following description replaces the description
set forth under “Description of Debt Securities — Events of Default and Remedies” in the accompanying prospectus in
its entirety.
The following will be “Events of Default”
under the indenture with respect to the notes:
| • | default in the payment of any principal of or premium, if any, on or redemption price with respect to the notes when due; |
| • | default in the payment of any interest on the notes when due and payable, which continues for 30 days; |
| • | our failure to comply with our obligations under the covenant described above under “— Consolidation, Merger and Sale
of Assets”; |
| • | default in tendering payment for the notes upon a Change of Control Repurchase Event, when such payment remains unpaid 60 days after
issuance of the requisite notice; |
| • | default in the performance of any other obligation of our company contained in the indenture or the notes (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this section specifically provided for), which continues for 60
days after written notice from the trustee or the holders of more than 25% of the aggregate outstanding principal amount of the notes; |
| • | an event of default, as defined in any bond, note, debenture or other evidence of debt of us or any Significant Subsidiary in excess
of $35,000,000 singly or in aggregate principal amount of such issues of such persons, whether such debt exists now or is subsequently
created, which becomes accelerated so as to be due and payable prior to the date on which the same would otherwise become due and payable
and such acceleration(s) shall not have been annulled or rescinded within 30 days of such acceleration or the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within
30 days of such payment default; provided, however, that if such event of default, acceleration(s) or payment default(s) are
contested by us, a final and non-appealable judgment or order confirming the existence of the default(s) and/or the lawfulness of
the acceleration(s), as the case may be, shall have been entered; |
| • | any final and non-appealable judgment or order for the payment of money in excess of $35,000,000 (excluding any amounts covered by
insurance) singly or in the aggregate for all such final judgments or orders against all such persons (1) shall be rendered against
us or any Significant Subsidiary and shall not be paid or discharged and (2) there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid
or discharged against all such persons to exceed $35,000,000 during which a stay of enforcement of such final judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; and |
| • | specified events in bankruptcy, insolvency or reorganization of us or any Significant Subsidiary (as defined below), or, each, a Bankruptcy
Event. |
“Significant Subsidiary” means each
of our significant subsidiaries, if any, as such term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act.
Remedies if an Event of Default Occurs
If an Event of Default with respect to the outstanding
notes occurs and is continuing (other than an Event of Default involving a Bankruptcy Event), the trustee or the holders of not less than
25% in aggregate principal amount of the notes may declare the principal thereof, premium, if any, and accrued and unpaid interest, if
any, thereon to be due and payable immediately. If an Event of Default involving a Bankruptcy Event shall occur, the principal of, and
accrued and unpaid interest, if any, on, all outstanding notes will automatically become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of outstanding notes.
At any time after the trustee or the holders of
the notes have accelerated the repayment of the principal, premium, if any, and accrued and unpaid interest, if any, on the outstanding
notes, but before the trustee has obtained a judgment or decree for payment of money due, the holders of a majority in aggregate principal
amount of outstanding notes may rescind and annul that acceleration and its consequences, provided that all payments and/or deliveries
due, other than those due as a result of acceleration, have been made and all Events of Default have been remedied or waived.
The holders of a majority in principal amount of
the outstanding notes may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the notes, provided that (1) such direction is not in conflict with any
rule of law or the indenture, (2) the trustee may take any other action deemed proper by the trustee that is not inconsistent
with such direction and (3) the trustee need not take any action that might involve it in personal liability or be unduly prejudicial
to the holders not joining therein. Before proceeding to exercise any right or power under the indenture at the direction of the holders,
the trustee is entitled to receive from those holders security or indemnity satisfactory to the trustee against the costs, expenses and
liabilities which it might incur in complying with any direction.
A holder of the notes will have the right to institute
a proceeding with respect to the indenture or for any remedy under the indenture, if:
| • | that holder or holders of not less than 25% in aggregate principal amount of the outstanding notes have given to the trustee written
notice of a continuing Event of Default with respect to the notes; |
| • | such holder or holders have offered the trustee indemnification or security reasonably satisfactory to the trustee against the costs,
expenses and liabilities incurred in connection with such request; |
| • | the trustee has not received from the holders of a majority in principal amount of the outstanding notes a written direction inconsistent
with the request within 60 days; and |
| • | the trustee fails to institute the proceeding within 60 days. |
However, the holder of a note has the right, which
is absolute and unconditional, to receive payment of the principal of and interest on such note on the respective due dates (or, in the
case of redemption or repurchase, on the redemption or repurchase date) and to institute suit for the enforcement of any such payment
and such rights shall not be impaired without the consent of such holder.
Modification and Amendment
The following description replaces the description
set forth under “Description of Debt Securities — Modification of the Indenture” in the accompanying prospectus in its
entirety.
Subject to certain exceptions, we and the trustee
may amend the indenture or the notes, and compliance with any provisions of the indenture may be waived, with the consent of the holders
of a majority in aggregate principal amount of the notes then outstanding (including, in each case, without limitation, consents obtained
in connection with a repurchase of, or tender or exchange offer for, notes). However, without the consent of each holder of a then outstanding
note, no amendment may, among other things:
| • | reduce the percentage in aggregate principal amount of notes outstanding necessary to waive any past Default or Event of Default; |
| • | reduce the rate of interest on any note or change the time for payment of interest on any note; |
| • | reduce the principal of any note or the amount payable upon redemption of any note or change the maturity date of any note; |
| • | change the place or currency of payment on any note; |
| • | reduce the Change of Control Repurchase Event repurchase price of any note or amend or modify in any manner adverse to the rights
of the holders of the notes our obligation to pay the Change of Control Repurchase Event repurchase price, whether through an amendment
or waiver of provisions in the covenants, definitions or otherwise; |
| • | impair the right of any holder to receive payment of principal of and interest, if any, on, its notes, or to institute suit for the
enforcement of any such payment or delivery, as the case may be, with respect to such holder’s notes; |
| • | modify the ranking of the notes in a manner that is adverse to the rights of the holders of the notes; or |
| • | make any change in the provisions described in this “Modification and Amendment” section that requires each holder’s
consent or in the waiver provisions of the indenture if such change is adverse to the rights of the holders of the notes. |
Without the consent of any holder of the notes,
we and the trustee may amend the indenture or the notes:
| • | to conform the terms of the indenture or the notes to the description thereof in this prospectus supplement, the accompanying prospectus
or any terms sheet relating to the notes; |
| • | to evidence the succession by a successor corporation and to provide for the assumption by a successor corporation of our obligations
under the indenture; |
| • | to add guarantees with respect to the notes and to remove guarantees in accordance with the terms of the indenture and the notes; |
| • | to add to our covenants such further covenants, restrictions or conditions for the benefit of the holders or to surrender any right
or power conferred upon us under the indenture or the notes; |
| • | to cure any ambiguity, omission, defect or inconsistency in the indenture or the notes, including to eliminate any conflict with the
provisions of the Trust Indenture Act, so long as such action will not materially adversely affect the interests of holders of the notes; |
| • | to make any change that does not adversely affect the rights of any holder of the notes; |
| • | to provide for a successor trustee; |
| • | to comply with the applicable procedures of the depositary; or |
| • | to comply with any requirements of the SEC in connection with the qualification of the indenture under the Trust Indenture Act. |
Holders do not need to approve the particular form
of any proposed amendment. It will be sufficient if such holders approve the substance of the proposed amendment. After an amendment under
the indenture becomes effective, we are required to mail to the holders a notice briefly describing such amendment. However, the failure
to give such notice to all the holders, or any defect in the notice, will not impair or affect the validity of the amendment.
Satisfaction and Discharge
We may satisfy and discharge our obligations under
the indenture (i) by delivering to the trustee for cancellation all outstanding notes or (ii) by irrevocably depositing with
the trustee, after the notes have become due and payable by giving of a notice of redemption, upon stated maturity or otherwise, or if
the notes are due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the
trustee for giving the notice of redemption, cash in U.S. dollars in such amount as will be sufficient, Government Obligations (as defined
below under “— Defeasance and Covenant Defeasance”) the scheduled payments of principal of and interest on which will
be sufficient (without any reinvestment of such interest), or a combination thereof in such amounts as will be sufficient, to pay principal
of, premium, if any, and interest on the notes to their stated maturity date or any earlier redemption or maturity date and, in either
case, paying all other sums payable under the indenture by us. Such satisfaction and discharge is subject to terms contained in the indenture
and certain provisions of the indenture will survive such satisfaction and discharge.
Defeasance and Covenant Defeasance
The indenture also provides that we may elect either:
| • | to defease and be discharged from any and all obligations with respect to the notes other than the obligations to register the transfer
or exchange of the notes, to replace temporary or mutilated, destroyed, lost or stolen notes, to maintain an office or agency in respect
of the notes and to hold moneys for payment in trust (“defeasance”); or |
| • | to be released from our obligations under the covenants described above under “— Certain Covenants,” “—
Reports” and “— Consolidation, Merger and Sale of Assets” and certain other covenants in the indenture, and any
omission to comply with these obligations shall not constitute an Event of Default with respect to such notes (“covenant defeasance”); |
in either case upon the irrevocable deposit by us with the trustee,
cash in U.S. dollars in such amount as will be sufficient, Government Obligations the scheduled payments of principal of and interest
on which will be sufficient (without any reinvestment of such interest), or a combination thereof in such amounts as will be sufficient,
as confirmed, certified or attested by an Independent Financial Advisor in writing to the trustee, to pay the principal of, premium, if
any, and interest on the notes to their stated maturity date or any earlier redemption date.
In connection with any defeasance or covenant defeasance,
we will be required to deliver to the trustee an opinion of counsel, as specified in the indenture, to the effect that the holders of
the notes will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or covenant defeasance
and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if
the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer
to and be based upon a ruling of the Internal Revenue Service (“IRS”) or a change in applicable United States federal income
tax law occurring after the date of the indenture.
“Government Obligations” means securities
that are:
(1) direct
obligations of the United States of America for the payment of which its full faith and credit is pledged; or
(2) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the United States of America;
which, in either case, are not callable or redeemable at the option
of the issuer thereof, and will also include a depositary receipt issued by a bank or trust company as custodian with respect to any Government
Obligation or a specific payment of interest on or principal of any Government Obligation held by the custodian for the account of the
holder of a depositary receipt; provided that, except as required by law, the custodian is not authorized to make any deduction from the
amount payable to the holder of the depositary receipt from any amount received by the custodian in respect of the Government Obligation
or the specific payment of interest on or principal of the Government Obligation evidenced by the depositary receipt.
“Independent Financial Advisor” means
any accounting firm, investment advisory firm, valuation firm, consulting firm, appraisal firm, investment bank, bank, trust company or
similar entity of recognized standing selected by us from time to time.
The Registrar and Paying Agent
We will initially designate the trustee as the
registrar and paying agent for the notes. Payments of interest and principal will be made, and the notes will be transferable, at the
office of the paying agent, or at such other place or places as may be designated pursuant to the indenture. For notes which we issue
in book-entry only form evidenced by a global note, payments will be made to a nominee of the depository.
No Personal Liability
The indenture will provide that no recourse for
the payment of the principal of, premium, if any, or interest on any of the notes or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of ours in the indenture, or in any of the notes or because
of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee
or controlling person of our company or the Manager or of any successor person thereto. Each holder, by accepting the notes, waives and
releases all such liability. The waiver and release are part of the consideration for issuance of the notes.
Governing Law
The indenture and the notes will be governed by
the laws of the State of New York.
Definitions
As used in the covenants in the indenture, the
following terms have the respective meanings specified below:
“Capital Lease” means, at any
time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of
a liability in accordance with GAAP.
“Capital Stock” means:
(a) with
respect to any Person other than a business trust, any and all shares, interests, participations or other equivalents (however designated
and whether or not voting) of or in its corporate stock, membership interests, partnership interests, or other equity interests, as applicable;
and
(b) with
respect to any Person that is a business trust, any and all beneficial ownership interests (however designated and whether or not voting)
in such Person;
in each case including each class or series of common stock (or other
equity interest) and Preferred Stock of such Person but in each case excluding any Indebtedness or debt securities convertible into or
exchangeable for, or any options, warrants, contracts or other securities (including derivative instruments) exercisable or exchangeable
for, convertible into or otherwise for or relating to the purchase or sale of, any of the items referred to in clauses (a) or (b) above.
“Consolidated Net Asset Value”
means, as of any date of determination with respect to the company and its Subsidiaries, Total Assets as of such date less the Total Liabilities
as of such date.
“Credit Enhancement Agreements”
means, collectively, any documents, instruments, guarantees or agreements entered into by the company, any of its Subsidiaries or any
Securitization Entity for the purpose of providing credit support (that is reasonable and customary for such Indebtedness under then-prevailing
market terms for such Indebtedness) with respect to any Non-Recourse Indebtedness or Securitization Indebtedness permitted (or not prohibited)
by the indenture.
“GAAP” means generally accepted
accounting principles as in effect from time to time in the United States of America.
“Governmental Authority” means
(a) the
government of
(i) the
United States of America or any state or other political subdivision thereof, or
(ii) any
other jurisdiction in which the company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over
any properties of the company or any Subsidiary, or
(b) any
entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Guaranty” means, with respect
to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to
purchase such indebtedness or obligation or any property constituting security therefor;
(b) to
advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
(c) to
lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation
of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise
to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other
liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed
to be direct obligations of such obligor.
“Indebtedness” with respect
to any Person means, at any time, without duplication,
(a) its
liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its
liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course
of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect
to any such property);
(c) (i) all
liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would
appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as
Capital Leases;
(d) all
liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or
otherwise become liable for such liabilities);
(e) all
its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks
and other financial institutions (whether or not representing obligations for borrowed money);
(f) the
aggregate Swap Termination Value of all Swap Contracts of such Person; and
(g) any
Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations
of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Lien” means, with respect to
any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements
and all similar arrangements).
“Material” means material in
relation to the business, operations, affairs, financial condition, assets or properties of the company and its Subsidiaries taken as
a whole.
“Net Equity Capital Activity”
means the aggregate net cash proceeds from the sale of the company’s perpetual equity interests (either common or preferred) at
any time after the date of the supplemental indenture, plus the aggregate principal amount of Indebtedness net of financing costs resulting
from the conversion of Indebtedness into perpetual equity securities at the time of conversion at any time after the date of the supplemental
indenture, less the aggregate amount paid by the company after the date of the supplemental indenture to repurchase its perpetual equity
interests.
“Non-Recourse Indebtedness”
means any Indebtedness of the company or any of its Subsidiaries:
(a) that
is advanced to finance the acquisition of Securitization Assets or other assets and secured only by the assets to which such Indebtedness
relates (or by a pledge of equity in the Securitization Entity owning such assets) without recourse to the company or any of its Subsidiaries
(excluding any such Subsidiary that is a Securitization Entity or that owns no Material assets (as determined by the company in good faith)
other than its interest in a Securitization Entity and, in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness)
(other than recourse pursuant to Standard Recourse Undertakings, unless, until and for so long as (but solely for purposes of the Recourse
Ratio covenant) a claim for payment or performance has been made under any such Standard Recourse Undertakings (which has not been satisfied
or waived) at which time the obligations with respect to any such Standard Recourse Undertakings shall (solely for purposes of such covenant)
not be considered Non-Recourse Indebtedness to the extent, and only to the extent, that such claim is a liability (for GAAP purposes)
of the company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity or that owns no Material assets
(as determined by the company in good faith) other than its interest in a Securitization Entity and, in each case, is a borrower, guarantor,
pledgor or other obligor of such Indebtedness));
(b) that
is advanced to any Subsidiaries or group of Subsidiaries of the company formed for the sole purpose of acquiring or holding Securitization
Assets or other assets (directly or indirectly) against which Indebtedness is incurred that is made without recourse to, and with no cross-collateralization
against, any assets of the company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity or that owns
no Material assets (as determined by the company in good faith) other than its interest in a Securitization Entity and, in each case,
is a borrower, guarantor, pledgor or other obligor of such Indebtedness) (other than recourse pursuant to Standard Recourse Undertakings,
unless, until and for so long as (but solely for purposes of the Recourse Ratio covenant) a claim for payment or performance has been
made under any such Standard Recourse Undertakings (which has not been satisfied or waived) at which time the obligations with respect
to any such Standard Recourse Undertakings shall (solely for purposes of such covenant) not be considered Non-Recourse Indebtedness to
the extent, and only to the extent, that such claim is a liability (for GAAP purposes) of the company or any of its Subsidiaries (excluding
any such Subsidiary that is a Securitization Entity or that owns no Material assets (as determined by the company in good faith) other
than its interest in a Securitization Entity and, in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness));
(c) in
respect of which recourse for payment is contractually limited to specific assets of the company or any of its Subsidiaries encumbered
by a Lien securing such Indebtedness (other than recourse pursuant to Standard Recourse Undertakings, unless, until and for so long as
(but solely for purposes of the Recourse Ratio covenant) a claim for payment or performance has been made under any such Standard Recourse
Undertakings (which has not been satisfied or waived) at which time the obligation with respect to any such Standard Recourse Undertakings
shall (solely for purposes of such covenant) not be considered Non-Recourse Indebtedness to the extent, and only to the extent, that such
claim is a liability (for GAAP purposes) of the company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization
Entity or that owns no Material assets (as determined by the company in good faith) other than its interest in a Securitization Entity
and, in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness)); and
(d) customary
completion or budget guarantees provided to lenders in connection with any of the foregoing clauses (a) through (c) in the ordinary
course of business unless, until and for so long as (but solely for purposes of the Recourse Ratio covenant) a claim for payment or performance
has been made at which time the obligations shall (solely for purposes of such covenant) not be considered Non-Recourse Indebtedness to
the extent, and only to the extent, that such claim is a liability (for GAAP purposes) of the company or any of its Subsidiaries.
For the purposes of clarity, it is understood and
agreed that, solely for purposes of the Recourse Ratio covenant, if the payment of any Indebtedness that would otherwise constitute Non-Recourse
Indebtedness is guaranteed in part but not in whole by the company or a Subsidiary of the company in such manner that the portion of such
Indebtedness so guaranteed no longer constitutes Non-Recourse Indebtedness, then (solely for the purposes of such covenant) the portion
of the Indebtedness so guaranteed shall be deemed to constitute Recourse Indebtedness and the remainder of such Indebtedness shall be
deemed to constitute Non-Recourse Indebtedness.
“Person” means an individual,
partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental
Authority.
“Preferred Stock” means any
class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person
as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Recourse Debt to Equity Ratio”
means, as of any date of determination, with respect to the company and its Subsidiaries, the ratio of (a) Recourse Indebtedness
outstanding on such date to (b) Tangible Capital Base as of such date, determined on a consolidated basis in accordance with GAAP.
“Recourse Indebtedness” means
all Indebtedness other than Non-Recourse Indebtedness and Securitization Indebtedness.
“Securitization” means a public
or private transfer, sale or financing of servicing advances, mortgage loans, installment contracts, other loans and related assets, accounts
receivable, real estate assets, mortgage receivables and any other assets capable of being securitized (collectively, “Securitization
Assets”) by which the company and/or any of its Subsidiaries directly or indirectly securitizes a pool of specified Securitization
Assets or incurs Non-Recourse Indebtedness secured by specified Securitization Assets, including any such transaction involving the sale
of specified servicing advances or mortgage loans to a Securitization Entity.
“Securitization Assets” has
the meaning set forth in the definition of “Securitization”.
“Securitization Entity” means
(a) any Person (whether or not a Subsidiary of the company) established for the purpose of issuing asset-backed or mortgage-backed
or mortgage pass-through securities of any kind (including collateralized mortgage obligations and net interest margin securities) or
other similar securities;
(b) any
special purpose Subsidiary established for the purpose of selling, depositing or contributing Securitization Assets into a Person described
in clause (a) or for the purpose of holding Capital Stock of, or securities issued by, any related Securitization Entity, regardless
of whether such Person is an issuer of securities; provided that such Person is not an obligor with respect to any Indebtedness of the
company or any Subsidiary; (c) any Person established for the purpose of holding Securitization Assets and issuing Non-Recourse Indebtedness
secured by such Securitization Assets; (d) any special purpose Subsidiary of the company formed exclusively for the purpose of satisfying
the requirement of Credit Enhancement Agreements (including, without limitation, any Subsidiary that is established for the purpose of
owning another Securitization Entity and pledging the equity of that other Securitization Entity as security for the Indebtedness of such
other Securitization Entity) and regardless of whether such Subsidiary is an issuer of securities, provided that such Subsidiary is not
an obligor with respect to any Indebtedness of the company or any Subsidiary other than under Credit Enhancement Agreements; and (e) any
other Subsidiary of the company which is established for the purpose of (i) acting as sponsor for and organizing and initiating Securitizations
or (ii) facilitating or entering into a Securitization, in each case that engages in activities reasonably related or incidental
thereto and that is not an obligor or guarantor with respect to any Indebtedness of the company or any Subsidiary. Whether or not a Person
is a Securitization Entity shall be determined by the company in good faith.
“Securitization Indebtedness”
means (a) Indebtedness of the company or any of its Subsidiaries incurred pursuant to on-balance sheet Securitizations and (b) any
Indebtedness consisting of advances made to the company or any of its Subsidiaries based upon securities issued by a Securitization Entity
pursuant to a Securitization and acquired or retained by the company or such Subsidiary which, in each case, is recourse solely to the
assets subject to the related Securitization and not to the company or such Subsidiary generally (other than Securitization Repurchase
Obligations).
“Securitization Repurchase Obligation”
means any obligation of a seller of Securitization Assets in a Securitization to repurchase Securitization Assets arising as a result
of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion
thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any
failure to take action by or any other event relating to the seller.
“Standard Recourse Undertakings”
means, with respect to any Securitization or Indebtedness, (a) such representations, warranties, covenants and indemnities which
are customarily (as determined by the company) made by sellers of financial assets or other Securitization Assets, including without limitation,
Securitization Repurchase Obligations, and (b) such customary (as determined by the company) carve-out matters for which the company
and/or its Subsidiaries acts as guarantor in connection with any such Securitization or Indebtedness, such as fraud, misappropriation
and misapplication of funds, misrepresentation, criminal acts, repurchase obligations for breach of representations or warranties, environmental
indemnities, insolvency events and non-approved transfers.
“Subordinated Debt” means all
Indebtedness of the company and its Subsidiaries on a consolidated basis that is contractually subordinated in right of payment to the
notes.
“Swap Contract” means (a) any
and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any
other similar transactions or any of the foregoing (including any options to enter into any of the foregoing), and (b) any and all
transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and Derivatives Association, Inc. or any International Foreign Exchange Master
Agreement.
“Swap Termination Value” means,
in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating
to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amounts(s) determined
as the mark-to-market values(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease” means, at
any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for
as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for
U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Tangible Capital Base” means,
with respect to the company and its Subsidiaries, on any date of determination, Total Assets (not including any intangible assets of the
company and its Subsidiaries) as of such date less Total Liabilities (inclusive of Subordinated Debt) as of such date, in each case determined
on a consolidated basis in accordance with GAAP.
“Total Assets” means, as of
any date of determination, the aggregate balance of investments reflected in the books and records of the company and its Subsidiaries
and all cash or cash equivalents held by the company and its Subsidiaries as of such date, in each case determined on a consolidated basis
in accordance with GAAP. For avoidance of doubt, investments for this purpose include without limitation loans, preferred equity and other
equity investments accounted for as debt in accordance with GAAP, owned real estate and investments in Subsidiaries, in each case, with
respect to the company and its Subsidiaries. Such assets of the company and its Subsidiaries will be included at their fair market value
as determined in accordance with GAAP.
“Total Liabilities” means, on
any date of determination, all amounts that would be included under total liabilities on a balance sheet of the company and its Subsidiaries
as of such date, determined on a consolidated basis in accordance with GAAP.
Book Entry, Delivery and Form
We have obtained the information in this section
concerning The Depository Trust Company, or DTC, and its book-entry system and procedures from sources that we believe to be reliable.
We take no responsibility for the accuracy or completeness of this information. In addition, the description of the clearing system in
this section reflects our understanding of the rules and procedures of DTC as they are currently in effect. DTC could change its
rules and procedures at any time.
The notes will initially be represented by one
or more fully registered global notes. Each such global note will be deposited with, or on behalf of, DTC or any successor thereto and
registered in the name of Cede & Co. (DTC’s nominee).
So long as DTC or its nominee is the registered
owner of the global notes representing the notes, DTC or such nominee will be considered the sole owner and holder of the notes for all
purposes of the notes and the indenture. Except as provided below, owners of beneficial interests in the notes will not be entitled to
have the notes registered in their names, will not receive or be entitled to receive physical delivery of the notes in certificated form
and will not be considered the owners or holders under the indenture, including for purposes of receiving any reports delivered by us
or the trustee pursuant to the indenture. Accordingly, each person owning a beneficial interest in a note must rely on the procedures
of DTC or its nominee and, if such person is not a participant, on the procedures of the participant through which such person owns its
interest, in order to exercise any rights of a holder.
Unless and until we issue the notes in fully certificated,
registered form under the limited circumstances described under the heading “Certificated Notes”:
| • | you will not be entitled to receive a certificate representing your interest in the notes; |
| • | all references in this prospectus supplement or accompanying prospectus to actions by holders will refer to actions taken by DTC upon
instructions from its direct participants; and |
| • | all references in this prospectus supplement or accompanying prospectus to payments and notices to holders will refer to payments
and notices to DTC or Cede & Co., as the holder of the notes, for distribution to you in accordance with DTC procedures. |
The Depository Trust Company
DTC will act as securities depositary for the notes.
The notes will be issued as fully registered notes registered in the name of Cede & Co. DTC is:
| • | a limited purpose trust company organized under the New York Banking Law; |
| • | a “banking organization” under the New York Banking Law; |
| • | a member of the Federal Reserve System; |
| • | a “clearing corporation” under the New York Uniform Commercial Code; and |
| • | a “clearing agency” registered under the provisions of Section 17A of the Exchange Act. |
DTC holds securities that its direct participants
deposit with DTC. DTC facilitates the settlement among direct participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic computerized book-entry changes in direct participants’ accounts, thereby eliminating
the need for physical movement of securities certificates.
Direct participants of DTC include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its direct participants.
Indirect participants of DTC, such as securities brokers and dealers, banks and trust companies, can also access the DTC system if they
maintain a custodial relationship with a direct participant.
Purchases of notes under DTC’s system must
be made by or through direct participants, which will receive a credit for the notes on DTC’s records. The ownership interest of
each beneficial owner is in turn to be recorded on the records of direct participants and indirect participants. Beneficial owners will
not receive written confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings, from the direct participants or indirect participants through
which such beneficial owners entered into the transaction. Transfers of ownership interests in the notes are to be accomplished by entries
made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in the notes, except as provided under “— Certificated Notes.”
To facilitate subsequent transfers, all notes deposited
with DTC are registered in the name of DTC’s nominee, Cede & Co. The deposit of notes with DTC and their registration in
the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the
notes. DTC’s records reflect only the identity of the direct participants to whose accounts such notes are credited, which may or
may not be the beneficial owners. The participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications
by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Book-Entry Only Form
Under the book-entry only form, the paying agent
will make all required payments to Cede & Co., as nominee of DTC. DTC will forward the payment to the direct participants, who
will then forward the payment to the indirect participants or to you as the beneficial owner. You may experience some delay in receiving
your payments under this system. Neither we, the trustee, nor any paying agent has any direct responsibility or liability for making any
payment to owners of beneficial interests in the notes.
DTC is required to make book-entry transfers on
behalf of its direct participants and is required to receive and transmit payments of principal, premium, if any, and interest on the
notes. Any direct participant or indirect participant with which you have an account is similarly required to make book-entry transfers
and to receive and transmit payments with respect to the notes on your behalf. We and the trustee under the indenture have no responsibility
for any aspect of the actions of DTC or any of its direct or indirect participants. In addition, we and the trustee under the indenture
have no responsibility or liability for any aspect of the records kept by DTC or any of its direct or indirect participants relating to
or payments made on account of beneficial ownership interests in the notes or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. We also do not supervise these systems in any way.
The trustee will not recognize you as a holder
under the indenture, and you can only exercise the rights of a holder indirectly through DTC and its direct participants. DTC has advised
us that it will only take action regarding a note if one or more of the direct participants to whom the note is credited directs DTC to
take such action and only in respect of the portion of the aggregate principal amount of the notes as to which that participant or participants
has or have given that direction. DTC can only act on behalf of its direct participants. Your ability to pledge notes to non-direct participants,
and to take other actions, may be limited because you will not possess a physical certificate that represents your notes.
Neither DTC nor Cede & Co. (nor such other
DTC nominee) will consent or vote with respect to the notes unless authorized by a direct participant in accordance with DTC’s procedures.
Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns
Cede & Co.’s consenting or voting rights to those direct participants to whose accounts the notes are credited on the record
date (identified in a listing attached to the omnibus proxy).
If less than all of the notes are being redeemed,
DTC’s current practice is to determine by lot the amount of the interest of each participant in such notes to be redeemed.
A beneficial owner of notes shall give notice to
elect to have its notes repurchased or tendered, through its participant, to the trustee and shall effect delivery of such notes by causing
the direct participant to transfer the participant’s interest in such notes, on DTC’s records, to the trustee. The requirement
for physical delivery of notes in connection with a repurchase or tender will be deemed satisfied when the ownership rights in such notes
are transferred by direct participants on DTC’s records and followed by a book-entry credit of such notes to the trustee’s
DTC account.
Certificated Notes
Unless and until they are exchanged, in whole or
in part, for notes in certificated registered form (“certificated notes”) in accordance with the terms of the notes, global
notes representing the notes may not be transferred except (1) as a whole by DTC to a nominee of DTC or (2) by a nominee of
DTC to DTC or another nominee of DTC or (3) by DTC or any such nominee to a successor of DTC or a nominee of such successor.
We will issue certificated notes in exchange for
global notes representing the notes, only if:
| • | DTC notifies us in writing that it is unwilling or unable to continue as depositary for the global notes or ceases to be a clearing
agency registered under the under the Exchange Act, and we are unable to locate a qualified successor within 90 days of receiving such
notice or becoming aware that DTC has ceased to be so registered, as the case may be; |
| • | an Event of Default has occurred and is continuing under the indenture and a request for such exchange has been made; or |
| • | we, at our option, elect to exchange all or part of a global note for certificated notes. |
If any of the three above events occurs, DTC is
required to notify all direct participants that certificated notes are available through DTC. DTC will then surrender the global notes
representing the notes along with instructions for re-registration. The trustee will re-issue the notes in fully certificated registered
form and will recognize the holders of the certificated notes as holders under the indenture.
Unless and until we issue certificated notes, (1) you
will not be entitled to receive a certificate representing your interest in the notes, (2) all references in this prospectus supplement
and accompanying prospectus to actions by holders will refer to actions taken by the depositary upon instructions from their direct participants,
and (3) all references in this prospectus supplement and accompanying prospectus to payments and notices to holders will refer to
payments and notices to the depositary, as the holder of the notes, for distribution to you in accordance with its policies and procedures.
Appendix A
| Purchaser | |
Aggregate Principal
Amount of Notes | | |
Aggregate
Purchase Price | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| [***] | |
$ | [***] | | |
$ | [***] | |
| Total | |
$ | 80,000,000 | | |
$ | 78,000,000 | |
Appendix B
Bank: Citibank N.A.
ABA: 021-000-089
Account: [***]
Account Name: Ready Capital Corporation
Exhibit 4.3
Ready Capital Corporation
as Company
U.S. Bank Trust Company, National Association
as Trustee
Eighth Supplemental Indenture
Dated as of July 25, 2022
to the Indenture
Dated as of August 9, 2017
7.375% Senior Notes due 2027
TABLE OF CONTENTS
Page(s)
| ARTICLE I DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION |
1 |
| |
|
| Section 1.01 |
Scope of Supplemental Indenture |
1 |
| Section 1.02 |
Definitions |
2 |
| Section 1.03 |
References to Principal |
8 |
| |
|
|
| ARTICLE II THE SECURITIES |
9 |
| |
|
| Section 2.01 |
Title and Terms; Payments |
9 |
| Section 2.02 |
Forms |
9 |
| Section 2.03 |
Transfer and Exchange |
11 |
| Section 2.04 |
Payments on the Notes |
13 |
| |
|
|
| ARTICLE III OPTIONAL REDEMPTION |
16 |
| |
|
| Section 3.01 |
Applicability of Article III of the Base Indenture |
16 |
| Section 3.02 |
[Reserved] |
16 |
| Section 3.03 |
Redemption |
16 |
| Section 3.04 |
Notice of Redemption; Selection of Notes |
17 |
| Section 3.05 |
Payment of Notes Called for Redemption |
18 |
| Section 3.06 |
Restrictions on Redemption |
18 |
| |
|
|
| ARTICLE IV PARTICULAR COVENANTS
OF THE COMPANY |
18 |
| |
|
| Section 4.01 |
Payment of Principal, Interest, Change of Control
Payment and Redemption Price |
18 |
| Section 4.02 |
Maintenance of Office or Agency |
18 |
| Section 4.03 |
Appointments to Fill Vacancies in Trustee’s Office |
19 |
| Section 4.04 |
Provisions as to Paying Agent |
19 |
| Section 4.05 |
Reports |
20 |
| Section 4.06 |
Statements as to Defaults |
21 |
| Section 4.07 |
Financial Covenants |
21 |
| Section 4.08 |
Offer to Repurchase Upon a Change of Control Repurchase
Event |
27 |
| |
|
|
| ARTICLE V REMEDIES |
29 |
| |
|
| Section 5.01 |
Amendments to the Base Indenture |
29 |
| Section 5.02 |
Events of Default |
29 |
| Section 5.03 |
Acceleration; Rescission and Annulment |
31 |
| Section 5.04 |
Waiver of Past Defaults |
31 |
| Section 5.05 |
Control by Majority |
31 |
| Section 5.06 |
Limitation on Suits |
31 |
| Section 5.07 |
Collection of Indebtedness; Suit for Enforcement by
Trustee |
32 |
| Section 5.08 |
Trustee May Enforce Claims Without Possession
of Notes |
32 |
| Section 5.09 |
Trustee May File Proofs of Claim |
32 |
| Section 5.10 |
Restoration of Rights and Remedies |
33 |
| Section 5.11 |
Rights and Remedies Cumulative |
33 |
| Section 5.12 |
Delay or Omission Not a Waiver |
33 |
| Section 5.13 |
Priorities |
33 |
| Section 5.14 |
Undertaking for Costs |
34 |
| Section 5.15 |
Waiver of Stay, Extension and Usury Laws |
34 |
| Section 5.16 |
Notices from the Trustee |
34 |
| |
|
|
| ARTICLE VI SATISFACTION AND DISCHARGE;
LEGAL AND COVENANT DEFEASANCE |
34 |
| |
|
| Section 6.01 |
Inapplicability of Provisions of Base Indenture; Satisfaction
and Discharge of the Indenture |
34 |
| Section 6.02 |
Discharge of Liability on Notes |
35 |
| Section 6.03 |
Legal Defeasance and Covenant Defeasance |
36 |
| Section 6.04 |
Conditions to Legal Defeasance and Covenant Defeasance |
37 |
| Section 6.05 |
Application of Trust Money |
38 |
| Section 6.06 |
Repayment to the Company |
39 |
| Section 6.07 |
Reinstatement |
39 |
| Section 6.08 |
Indemnity for Government Obligations |
39 |
| |
|
|
| ARTICLE VII SUPPLEMENTAL INDENTURES |
39 |
| |
|
| Section 7.01 |
Supplemental Indentures Without Consent of Holders |
39 |
| Section 7.02 |
Supplemental Indentures with Consent of Holders |
40 |
| Section 7.03 |
Notice of Amendment or Supplement |
41 |
| |
|
|
| ARTICLE VIII SUCCESSOR COMPANY |
41 |
| |
|
| Section 8.01 |
Consolidation, Merger and Sale of Assets |
41 |
| Section 8.02 |
Company May Consolidate, Etc. |
41 |
| Section 8.03 |
Successor Corporation to Be Substituted |
42 |
| Section 8.04 |
Opinion of Counsel to Be Given to Trustee |
42 |
| |
|
|
| ARTICLE IX MISCELLAEOUS |
43 |
| |
|
| Section 9.01 |
Effect on Successors and Assigns |
43 |
| Section 9.02 |
Governing Law |
43 |
| Section 9.03 |
No Security Interest Created |
43 |
| Section 9.04 |
Trust Indenture Act |
43 |
| Section 9.05 |
Benefits of Supplemental Indenture |
43 |
| Section 9.06 |
Calculations |
43 |
| Section 9.07 |
Execution in Counterparts |
43 |
| Section 9.08 |
Notices |
44 |
| Section 9.09 |
Ratification of Base Indenture |
44 |
| Section 9.10 |
No Recourse Against Others |
44 |
| Section 9.11 |
The Trustee |
45 |
| Section 9.12 |
Submission to Jurisdiction |
45 |
| Section 9.13 |
Applicable Tax Law |
45 |
Exhibit A – Form of
Security
EIGHTH SUPPLEMENTAL INDENTURE
(this “Supplemental Indenture”), dated as of July 25, 2022, between Ready Capital Corporation, a Maryland corporation
(the “Company”), and U.S. Bank Trust Company, National Association, as successor to U.S. Bank National Association
(the “Trustee”) under the Indenture dated as of August 9, 2017, between the Company and the Trustee (as supplemented
by the Third Supplemental Indenture thereto, dated as of February 26, 2019, the “Base Indenture”).
RECITALS
OF THE COMPANY
WHEREAS, the Company executed
and delivered the Base Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s
Securities (as defined below), in an unlimited aggregate principal amount, in one or more series to be established by the Company under,
and authenticated and delivered as provided in, the Base Indenture;
WHEREAS, Section 9.01(c) of
the Base Indenture provides for the Company and the Trustee to enter into supplemental indentures to the Base Indenture to establish
the form and terms of Securities of any series as contemplated by Article II of the Base Indenture;
WHEREAS, the Board of Directors
(as defined below) has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the
terms of the Base Indenture, the Company has authorized the creation and issuance under this Supplemental Indenture of its 7.375% Senior
Notes due 2027 (the “Notes”), the form and substance of such Securities and the terms, provisions and conditions thereof
to be set forth as provided in the Base Indenture and this Supplemental Indenture; and
WHEREAS, the Company has
requested that the Trustee execute and deliver this Supplemental Indenture, and that all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company have been performed, and the execution and delivery of this Supplemental
Indenture have been duly authorized in all respects.
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually
agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Scope
of Supplemental Indenture. The changes, modifications and supplements to the Base Indenture
effected by this Supplemental Indenture shall be applicable only with respect to, and shall govern only the terms of (and only the rights
of the Holders and the obligations of the Company with respect to), the Notes, which may be issued from time to time, and shall not apply
to any other Securities that may be issued under the Base Indenture (or govern the rights of the Holders or the obligations of the Company
with respect to any such other Securities) unless a supplemental indenture with respect to such other Securities specifically incorporates
such changes, modifications and supplements. The provisions of this Supplemental Indenture shall, solely with respect to the Notes, supersede
any corresponding provisions in the Base Indenture. Subject to the preceding sentence, and except as otherwise provided herein, the provisions
of the Base Indenture shall apply to the Notes and govern the rights of the Holders of the Notes and the obligations of the Company and
the Trustee with respect thereto.
Section 1.02 Definitions.
For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article I shall have the meanings assigned to them in this Article I and include the plural as well as
the singular; and
(2) all
words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base
Indenture.
“Agent Members”
has the meaning specified in Section 2.02(c) hereof.
“Applicable Procedures”
means, with respect to any matter at any time, the policies and procedures of the Depository, if any, that are applicable to such matter
at such time.
“Applicable Tax
Law” has the meaning specified in Section 9.13 hereof.
“Base Indenture”
has the meaning specified in the first paragraph of this Supplemental Indenture.
“Board of Directors”
means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Business Day”
means, notwithstanding anything to the contrary in Section 1.01 of the Base Indenture, a day other than a Saturday, Sunday or any
other day on which banking institutions in New York City or the location of the corporate trust office of the Trustee are authorized
or required by law, regulation or executive order to close.
“Capital Stock”
means, with respect to any entity, any and all shares, interests, participations or other equivalents (however designated, whether voting
or non-voting), including partnership or limited liability company interests, whether general or limited, in the equity of such entity
(including without limitation all warrants, options, derivative instruments, or rights of subscription or conversion relating to or affecting
Capital Stock), whether outstanding on the Issue Date or issued thereafter.
“Change of Control
Offer” has the meaning specified in Section 4.08(a) hereof.
“Change of Control
Payment” has the meaning specified in Section 4.08(b) hereof.
“Change of Control
Payment Date” has the meaning specified in Section 4.08(b) hereof.
“Change of Control
Repurchase Event” means: the acquisition by any person, including any syndicate or group deemed to be a “person”
under Section 13(d)(3) of the Exchange Act, of beneficial ownership, directly or indirectly, through a purchase, merger or
other acquisition transaction or series of purchases, mergers or other acquisition transactions, of the Capital Stock entitling that
person to exercise more than 50% of the total voting power of all the Capital Stock entitled to vote generally in the election of the
Company’s directors (except that such person will be deemed to have beneficial ownership of all securities that such person has
the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition).
“Close of Business”
means 5:00 p.m., New York City time.
“Company”
has the meaning specified in the first paragraph of this Supplemental Indenture, and subject to the provisions of Section 8.02,
shall include its successors and assigns.
“Corporate Trust
Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 60 Livingston Avenue St. Paul, MN 55107, Attention: Global Corporate Trust
Services.
“Covenant Defeasance”
has the meaning specified in Section 6.03(c) hereof.
“Custodian”
means the Trustee, as custodian with respect to the Notes (so long as the Notes constitute Global Securities), or any successor entity.
“Default”
means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Event of Default”
has the meaning, notwithstanding anything to the contrary in Section 1.01 of the Base Indenture, specified in Section 5.02
hereof.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Form of Assignment
and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 1 to the Form of Security
attached hereto as Exhibit A.
“GAAP”
means generally accepted accounting principles in the United States applied consistently from time to time.
“Global Security”
means a Note which is executed by the Company and authenticated and delivered to the Depository or its nominee, all in accordance with
the Indenture and pursuant to a Company Order, which shall be registered in the name of the Depository or its nominee and which shall
represent the amount of book-entry Notes as specified therein.
“Government Obligations”
means securities that are: (1) direct obligations of the United States of America for the payment of which its full faith and credit
is pledged; or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America;
which, in either case, are not callable or redeemable at the option of the issuer thereof, and will also include a depositary receipt
issued by a bank or trust company as custodian with respect to any Government Obligation or a specific payment of interest on or principal
of any Government Obligation held by the custodian for the account of the holder of a depositary receipt; provided that, except
as required by law, the custodian is not authorized to make any deduction from the amount payable to the holder of the depositary receipt
from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal
of the Government Obligation evidenced by the depositary receipt.
“Guarantee”
means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any
other Person in any manner, whether directly or indirectly, including obligations incurred through an agreement, contingent or otherwise,
by such Person:
(a) to purchase such
indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply
funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties
or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability
of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure
the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the
indebtedness or other liabilities of the obligor under any Guarantee, the indebtedness or other obligations that are the subject of such
Guarantee shall be assumed to be direct obligations of such obligor.
“Holder”
means, notwithstanding anything to the contrary in Section 1.01 of the Base Indenture, the Person in whose name a Note is registered
in the Registrar’s books.
“incur”
means to, directly or indirectly, create, incur, assume, guarantee or otherwise become liable for payment of.
“Indenture”
means, notwithstanding anything to the contrary in Section 1.01 of the Base Indenture, the Base Indenture, as amended and supplemented
by this Supplemental Indenture, and as each may be amended or supplemented from time to time insofar as any such future amendment or
supplement applies to the Notes.
“Independent Financial
Advisor” means any accounting firm, investment advisory firm, valuation firm, consulting firm, appraisal firm, investment bank,
bank, trust company or similar entity of recognized standing selected by the Company from time to time.
“Interest Payment
Date” means, with respect to the payment of interest on the Notes and notwithstanding anything to the contrary in Section 1.01
of the Base Indenture, each January 31 and July 31, beginning, in the case of the Notes issued on the Issue Date, on January 31,
2023.
“Interest Rate Adjustment
Event” has the meaning specified in Section 2.04(d) hereof.
“Issue Date”
means July 25, 2022.
“Legal Defeasance”
has the meaning specified in Section 6.03(b) hereof.
“Lien”
means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement
or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements,
voting trust agreements and all similar arrangements).
“Make Whole Date”
has the meaning specified in Section 3.03(a) hereof.
“Manager”
means Waterfall Asset Management, LLC.
“Maturity Date”
means, with respect to any Note and the payment of the principal amount thereof, July 31, 2027.
“Non-IG Rating”
has the meaning specified in Section 2.04(d) hereof.
“Note”
or “Notes” has the meaning specified in the fourth paragraph of the Recitals of this Supplemental Indenture.
“Note Guarantor”
means any Subsidiary of the Company that Guarantees the Notes, until such Guarantee is released in accordance with the terms of the Indenture.
“Notes Treasury
Rate” means, with respect to any redemption date of the Notes, the yield determined by the Company in accordance with the following
two paragraphs.
The Notes Treasury Rate shall
be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily
by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield
or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board
of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant maturities
— Nominal” (or any successor caption or heading). In determining the Notes Treasury Rate, the Company shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Make Whole
Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining
Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield
corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the
Make Whole Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal
places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield
for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury
constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable,
of such Treasury constant maturity from the redemption date.
If on the third business
day preceding the redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate
the Notes Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City
time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity
that is closest to, the Make Whole Date, as applicable. If there is no United States Treasury security maturing on the Make Whole Date
but there are two or more United States Treasury securities with a maturity date equally distant from the Make Whole Date, one with a
maturity date preceding the Make Whole Date and one with a maturity date following the Make Whole Date, the Company shall select the
United States Treasury security with a maturity date preceding the Make Whole Date. If there are two or more United States Treasury securities
maturing on the Make Whole Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the
Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading
closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York
City time. In determining the Notes Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of
the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage
of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“NRSRO”
has the meaning specified in Section 2.04(d) hereof.
“Open of Business”
means 10:00 a.m., New York City time.
“Operating Partnership”
means Sutherland Partners, L.P., a Delaware limited partnership.
“Optional Redemption”
has the meaning specified in Section 3.03(a) hereof.
“Outstanding”
means, with respect to the Notes, notwithstanding anything to the contrary in Section 1.01 of the Base Indenture, any Notes authenticated
by the Trustee except:
(a) Notes
cancelled by it,
(b) Notes
delivered to it for cancellation; and
(c) (i) Notes
replaced pursuant to Section 2.09 of the Base Indenture, on and after the time any such Note is replaced (unless the Trustee and
the Company receive proof satisfactory to them that such Note is held by a bona fide purchaser), and (ii) any and all Notes, as
of the Maturity Date, if the Paying Agent holds, in accordance with the Indenture, money sufficient to pay all of the Notes then payable,
provided, however, that
in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that the Trustee shall not be deemed to
have knowledge of any such ownership and shall be protected in conclusively relying upon any such request, demand, authorization, direction,
notice, consent or waiver, unless a Responsible Officer of the Trustee has actual knowledge of such ownership, whether by receipt of
written notice or otherwise. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company
or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
“Paying Agent”
has the meaning set forth in Section 4.02 of this Supplemental Indenture and shall be the Person authorized by the Company to pay
the principal of, interest on, Change of Control Payment of or Redemption Price of, any Notes on behalf of the Company.
“Person”
means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity
or Governmental Authority.
“Physical Securities”
means any non-Global Security issued pursuant to Section 2.03 hereof that is in certificated, fully registered form, without interest
coupons.
“Prospectus”
means the Prospectus of the Company, dated March 21, 2022, relating to the Company’s common stock, preferred stock, depositary
shares, debt securities (including the Notes), warrants and rights.
“Prospectus Supplement”
means the Prospectus Supplement of the Company, dated July 19, 2022, to the Prospectus, relating to the offering and sale of the
Notes.
“Redemption Date”
has the meaning specified in Section 3.04(a) hereof.
“Redemption Notice”
has the meaning specified in Section 3.04(a) hereof.
“Redemption Price”
has the meaning specified in Section 3.03(a) hereof.
“Regular Record
Date” means, with respect to any Interest Payment Date, the January 15 and July 15 (whether or not a Business Day),
as the case may be, immediately preceding such Interest Payment Date.
“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee 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 relating to the Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and who shall, in each case, have direct responsibility for the administration of the Indenture.
“Security”
or “Securities” means the Company’s debentures, notes or other evidences of unsecured indebtedness to be issued
in one or more series pursuant to the Base Indenture, and includes the Notes.
“Significant Subsidiary”
means, with respect to any Person, a Subsidiary of such Person that would constitute a “significant subsidiary” as such term
is defined in Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act.
“Subsidiary”
means, with respect to any Person and at any time, any other Person if more than 50% of the total combined voting power of all of such
other Person’s outstanding Voting Stock is at the time owned, directly or indirectly, by such referent Person and/or one or more
other Subsidiaries of such referent Person. For purposes of clarity, it is understood and agreed that, anything in the Indenture to the
contrary notwithstanding, variable interest entities (within the meaning of GAAP) shall not be deemed to be Subsidiaries of any Person.
“Successor Company”
has the meaning specified in Section 8.02(a) hereof.
“Supplemental Indenture”
has the meaning specified in the first paragraph hereof.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean or include each
Person who is then a Trustee hereunder.
“U.S.”
or “United States” means the United States of America.
“U.S. Dollars”
means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
Section 1.03 References
to Principal. Unless the context otherwise requires, any reference to the principal of, or the
principal amount of, any Security or Note in the Base Indenture or this Supplemental Indenture shall be deemed to include the Redemption
Price and/or the Change of Control Payment, if, in such context, the Redemption Price and/or Change of Control Payment (as applicable)
is, was or would be payable in accordance with Article III or Section 4.08, as applicable. Unless the context otherwise requires,
any express mention of the Redemption Price or the Change of Control Payment in any provision hereof shall not be construed as excluding
the Redemption Price or the Change of Control Payment, as applicable, in those provisions hereof where such express mention is not made.
ARTICLE II
THE SECURITIES
Section 2.01 Title
and Terms; Payments.
(a) Establishment;
Designation. Pursuant to Section 2.02 of the Base Indenture, there is hereby established and authorized a new series of Securities
under the Indenture, which series of Securities shall be designated the “7.375% Senior Notes due 2027.”
(b) Initial
Issuance. Subject to Section 2.01(c) hereof, the aggregate principal amount of Notes that may be authenticated and delivered
under the Indenture is limited to $80,000,000.00 (except for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.08, 2.09 and 2.11 of the Base Indenture and Sections 3.04(f) and
4.08(d) hereof).
(c) Further
Issues. The Company may, without notice to, or the consent of, the Holders, issue additional Notes in an unlimited aggregate principal
amount under the Indenture ranking equally and ratably with, and with the same terms as, the Notes issued on the Issue Date except with
respect to issue date, issue price and, if applicable, the date from which interest will accrue; provided, that if any
such additional Notes are not fungible with the Notes issued on the Issue Date for United States federal income tax purposes, such additional
Notes will have separate CUSIP and ISIN numbers from the Notes issued on the Issue Date. Any such additional Notes will, for all purposes
of the Indenture, including waivers, amendments and offers to purchase, be treated as part of the same series of Securities as the Notes
issued on the Issue Date.
(d) Purchases.
The Company and its Subsidiaries may from time to time purchase Notes in open market purchases in negotiated transactions or otherwise
without giving prior notice to, or obtaining any consent of, the Holders. Any Notes purchased by the Company or any of its Subsidiaries
pursuant to the foregoing sentence or otherwise will be retired and will no longer be Outstanding under the Indenture.
(e) Denominations.
Pursuant to Section 2.02 of the Base Indenture, and notwithstanding Section 2.03 of the Base Indenture, the Notes will be issued
only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.02 Forms.
(a) In
General. Pursuant to Section 2.01 of the Base Indenture, the Notes will be substantially in the forms set forth in Exhibit A
hereto, and may include such insertions, omissions, substitutions and other variations as are required or permitted by the Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes.
Notwithstanding Section 2.01(b) of
the Base Indenture, each Note will bear a Trustee’s certificate of authentication substantially in the form included in Exhibit A
hereto. Each Note will also bear the Form of Assignment and Transfer.
Any Note that is a Global
Security will bear a legend substantially in the form of the legend set forth in Exhibit A hereto and shall also bear the “Schedule
of Increases and Decreases of Global Security” set forth in Annex A to Exhibit A hereto.
The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of the Indenture and, to the extent applicable, the Company
and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to
be bound thereby. However, to the extent that any provision of any Note conflicts with the express provisions of the Indenture, the provisions
of such Note will govern and control.
(b) Depository.
The Company hereby initially appoints The Depository Trust Company as the Depository for the Notes. The Notes shall initially be issued
in the form of one or more Global Securities (i) registered in the name of Cede & Co., as nominee of the Depository, and
(ii) delivered to the Custodian. So long as the Notes are eligible for book-entry settlement with the Depository, unless otherwise
required by law, and except to the extent provided in Section 2.03(c)(1) through (3) hereof, all Notes will be represented
by one or more Global Securities.
(c) Global
Securities. Each Global Security will represent the aggregate principal amount of the then Outstanding Notes endorsed thereon and
provide that it represents such aggregate principal amount of the then Outstanding Notes, which aggregate principal amount may, from
time to time, be reduced or increased to reflect transfers, exchanges, redemptions, repurchases or purchases by the Company and cancellations
of the Notes represented thereby.
Only the Trustee, or the
Custodian holding such Global Security for the Depository, at the direction of the Trustee, may endorse a Global Security to reflect
the amount of any increase or decrease in the aggregate principal amount of the then Outstanding Notes represented thereby, and whenever
the Holder of a Global Security delivers instructions to the Trustee to increase or decrease the aggregate principal amount of the then
Outstanding Notes represented by a Global Security in accordance with the Indenture and the Applicable Procedures, the Trustee, or the
Custodian holding such Global Security for the Depository, at the direction of the Trustee, will endorse such Global Security to reflect
such increase or decrease in the aggregate principal amount of the then Outstanding Notes represented thereby. None of the Trustee, the
Company or any agent of the Trustee or the Company will have any responsibility or bear any liability for any aspect of the records relating
to or payments made on account of the ownership of any beneficial interest in a Global Security or with respect to maintaining, supervising
or reviewing any records relating to such beneficial interest.
Members of, or participants
in, the Depository (“Agent Members”) shall have no rights under the Indenture with respect to any Global Security
held on their behalf by the Depository, or the Custodian, or under any Global Security, and Cede & Co., or such other person
designated by the Depository as its nominee, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of any Holder or beneficial owner of any Note.
Section 2.03 Transfer
and Exchange.
(a) In
General. Notwithstanding anything to the contrary in Article II of the Base Indenture, the Company is not required to transfer
or exchange any Notes or portions thereof that have been surrendered for purchase in accordance with Section 4.08 hereof (unless
the related Change of Control Offer is withdrawn) or that have been called for redemption in accordance with the provisions of Article III
hereof, and a written form of transfer substantially in the form of the Form of Assignment and Transfer will be deemed to be a written
instrument of transfer satisfactory to the Company and the Registrar.
At such time as all interests
in a Global Security have been purchased, cancelled or exchanged for Notes in certificated form, such Global Security shall, upon receipt
thereof, be canceled by the Trustee in accordance with standing procedures and instructions existing between the Depository and the Custodian
for the Global Security. At any time prior to such cancellation, if any interest in a Global Security is purchased, cancelled or exchanged
for Notes in certificated form, the principal amount of such Global Security shall, in accordance with the standing procedures and instructions
existing between the Depository and the Custodian for the Global Security, be appropriately reduced, and an endorsement shall be made
on such Global Security, by the Trustee or the Custodian for the Global Security, at the direction of the Trustee, to reflect such reduction.
(b) Global
Securities. Notwithstanding anything to the contrary in Section 2.08 of the Base Indenture, every transfer and exchange of a
beneficial interest in a Global Security will be effected through the Depository in accordance with the Applicable Procedures and the
provisions of the Indenture, and each Global Security may be transferred only as a whole and only (A) by the Depository to a nominee
of the Depository, (B) by a nominee of the Depository to the Depository or to another nominee of the Depository, or (C) by
the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.
(c) Holders
Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Note is registered as the absolute owner of such Note for all purposes, including
for the purpose of receiving payment of principal of and any interest (subject to Section 2.13 of the Base Indenture) on such Note
at the Maturity Date, in connection with a Change of Control Offer, or for the purpose of distributing notices to Holders or soliciting
the consent of Holders, whether or not such Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Notwithstanding anything
to the contrary in Section 2.08 of the Base Indenture:
(1) Each
Global Security will be exchanged for Physical Securities if the Depository delivers notice to the Company in writing that the Depository
is unwilling or unable to continue to act as Depository or the Depository ceases to be a clearing agency registered under the Exchange
Act, and, in each case, the Company fails to appoint a successor Depository within 90 days after receiving notice from the Depository
or becoming aware that the Depository has ceased to be so registered, as the case may be.
(2) If
an Event of Default has occurred and is continuing, any owner of a beneficial interest in a Global Security may exchange such beneficial
interest for Physical Securities by delivering a written request to the Registrar.
(3) If
the Company notifies the Trustee that it has elected to exchange all or part of a Global Security for Physical Securities, the Company
may exchange all beneficial interests in such Global Security (or portion thereof) for Physical Securities by delivering a written request
to the Registrar.
In the case of an exchange
for Physical Securities under clause (1) above:
(A) each
Global Security will be deemed surrendered to the Trustee for cancellation;
(B) the
Trustee will cause each Global Security to be cancelled in accordance with the Applicable Procedures; and
(C) the
Company, in accordance with Section 2.04 of the Base Indenture, will promptly execute, and, upon receipt of a request of the Company,
the Trustee, in accordance with Section 2.04 of the Base Indenture, will promptly authenticate and deliver, for each beneficial
interest in each Global Security so exchanged, an aggregate principal amount of Physical Securities equal to the aggregate principal
amount of such beneficial interest, registered in such names and in such authorized denominations as the Depository specifies, and bearing
any legends that such Physical Securities are required to bear under the Indenture.
In the case of an exchange
for Physical Securities under clause (2) above:
(A) the
Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the owner of the beneficial
interest to be exchanged, the aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Security, in
each case if and as such information is provided to the Registrar by the Depository;
(B) the
Company, in accordance with Section 2.04 of the Base Indenture, will promptly execute, and, upon receipt of a request of the Company,
the Trustee, in accordance with Section 2.04 of the Base Indenture, will promptly authenticate and deliver to such owner, for the
beneficial interest so exchanged by such owner, Physical Securities registered in such owner’s name having an aggregate principal
amount equal to the aggregate principal amount of such beneficial interest and bearing any legends that such Physical Securities are
required to bear under the Indenture; and
(C) the
Registrar, in accordance with the Applicable Procedures, will cause the principal amount of such Global Security to be decreased by the
aggregate principal amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Security are so exchanged,
such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Security to be
cancelled in accordance with the Applicable Procedures.
In the case of an exchange
for Physical Securities under clause (3) above:
(A) the
Company will deliver notice of such request to the Registrar and the Trustee, which notice will identify each owner of a beneficial interest
to be exchanged, the aggregate principal amount of each such beneficial interest and the CUSIP of the relevant Global Security;
(B) the
Company, in accordance with Section 2.04 of the Base Indenture, will promptly execute, and, upon receipt of a request of the Company,
the Trustee, in accordance with Section 2.04 of the Base Indenture, will promptly authenticate and deliver to each such beneficial
owner, Physical Securities registered in such beneficial owner’s name having an aggregate principal amount equal to the aggregate
principal amount of its exchanged beneficial interest and bearing any legends that such Physical Securities are required to bear under
the Indenture; and
(C) the
Registrar, in accordance with the Applicable Procedures, will cause the principal amount of each relevant Global Security to be decreased
by the aggregate principal amount of the beneficial interests so exchanged. If all of the beneficial interests in a Global Security are
so exchanged, such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global
Security to be cancelled in accordance with the Applicable Procedures.
In each of the cases described
in clauses (1), (2) and (3) above, the Company may rely on the Depository to provide all names of beneficial owners and their
respective principal amounts beneficially owned and may issue Physical Securities registered in the names and amounts so provided by
the Depository.
(d) Physical
Securities. Except to the extent otherwise provided in Section 2.03(a) hereof, Physical Securities may be transferred or
exchanged in accordance with Section 2.08 of the Base Indenture.
Section 2.04 Payments
on the Notes.
(a) In
General. Subject to Section 2.04(d), each Note will accrue interest at a rate equal to 7.375% per annum from the most recent
date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including
July 25, 2022. Interest on a Note will cease to accrue upon the earliest of the Maturity Date, subject to the provisions of Article III
hereof, any Redemption Date for such Note and, subject to the provisions of Section 4.08 hereof, any Change of Control Payment Date
for such Note. Interest on any Note will be payable semi-annually in arrears on each Interest Payment Date (beginning, in the case of
the Notes issued on the Issue Date, on January 31, 2023) to the Holder of such Note as of the Close of Business on the Regular Record
Date immediately preceding the applicable Interest Payment Date. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
The Notes will mature on
the Maturity Date, and on the Maturity Date, each Holder of a then Outstanding Note will be entitled on such date to receive $1,000 in
cash for each $1,000 in principal amount of then Outstanding Notes held, together with accrued and unpaid interest to, but not including,
the Maturity Date on such then Outstanding Notes.
Notwithstanding anything
to the contrary, if the Maturity Date or any Interest Payment Date, Redemption Date or Change of Control Payment Date falls, or if any
payment, delivery, notice or other action by the Company under the Indenture or the Notes is otherwise due, on a day that is not a Business
Day, then any action to be taken on such date need not be taken on such date, but may be taken on the immediately following Business
Day with the same force and effect as if taken on the original due date. Such payment will not result in a Default and no additional
interest will accrue and no Default shall occur on account of such delay.
(b) Method
of Payment. The Company will pay the principal of, the Change of Control Payment for, and the Redemption Price for, with respect
to, any Physical Security to the Holder of such Physical Security in cash at the designated office of the Paying Agent in Saint Paul,
Minnesota prior to the Open of Business on the relevant payment date. The Company will pay any interest on any Physical Security to the
Holder of such Physical Security (i) if such Holder holds $2,000,000 or less aggregate principal amount of Notes, by check mailed
to such Holder’s registered address, and (ii) if such Holder holds more than $2,000,000 aggregate principal amount of Notes,
(A) by check mailed to such Holder’s registered address or, (B) if such Holder delivers to the Registrar a written request
that the Company make such payments by wire transfer to an account of such Holder within the United States, for each Interest Payment
Date occurring during the period beginning on the date on which such Holder delivered such request and ending on the date, if any, on
which such Holder delivers to the Registrar a written instruction to the contrary, by wire transfer of immediately available funds to
the account specified by such Holder, provided such Holder is the Holder of such Physical Security as of the Close of Business on the
related Regular Record Date.
The Company will pay the
principal of, interest on, the Change of Control Payment for and the Redemption Price for, any Global Security to the Depository by wire
transfer of immediately available funds on the relevant payment date in accordance with Applicable Procedures.
(c) Defaulted
Payments. The Company shall pay any interest on the Notes that is payable, but is not punctually paid or duly provided for, on the
applicable Interest Payment Date, in accordance with Section 2.13 of the Base Indenture.
(d) Interest
Rate Adjustment of the Notes Based on Certain Rating Events. The initial annual interest rate on the Notes of 7.375% per annum is
subject to adjustment from time to time based on changes to the ratings of the Notes by one or more NRSROs (as defined below). The annual
interest rate on the Notes will increase by 1.00% in excess of the initial rate beginning on the date of the occurrence of an Interest
Rate Adjustment Event (as defined below) and until such date that an Interest Rate Adjustment Event is no longer continuing. Beginning
on the date of the expiration of an Interest Rate Adjustment Event, the annual interest rate will revert to 7.375% per annum. The Company
will use our reasonable best efforts to maintain a rating from an NRSRO.
An “Interest Rate
Adjustment Event” shall occur if on any day the Notes have either a Non-IG Rating (as defined below) or no rating from any
NRSRO.
A “Non-IG Rating”
will occur if as of any day (i) assuming the Notes are rated by only one NRSRO, the then most recent rating from such NRSRO is BB+
or lower, (ii) assuming the Notes are rated by only two NRSROs, the then lower of the most recent ratings from such NRSROs is a
BB+ or lower, or (iii) assuming the Notes are rated by three or more NRSROs, the then second lowest of the most recent ratings from
such NRSROs is BB+ or lower.
The ratings categories referred
to in the preceding definitions are those used by Egan-Jones Ratings Company but are deemed to refer also to the equivalent ratings of
any other NRSRO.
“NRSRO”
means a Nationally Recognized Statistical Rating Organization as defined pursuant to Section 3(a)(62) of the Exchange Act, including
but not limited to Egan-Jones Ratings Company, in each case, whose ratings for senior indebtedness of issuers similar to the Company
are authorized for use with, and recognized by, the Securities Valuation Office of the National Association of Insurance Commissioners
(the “SVO”) and which rating shall (a) specifically describe the Notes, including their interest rate, maturity
and CUSIP and (b) in the event such rating is a “private letter rating” (i) address the likelihood of payment of
both the principal and interest of such Notes (which requirement shall be deemed satisfied if the rating is silent as to the likelihood
of payment of both principal and interest and does not otherwise include any indication to the contrary), (ii) not include any prohibition
against sharing such evidence with the SVO or any other regulatory authority having jurisdiction over the Holders of the Notes, and (iii) include
such other information describing the relevant terms of the Notes as may be required from time to time by the SVO or any other regulatory
authority having jurisdiction over the Holders of the Notes.
If the interest rate on the
Notes is increased as described above, the term “interest,” as used with respect to the Notes, will be deemed to include
any such additional interest unless the context otherwise requires.
Promptly upon determination
that an Interest Rate Adjustment Event has occurred, the Company will inform the Trustee in writing of the occurrence of such Interest
Rate Adjustment Event and the interest rate or margin payable as a result therefrom. Absent manifest error, the determination of the
interest rate or margin by the Company shall be binding and conclusive on the Holders, the Trustee, the Calculation Agent and the Company.
The Trustee shall not be
responsible for and makes no representation as to any act or omission of any NRSRO or any rating with respect to the Notes. The Trustee
shall have no obligation to independently determine or verify if any Interest Rate Adjustment Event has occurred or notify the Holders
of any event dependent upon the rating of the Notes, or if the rating on the Notes has been changed, suspended or withdrawn by any NRSRO.
ARTICLE III
OPTIONAL REDEMPTION
Section 3.01 Applicability
of Article III of the Base Indenture.
(a) Article III
of the Base Indenture shall not apply to the Notes. Instead, the provisions of this Article III shall, with respect to the Notes,
supersede in its entirety Article III of the Base Indenture.
Section 3.02 [Reserved].
Section 3.03 Redemption.
(a) Prior
to July 31, 2025 (24 months prior to the Maturity Date) (the “Make Whole Date”), the Company may redeem the Notes
at its option, in whole or in part, at any time and from time to time at a redemption price (expressed as a percentage of principal amount
and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values
of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on
the Make Whole Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Notes Treasury Rate plus
50 basis points, less (b) interest accrued to (but not including) the redemption date, and
(2) 100% of the principal amount of the
Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to (but not including) the redemption date of the Notes.
On or after the Make Whole
Date and prior to July 31, 2026 (12 months prior to the Maturity Date), the Company may redeem the Notes, in whole or in part, at
any time and from time to time, at a redemption price equal to 103.688% of the principal amount of the Notes being redeemed plus accrued
and unpaid interest thereon to (but not including) the redemption date.
On or after the July 31,
2026 and prior to the Maturity Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption
price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to (but not including)
the redemption date.
A redemption of the Notes,
in whole or in part, pursuant to this Section 3.03(a) is referred to herein as an “Optional Redemption”
and the applicable redemption price for such redemption is referred to herein as the “Redemption Price.”
(b) Notwithstanding
Section 3.03(a), interest due on any Note on an Interest Payment Date falling on or prior to a Redemption Date will be payable to
Holders at the Close of Business on the record date for such Interest Payment Date.
Section 3.04 Notice
of Redemption; Selection of Notes. (a) If the Company wishes to exercise its right to redeem
all or, as the case may be, any part of the Notes pursuant to Section 3.03, it shall fix a date for redemption (each, a “Redemption
Date”), and it or, at its written request received by the Trustee not less than five calendar days prior to the date of the
Redemption Notice (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense
of the Company, shall provide notice of such redemption (a “Redemption Notice”) not less than thirty (30) nor more
than sixty (60) calendar days prior to the Redemption Date by mail or electronic delivery to each Holder of Notes so to be redeemed as
a whole or in part at its last address as the same appears on the books of the Registrar. The Redemption Date must be a Business Day.
(b) The
Redemption Notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, failure to give such Redemption Notice or any defect in the Redemption Notice to the Holder
of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any
other Note.
(c) Each
Redemption Notice shall specify:
(i) the
Redemption Date;
(ii) the
Redemption Price;
(iii) that
on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if
any, shall cease to accrue on and after the Redemption Date;
(iv) the
place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v) the
CUSIP and ISIN or other similar numbers, if any, assigned to such Notes; and
(vi) if
fewer than all of the Outstanding Notes are to be redeemed, and in such case any Note is redeemed in part only, the portion of the principal
amount thereof to be redeemed and that on and after the Redemption Date, upon surrender of such Note, a new Note in principal amount
equal to the unredeemed portion thereof shall be issued.
(d) A
Redemption Notice shall be irrevocable.
(e) If
fewer than all of the Outstanding Notes are to be redeemed, the Notes shall be selected for Optional Redemption (in principal amounts
of $1,000 or multiples thereof) by such method the Trustee deems fair and appropriate and as is required by the Depository pursuant to
the Applicable Procedures, provided that such method complies with the rules of any securities exchange on which the Notes are listed.
(f) In
the event of any redemption in part, the Company shall not be required to register the transfer of or exchange any Note so selected for
redemption, in whole or in part, except the unredeemed portion of any Note being redeemed in part. Upon surrender of a Note that is redeemed
in part, the Company shall execute and the Trustee will authenticate and deliver to the Holder, at the Company’s expense, a new
Note in a principal amount equal to the principal amount of the unredeemed portion of the Note which was surrendered.
Section 3.05 Payment
of Notes Called for Redemption. (a) If any Redemption Notice has been given in respect
of the Notes in accordance with Section 3.04, the Notes shall become due and payable on the Redemption Date at the place or places
stated in the Redemption Notice and at the applicable Redemption Price. On presentation and surrender of the Notes at the place or places
stated in the Redemption Notice, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
(b) Prior
to the Open of Business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of
the Company is acting as the Paying Agent, shall segregate and hold in trust an amount of cash (in immediately available funds if deposited
on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to
receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for such Notes. The Paying
Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption
Price.
Section 3.06 Restrictions
on Redemption. (a) The Company may not redeem any Notes on any date if the principal amount
of the Notes has been accelerated in accordance with the terms of the Indenture, and such acceleration has not been rescinded, on or
prior to the Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption
Price with respect to such Notes).
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment
of Principal, Interest, Change of Control Payment and Redemption Price. Section 4.01
of the Base Indenture shall not apply with respect to the Notes. Instead, this Section 4.01 shall, solely with respect to the Notes,
replace Section 4.01 of the Base Indenture in its entirety.
The Company covenants and
agrees that it will cause to be paid the principal of (including the Change of Control Payment and the Redemption Price, if applicable),
and accrued and unpaid interest, if any, on each of the Notes at the places, at the respective times and in the manner provided herein
and in the Notes.
Section 4.02 Maintenance
of Office or Agency. Section 2.05 of the Base Indenture shall not apply with respect to
the Notes. Instead, this Section 4.02 shall, solely with respect to the Notes, replace Section 2.05 of the Base Indenture in
its entirety and references in the Base Indenture to Section 2.05 of the Base Indenture shall be deemed replaced with references
to this Section 4.02.
The Company will maintain
in the United States of America an office or agency where (a) the Notes may be presented or surrendered for registration of transfer
or for exchange (the “Registrar”), (b) the Notes may be presented or surrendered for payment (the “Paying
Agent”) or (c) notices and demands to or upon the Company in respect of the Notes and the Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency
of the Trustee.
The Company may also from
time to time designate co-Registrars or one or more other offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The
term “Paying Agent” includes any such additional or other offices or agencies designated for the presentation or surrender
of the Notes for payment.
The Company hereby initially
designates the Trustee as the Paying Agent, Registrar and Custodian, and the Corporate Trust Office, which shall be in the continental
United States, shall be considered as one such office or agency of the Company for each of the aforesaid purposes.
With respect to any Global
Security, the Corporate Trust Office of the Trustee or any Paying Agent shall be the place of payment where such Global Security may
be presented or surrendered for payment or for registration of transfer or exchange, or where successor Notes may be delivered in exchange
therefor; provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the
Applicable Procedures of the Depository for such Global Security shall be deemed to have been effected at the place of payment for such
Global Security in accordance with the provisions of the Indenture.
Section 4.03 Appointments
to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08 of the Base Indenture, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section 4.04 Provisions
as to Paying Agent. Section 2.06 of the Base Indenture shall not apply with respect to
the Notes. Instead, this Section 4.04 shall, solely with respect to the Notes, replace Section 2.06 of the Base Indenture in
its entirety and references in the Base Indenture to Section 2.06 of the Base Indenture shall be deemed replaced with references
to this Section 4.04.
(a) If
the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that
it will hold all sums held by it as such agent for the payment of the principal of, accrued and unpaid interest, if any, on, the Change
of Control Payment for, and the Redemption Price for, the Notes in trust for the benefit of the holders of the Notes;
(ii) that
it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal of, accrued and unpaid interest,
if any, on, the Change of Control Payment for, or the Redemption Price for, the Notes when the same shall be due and payable; and
(iii) that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or
before each due date of the principal of, accrued and unpaid interest, if any, on, Change of Control Payment for, and the Redemption
Price for, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal, accrued and unpaid interest, Change of Control
Payment or Redemption Price, as the case may be, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of any failure to take such action, provided that, if such deposit is made on the due date, such deposit must be received by the Paying
Agent by Open of Business on such date.
(b) If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal of, accrued and unpaid interest,
if any, on, Change of Control Payment for or Redemption Price for, the Notes, set aside, segregate and hold in trust for the benefit
of the Holders of the Notes a sum sufficient to pay such principal, accrued and unpaid interest, if any, on, Change of Control Payment
or Redemption Price, as the case may be, so becoming due and will promptly notify the Trustee in writing of any failure to take such
action and of any failure by the Company to make any payment of the principal of, accrued and unpaid interest on, Change of Control Payment
for or Redemption Price for, the Notes when the same shall become due and payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of the Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company
or any Paying Agent hereunder as required by this Section 4.04, such sums to be held by the Trustee upon the trusts herein contained
and upon such payment by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all
further liability with respect to such sums.
Section 4.05 Reports.
Section 4.02 of the Base Indenture shall not apply with respect to the Notes. Instead, this Section 4.05 shall, solely
with respect to the Notes, replace Section 4.02 of the Base Indenture in its entirety.
(a) The
Company will file with the Trustee, within fifteen (15) days after it files the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if any, that it is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act, and to otherwise comply with Section 314(a) of the Trust Indenture Act. Any such report,
information or document that the Company files with the Commission through the EDGAR system (or any successor thereto) will be deemed
to be delivered to the Trustee for the purposes of this Section 4.05 at the time of such filing through the EDGAR system (or such
successor thereto); provided, however, that the Trustee shall have no obligation whatsoever to determine whether
or not such filing has occurred.
(b) Delivery
of any such reports, information and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt
of such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee
may rely exclusively on Officers’ Certificates).
Section 4.06 Statements
as to Defaults. The Company shall deliver to the Trustee, as soon as possible, and in any event
within thirty days after the Company becomes aware of the occurrence of any Default or Event of Default, an Officers’ Certificate
setting forth the details of such Default or Event of Default, its status and the action that the Company proposes to take with respect
thereto. Such Officers’ Certificate shall also comply with any additional requirements set forth in Section 4.04 of the Base
Indenture.
Section 4.07 Financial
Covenants. The Company will not permit:
(a) the Recourse Debt
to Equity Ratio (the “Recourse Ratio”) as of the last day of each of its fiscal quarters to exceed 4.0 to 1.0; and
(b) Consolidated Net
Asset Value, as of the last day of each of its fiscal quarters, to be less than the sum of (i) $1,310,000,000 plus
(ii) the greater of (x) zero dollars and (y) 75% of Net Equity Capital Activity.
Solely for the purposes of
this Section 4.07, the following terms have the respective meanings specified below:
“Capital Lease”
means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
“Capital Stock”
means:
(a) with respect to
any Person other than a business trust, any and all shares, interests, participations or other equivalents (however designated and whether
or not voting) of or in its corporate stock, membership interests, partnership interests, or other equity interests, as applicable; and
(b) with respect to
any Person that is a business trust, any and all beneficial ownership interests (however designated and whether or not voting) in such
Person;
in each case including each
class or series of common stock (or other equity interest) and Preferred Stock of such Person but in each case excluding any Indebtedness
or debt securities convertible into or exchangeable for, or any options, warrants, contracts or other securities (including derivative
instruments) exercisable or exchangeable for, convertible into or otherwise for or relating to the purchase or sale of, any of the items
referred to in clauses (a) or (b) above.
“Consolidated Net
Asset Value” means, as of any date of determination with respect to the Company and its Subsidiaries, Total Assets as of such
date less the Total Liabilities as of such date.
“Credit Enhancement
Agreements” means, collectively, any documents, instruments, guarantees or agreements entered into by the Company, any of its
Subsidiaries or any Securitization Entity for the purpose of providing credit support (that is reasonable and customary for such Indebtedness
under then-prevailing market terms for such Indebtedness) with respect to any Non-Recourse Indebtedness or Securitization Indebtedness
permitted (or not prohibited) by the Indenture.
“Governmental Authority”
means
(a) the government of
(i) the United
States of America or any state or other political subdivision thereof, or
(ii) any other
jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any
properties of the Company or any Subsidiary, or
(b) any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Indebtedness”
with respect to any Person means, at any time, without duplication,
(a) its liabilities
for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities
for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business
but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such
property);
(c) (i) all liabilities
appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear
on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as Capital
Leases;
(d) all liabilities
for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities);
(e) all its liabilities
in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);
(f) the aggregate Swap
Termination Value of all Swap Contracts of such Person; and
(g) any Guarantee of
such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person
shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Lien”
means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement
or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements,
voting trust agreements and all similar arrangements).
“Material”
means material in relation to the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole.
“Net Equity Capital
Activity” means the aggregate net cash proceeds from the sale of the Company’s perpetual equity interests (either common
or preferred) at any time after the date of this Supplemental Indenture, plus the aggregate principal amount of Indebtedness net of financing
costs resulting from the conversion of Indebtedness into perpetual equity securities at the time of conversion at any time after the
date of this Supplemental Indenture, less the aggregate amount paid by the Company after the date of this Supplemental Indenture to repurchase
its perpetual equity interests.
“Non-Recourse Indebtedness”
means any Indebtedness of the Company or any of its Subsidiaries:
(a) that is advanced
to finance the acquisition of Securitization Assets or other assets and secured only by the assets to which such Indebtedness relates
(or by a pledge of equity in the Securitization Entity owning such assets) without recourse to the Company or any of its Subsidiaries
(excluding any such Subsidiary that is a Securitization Entity or that owns no Material assets (as determined by the Company in good
faith) other than its interest in a Securitization Entity and, in each case, is a borrower, guarantor, pledgor or other obligor of such
Indebtedness) (other than recourse pursuant to Standard Recourse Undertakings, unless, until and for so long as (but solely for purposes
of the Recourse Ratio covenant) a claim for payment or performance has been made under any such Standard Recourse Undertakings (which
has not been satisfied or waived) at which time the obligations with respect to any such Standard Recourse Undertakings shall (solely
for purposes of such covenant) not be considered Non-Recourse Indebtedness to the extent, and only to the extent, that such claim is
a liability (for GAAP purposes) of the Company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity
or that owns no Material assets (as determined by the Company in good faith) other than its interest in a Securitization Entity and,
in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness));
(b) that is advanced
to any Subsidiaries or group of Subsidiaries of the Company formed for the sole purpose of acquiring or holding Securitization Assets
or other assets (directly or indirectly) against which Indebtedness is incurred that is made without recourse to, and with no cross-collateralization
against, any assets of the Company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity or that
owns no Material assets (as determined by the Company in good faith) other than its interest in a Securitization Entity and, in each
case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness) (other than recourse pursuant to Standard Recourse Undertakings,
unless, until and for so long as (but solely for purposes of the Recourse Ratio covenant) a claim for payment or performance has been
made under any such Standard Recourse Undertakings (which has not been satisfied or waived) at which time the obligations with respect
to any such Standard Recourse Undertakings shall (solely for purposes of such covenant) not be considered Non-Recourse Indebtedness to
the extent, and only to the extent, that such claim is a liability (for GAAP purposes) of the Company or any of its Subsidiaries (excluding
any such Subsidiary that is a Securitization Entity or that owns no Material assets (as determined by the Company in good faith) other
than its interest in a Securitization Entity and, in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness));
(c) in respect of which
recourse for payment is contractually limited to specific assets of the Company or any of its Subsidiaries encumbered by a Lien securing
such Indebtedness (other than recourse pursuant to Standard Recourse Undertakings, unless, until and for so long as (but solely for purposes
of the Recourse Ratio covenant) a claim for payment or performance has been made under any such Standard Recourse Undertakings (which
has not been satisfied or waived) at which time the obligation with respect to any such Standard Recourse Undertakings shall (solely
for purposes of such covenant) not be considered Non-Recourse Indebtedness to the extent, and only to the extent, that such claim is
a liability (for GAAP purposes) of the Company or any of its Subsidiaries (excluding any such Subsidiary that is a Securitization Entity
or that owns no Material assets (as determined by the Company in good faith) other than its interest in a Securitization Entity and,
in each case, is a borrower, guarantor, pledgor or other obligor of such Indebtedness)); and
(d) customary completion
or budget guarantees provided to lenders in connection with any of the foregoing clauses (a) through (c) in the ordinary course
of business unless, until and for so long as (but solely for purposes of the Recourse Ratio covenant) a claim for payment or performance
has been made at which time the obligations shall (solely for purposes of such covenant) not be considered Non-Recourse Indebtedness
to the extent, and only to the extent, that such claim is a liability (for GAAP purposes) of the Company or any of its Subsidiaries.
For the purposes of clarity,
it is understood and agreed that, solely for purposes of the Recourse Ratio covenant, if the payment of any Indebtedness that would otherwise
constitute Non-Recourse Indebtedness is guaranteed in part but not in whole by the Company or a Subsidiary of the Company in such manner
that the portion of such Indebtedness so guaranteed no longer constitutes Non-Recourse Indebtedness, then (solely for the purposes of
such covenant) the portion of the Indebtedness so guaranteed shall be deemed to constitute Recourse Indebtedness and the remainder of
such Indebtedness shall be deemed to constitute Non-Recourse Indebtedness.
“Preferred Stock”
means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of
such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Recourse Debt to
Equity Ratio” means, as of any date of determination, with respect to the Company and its Subsidiaries, the ratio of (a) Recourse
Indebtedness outstanding on such date to (b) Tangible Capital Base as of such date, determined on a consolidated basis in accordance
with GAAP.
“Recourse Indebtedness”
means all Indebtedness other than Non-Recourse Indebtedness and Securitization Indebtedness.
“Securitization”
means a public or private transfer, sale or financing of servicing advances, mortgage loans, installment contracts, other loans and related
assets, accounts receivable, real estate assets, mortgage receivables and any other assets capable of being securitized (collectively,
“Securitization Assets”) by which the Company and/or any of its Subsidiaries directly or indirectly securitizes a pool of
specified Securitization Assets or incurs Non-Recourse Indebtedness secured by specified Securitization Assets, including any such transaction
involving the sale of specified servicing advances or mortgage loans to a Securitization Entity.
“Securitization
Assets” has the meaning set forth in the definition of “Securitization”.
“Securitization
Entity” means (a) any Person (whether or not a Subsidiary of the Company) established for the purpose of issuing asset-backed
or mortgage-backed or mortgage pass-through securities of any kind (including collateralized mortgage obligations and net interest margin
securities) or other similar securities; (b) any special purpose Subsidiary established for the purpose of selling, depositing or
contributing Securitization Assets into a Person described in clause (a) or for the purpose of holding Capital Stock of, or securities
issued by, any related Securitization Entity, regardless of whether such Person is an issuer of securities; provided that such Person
is not an obligor with respect to any Indebtedness of the Company or any Subsidiary; (c) any Person established for the purpose
of holding Securitization Assets and issuing Non-Recourse Indebtedness secured by such Securitization Assets; (d) any special purpose
Subsidiary of the Company formed exclusively for the purpose of satisfying the requirement of Credit Enhancement Agreements (including,
without limitation, any Subsidiary that is established for the purpose of owning another Securitization Entity and pledging the equity
of that other Securitization Entity as security for the Indebtedness of such other Securitization Entity) and regardless of whether such
Subsidiary is an issuer of securities, provided that such Subsidiary is not an obligor with respect to any Indebtedness of the Company
or any Subsidiary other than under Credit Enhancement Agreements; and (e) any other Subsidiary of the Company which is established
for the purpose of (i) acting as sponsor for and organizing and initiating Securitizations or (ii) facilitating or entering
into a Securitization, in each case that engages in activities reasonably related or incidental thereto and that is not an obligor or
guarantor with respect to any Indebtedness of the Company or any Subsidiary. Whether or not a Person is a Securitization Entity shall
be determined by the Company in good faith.
“Securitization
Indebtedness” means (a) Indebtedness of the Company or any of its Subsidiaries incurred pursuant to on-balance sheet Securitizations
and (b) any Indebtedness consisting of advances made to the Company or any of its Subsidiaries based upon securities issued by a
Securitization Entity pursuant to a Securitization and acquired or retained by the Company or such Subsidiary which, in each case, is
recourse solely to the assets subject to the related Securitization and not to the Company or such Subsidiary generally (other than Securitization
Repurchase Obligations).
“Securitization
Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Securitization to repurchase Securitization
Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result
of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result
of any action taken by, any failure to take action by or any other event relating to the seller.
“Standard Recourse
Undertakings” means, with respect to any Securitization or Indebtedness, (a) such representations, warranties, covenants
and indemnities which are customarily (as determined by the Company) made by sellers of financial assets or other Securitization Assets,
including without limitation, Securitization Repurchase Obligations, and (b) such customary (as determined by the Company) carve-out
matters for which the Company and/or its Subsidiaries acts as guarantor in connection with any such Securitization or Indebtedness, such
as fraud, misappropriation and misapplication of funds, misrepresentation, criminal acts, repurchase obligations for breach of representations
or warranties, environmental indemnities, insolvency events and non-approved transfers.
“Subordinated Debt”
means all Indebtedness of the Company and its Subsidiaries on a consolidated basis that is contractually subordinated in right of payment
to the Notes.
“Swap Contract”
means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward
rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options,
spot contracts or any other similar transactions or any of the foregoing (including any options to enter into any of the foregoing),
and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. or any International
Foreign Exchange Master Agreement.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amounts(s) determined as the mark-to-market values(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease”
means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted
for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased
for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Tangible Capital
Base” means, with respect to the Company and its Subsidiaries, on any date of determination, Total Assets (not including any
intangible assets of the Company and its Subsidiaries) as of such date less Total Liabilities (inclusive of Subordinated Debt) as of
such date, in each case determined on a consolidated basis in accordance with GAAP.
“Total Assets”
means, as of any date of determination, the aggregate balance of investments reflected in the books and records of the Company and its
Subsidiaries and all cash or cash equivalents held by the Company and its Subsidiaries as of such date, in each case determined on a
consolidated basis in accordance with GAAP. For avoidance of doubt, investments for this purpose include without limitation loans, preferred
equity and other equity investments accounted for as debt in accordance with GAAP, owned real estate and investments in Subsidiaries,
in each case, with respect to the Company and its Subsidiaries. Such assets of the Company and its Subsidiaries will be included at their
fair market value as determined in accordance with GAAP.
“Total Liabilities”
means, on any date of determination, all amounts that would be included under total liabilities on a balance sheet of the Company and
its Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP.
Section 4.08 Offer
to Repurchase Upon a Change of Control Repurchase Event. (a) If a Change of Control Repurchase
Event occurs, unless the Company has provided notice of the redemption of the Notes pursuant to Section 3.04 hereof, each Holder
of Notes will have the right to require the Company to purchase some or all (in minimum principal amounts of $2,000 or an integral multiple
of $1,000 in excess thereof) of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”).
(b) If
a Change of Control Offer is required, within 30 days following a Change of Control Repurchase Event or, at the Company’s option,
prior to any Change of Control Repurchase Event, but after the public announcement of a Change of Control Repurchase Event, the Company
will deliver a notice in a manner provided in Section 3.04 herein to each Holder (with a copy to the Trustee and the Paying Agent,
if other than the Trustee) describing the Change of Control Repurchase Event and offering to repurchase Notes on a specified date (the
“Change of Control Payment Date”) at a cash price of 101% of the principal amount of any Notes to be repurchased,
plus accrued and unpaid interest thereon to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”)
(subject to the right of Holders at the Close of Business on the relevant record date to receive interest due on any Interest Payment
Date falling on or prior to the Change of Control Payment Date). The Change of Control Payment Date will be no earlier than thirty (30)
days and no later than sixty (60) days from the date the notice is sent. Among other things, such notice shall state that if a Holder
elects to have a Note purchased pursuant to a Change of Control Offer it will be required to surrender the Note, with any form specified
in such notice, to the Person and at the address specified in the notice (or, in the case of Global Securities, to surrender the Note
and provide the information required in accordance with the Applicable Procedures) prior to the Close of Business on the third Business
Day prior to the Change of Control Payment Date. The Change of Control Offer shall, if given prior to the date of consummation of the
Change of Control Repurchase Event, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring
on or prior to the Change of Control Payment Date specified in the Change of Control Offer.
(c) On
the Change of Control Payment Date, the Company will, to the extent lawful:
(i) accept
for payment all Notes properly tendered and not withdrawn pursuant to the Change of Control Offer;
(ii) deposit
the Change of Control Payment with the Paying Agent in respect of all Notes so accepted; and
(iii) deliver
to the Trustee the Notes accepted and an Officers’ Certificate stating the aggregate principal amount of all Notes repurchased
by the Company and requesting that such Notes be cancelled.
(d) The
Paying Agent will promptly send to each Holder of Notes properly tendered and not withdrawn the Change of Control Payment for such Notes,
and the Trustee will promptly authenticate and send, or cause to be transferred by book-entry, to each Holder a new Note in principal
amount equal to any unrepurchased portion of the Notes surrendered; provided that each new Note will be in a minimum principal
amount of $2,000 and integral multiples of $1,000 in excess thereof.
(e) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations to the
extent those laws and regulations are applicable to any Change of Control Offer. If the provisions of any of the applicable securities
laws or securities regulations conflict with the provisions of this Section 4.8, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under the covenant described above by virtue of that compliance.
(f) The
Company shall not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if (1) a third party makes
the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.8
applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change
of Control Offer or (2) the Company has given notice of redemption pursuant to Section 3.04 hereof prior to the occurrence
of the Change of Control Repurchase Event. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be
made in advance of a Change of Control Repurchase Event, subject to one or more conditions precedent, including, but not limited to,
the consummation of such Change of Control, if a definitive agreement is in place for the transaction that will give rise to a Change
of Control Repurchase Event at the time the Change of Control Offer is made.
ARTICLE V
REMEDIES
Section 5.01 Amendments
to the Base Indenture.
(a) Article VI
of the Base Indenture shall not apply with respect to the Notes. Instead, this Article V shall, solely with respect to the Notes,
replace Article VI of the Base Indenture in its entirety.
(b) Each
reference in the Base Indenture to Section 6.04 is, solely with respect to the Notes, hereby deemed replaced by a reference to Section 5.04
hereof.
(c) Each
reference in the Base Indenture to Section 6.05 is, solely with respect to the Notes, hereby deemed replaced by a reference to Section 5.05
hereof.
(d) Solely
with respect to the Notes, Section 7.01(c) of the Base Indenture is hereby amended to delete “, or its willful misconduct,”.
Section 5.02 Events
of Default. Each of the following events (and only the following events) shall be an “Event
of Default” wherever used with respect to the Notes:
(a) default
in any payment of interest on any Note when due and payable, and the default continues for a period of thirty (30) days;
(b) default
in the payment of the principal of or of any premium of any Note (including the Redemption Price) when due and payable on the Maturity
Date, upon Optional Redemption, upon declaration of acceleration or otherwise;
(c) failure
by the Company to comply with its obligations under Article VIII hereof;
(d) default
in tendering payment for the Notes upon a Change of Control Repurchase Event, when such payment remains unpaid sixty days after the Change
of Control Payment Date;
(e) default
in the performance of any other obligation of the Company contained in the Indenture or the Notes (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section 5.02 specifically provided for), which continues for
sixty days after written notice from the Trustee or the Holders of more than 25% of the aggregate outstanding principal amount of the
Notes;
(f) an
event of default, as defined in any bond, note, debenture or other evidence of debt of the Company or any Significant Subsidiary of the
Company in excess of $35,000,000 singly or in aggregate principal amount of such issues of such persons, whether such debt exists now
or is subsequently created, which becomes accelerated so as to be due and payable prior to the date on which the same would otherwise
become due and payable and such acceleration(s) shall not have been annulled or rescinded within thirty (30) days of such acceleration
or the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within thirty (30) days of such payment default; provided, however, that if such event
of default, acceleration(s) or payment default(s) are contested by the Company, a final and non-appealable judgment or order
confirming the existence of the default(s) and/or the lawfulness of the acceleration(s), as the case may be, shall have been entered;
(g) a
final and non-appealable judgment or order for the payment of money in excess of $35,000,000 (excluding any amounts covered by insurance)
singly or in the aggregate for all such final judgments or orders against all such persons: (i) shall be rendered against the Company
or any Significant Subsidiary of the Company and shall not be paid or discharged and (ii) there shall by any period of sixty (60)
consecutive days following the entry of the final judgment or order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such person to exceed $35,000,000 during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(h) the
Company or any Significant Subsidiary of the Company shall commence a voluntary case or other proceeding seeking the liquidation, reorganization
or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
the Company or such Significant Subsidiary of the Company or any substantial part of the Company’s or such Significant Subsidiary
of the Company’s property, or shall consent to any such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due; or
(i) an
involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary of the Company seeking liquidation,
reorganization or other relief with respect to the Company or such Significant Subsidiary of the Company or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or such Significant Subsidiary of the Company or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a period of thirty (30) consecutive days.
Section 5.03 Acceleration;
Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body),
then, and in each and every such case (other than an Event of Default specified in Section 5.02(h) or Section 5.02(i)),
unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25%in
aggregate principal amount of the Notes then Outstanding, by notice in writing to the Company (and to the Trustee if given by the Holders),
may declare 100% of the principal of, and premium if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable
immediately. If an Event of Default specified in Section 5.02(h) or Section 5.02(i) occurs and is continuing, the
principal of, and accrued and unpaid interest, if any, on all Notes shall be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder of Outstanding Notes. At any time after the Trustee or the Holders have accelerated the
repayment of the principal, premium, if any, and all unpaid interest on the Notes, but before the Trustee has obtained a judgment or
decree for payment of money due, the Holders of a majority in aggregate principal amount of Outstanding Notes may rescind and annul that
acceleration and its consequences, provided that all payments due, other than those due as a result of acceleration, have been
made and all Events of Default have been remedied or waived.
Section 5.04 Waiver
of Past Defaults. The Holders of a majority in aggregate principal amount of the Notes then
Outstanding, by written notice to the Company and to the Trustee, may waive (including by way of consents obtained in connection with
a repurchase of, or tender or exchange offer for, the Notes) all past Defaults or Events of Default with respect to the Notes (other
than a Default or an Event of Default resulting from nonpayment of principal or interest or any other provisions that requires the consent
of each affected Holder to amend).
Section 5.05 Control
by Majority. At any time, the Holders of a majority of the aggregate principal amount of the
then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or
for exercising any trust or power conferred on the Trustee with respect to the Notes, provided that (i) such direction is
not in conflict with any rule of law or the Indenture, (ii) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction and (iii) the Trustee need not take any action that might involve it in personal liability
or be unduly prejudicial to the Holders not joining therein. Before proceeding to exercise any right or power under the Indenture at
the direction of the Holders, the Trustee is entitled to receive from those Holders security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which it might incur in complying with any direction.
Section 5.06 Limitation
on Suits. A Holder will have the right to institute a proceeding with respect to the Indenture
for any remedy under the Indenture if:
(a) such
Holder or Holders of not less than 25% in aggregate principal amount of the Outstanding Notes have given to the Trustee written notice
of a continuing Event of Default with respect to the Notes;
(b) such
Holder or Holders have offered the Trustee indemnification or security reasonably satisfactory to the Trustee against the costs, expenses
and liabilities incurred in connection with such written request;
(c) the
Trustee has not received from the Holders of a majority in aggregate principal amount of the Outstanding Notes a written direction inconsistent
with the request within sixty (60) days; and
(d) the
Trustee fails to institute the proceeding within the sixty (60) days.
Notwithstanding the foregoing, the Holder has
the right, which is absolute and unconditional, to receive payment of the principal of and interest on its Notes on the Interest Payment
Dates or Maturity Date, as applicable (or, in the case of an Optional Redemption or a Change of Control Repurchase Event, on the applicable
Redemption Date or Change of Control Payment Date, as applicable) and to institute suit for the enforcement of any such payment and such
rights shall not be impaired without the consent of such Holder. A Holder may not use the Indenture to prejudice the rights of any other
Holder or to obtain a preference or priority over any other Holder, it being understood that the Trustee does not have any affirmative
duty to ascertain whether any usage of the Indenture by a Holder is unduly prejudicial to such other Holders.
Section 5.07 Collection
of Indebtedness; Suit for Enforcement by Trustee. If an Event of Default specified in Section 5.02(a) or
5.02(b) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, interest on, Change of Control Payment for, Redemption Price for, as
the case may be, and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, as well as any other amounts that may be due under Section 7.07
of the Base Indenture.
Section 5.08 Trustee
May Enforce Claims Without Possession of Notes. All rights of action and claims under the
Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
Section 5.09 Trustee
May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable to have the claims of the Trustee and the Holders allowed in any judicial proceedings
relative to the Company, its creditors or its property and, unless prohibited by law or applicable regulations, will be entitled to collect,
receive and distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and, in the event that the Trustee consents to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.10 of the
Base Indenture. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.10 of the Base Indenture out of the estate in any such proceeding,
will be denied for any reason, payment of the same will be secured by a lien on, and is paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to receive in such proceeding, whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing herein contained will be deemed to authorize the Trustee to authorize
or consent to, or to accept or to adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 5.10 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under the Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.11 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in Section 2.09 of the Base Indenture, no right or remedy herein conferred upon or
reserved to the Trustee or 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 5.12 Delay
or Omission Not a Waiver. No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to the Holders may
be exercised from time to time and as often as may be deemed expedient by the Trustee (subject to the limitations contained in the Indenture)
or by the Holders, as the case may be.
Section 5.13 Priorities.
If the Trustee collects any money pursuant to this Article V, it will pay out the money in the following order:
First: to the Trustee,
its agents and attorneys for amounts due under Section 7.07 of the Base Indenture, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to the Holders,
for any amounts due and unpaid on the principal of, accrued and unpaid interest on, Change of Control Payment for, Redemption Price for,
without preference or priority of any kind, according to such amounts due and payable on all of the Notes; and
Third: the balance,
if any, to the Company or to such other party as a court of competent jurisdiction directs.
The Trustee may fix a record
date and payment date for any payment to the Holders pursuant to this Section 5.13. If the Trustee so fixes a record date and a
payment date, at least fifteen days prior to such record date, the Company will deliver to each Holder and the Trustee a written notice,
which notice will state such record date, such payment date and the amount of such payment.
Section 5.14 Undertaking
for Costs. All parties to the Indenture agree, and each Holder, by such Holder’s acceptance
of a Note, 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 the Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, 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, however, that the provisions of this Section 5.14
shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the Notes then Outstanding, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of, accrued and unpaid interest, if any, on, Change of Control Payment for, or Redemption Price for,
any Note on or after the due date expressed or provided for in the Indenture.
Section 5.15 Waiver
of Stay, Extension and Usury Laws. The Company covenants that, to the extent that it may lawfully
do so, it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of the Indenture;
and the Company, to the extent that it may lawfully do so, hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will
instead suffer and permit the execution of every such power as though no such law has been enacted.
Section 5.16 Notices
from the Trustee. Notwithstanding anything to the contrary in the Base Indenture, including
Section 7.05 of the Base Indenture, whenever a Default occurs and is continuing and is actually known to the Trustee, the Trustee
must deliver notice of such Default to the Holders within ninety (90) days after the date on which such Default first occurred. Except
in the case of a Default in the payment of the principal of, interest on, Change of Control Payment for or Redemption Price for, any
Note or of a Default in the payment or delivery, as the case may be, the Trustee shall be protected in withholding such notice if and
so long as the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders.
ARTICLE VI
SATISFACTION AND DISCHARGE; LEGAL AND COVENANT DEFEASANCE
Section 6.01 Inapplicability
of Provisions of Base Indenture; Satisfaction and Discharge of the Indenture. Article VIII
of the Base Indenture shall not apply with respect to the Notes. Instead, this Article VI shall, solely with respect to the Notes,
replace Article VIII of the Base Indenture in its entirety.
Section 6.02 Discharge
of Liability on Notes. The Indenture will be discharged and will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the Notes as expressly provided for in the Indenture and except
for the Trustee’s right to its fees and to reimbursement of its reasonable out-of-pocket expenses (including, without limitation,
reasonable fees and expenses of its counsel) and indemnification as expressly provided for in the Indenture) as to all Outstanding Notes,
when:
(a) either
(i) all
Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for cancellation; or
(ii) all
Notes not theretofore delivered to the Trustee for cancellation have become due and payable by giving of a notice of redemption, upon
stated maturity or otherwise, will become due and payable within one year (upon stated maturity or otherwise), or are to be called for
redemption within one (1) year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to be deposited with the Trustee
cash in U.S. Dollars in such amount as will be sufficient, Government Obligations the scheduled payments of principal of and interest
on which will be sufficient (without any reinvestment of such interest), or a combination thereof in such amounts as will be sufficient,
to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on such Notes to the Maturity Date or any earlier Redemption Date or other maturity date, together with
irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof through the Maturity Date
or such Redemption Date or other maturity date;
(b) the
Company has paid or caused to be paid all other sums payable by the Company under the Indenture; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject
to customary assumptions, exceptions and limitations) stating that all conditions precedent under this Section 6.02 relating to
the satisfaction and discharge of the Indenture have been complied with.
Notwithstanding the foregoing
paragraph, the provisions of Sections 6.05, 6.06, 6.07, 6.08 and 9.02 hereof and, if the Outstanding Notes have been or are to be called
for redemption, Article III hereof shall survive until the Notes have been cancelled or are no longer Outstanding.
After such delivery or irrevocable
deposit, the Trustee upon request shall execute proper instruments acknowledging the discharge of the Indenture and the Company’s
obligations under the Notes and the Indenture, except for those surviving obligations specified above.
Section 6.03 Legal
Defeasance and Covenant Defeasance. (a) The Company may, at its option and at any time,
elect to have either Section 6.03(b) or (c) be applied to the Notes upon compliance with the conditions set forth in Section 6.04.
(b) Upon
the Company’s exercise under Section 6.03(a) of the option under this Section 6.03(b), the Company shall be discharged
from all of its obligations under the Notes and the Indenture (“Legal Defeasance”) on the date that the applicable
conditions set forth in Section 6.04 shall have been satisfied, and on or after that date any omission to comply with any such obligations
shall no longer constitute a Default or Event of Default. Such Legal Defeasance shall mean that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding Notes (which shall thereafter be deemed to be Outstanding only
for purposes of the provisions referred to in clauses (1) through (4) below), and the Company shall be released from all of
its other obligations under the Indenture and the Notes, except that the following provisions of the Indenture shall survive:
(i) the
rights of Holders to receive, solely from the trust fund described in clause (a) of the first paragraph of Section 6.04, payments
in respect of the principal of, and premium, if any, and interest on the Notes when such payments are due;
(ii) the
Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payments on the Notes;
(iii) the
rights, powers, trust, duties and immunities of the Trustee and the Company’s obligations in connection therewith; and
(iv) the
provisions of this Section 6.03, Sections 6.05, 6.06, 6.07, 6.08 and 9.02 hereof and, if the Outstanding Notes have been or are
to be called for redemption, Article III hereof.
On and after the date of
Legal Defeasance, payment of the Notes may not be accelerated because of an Event of Default.
Subject to compliance with
the conditions set forth in Section 6.04, the Company may exercise its option under this Section 6.03(b) notwithstanding
the prior exercise of its option under Section 6.03(c).
(c) Upon
the Company’s exercise under Section 6.03(a) of the option under this Section 6.03(c), the Company shall be released
and discharged from all of its covenants and agreements under Sections 4.05 through 4.08 hereof, inclusive, and Sections 8.02 and 8.04
hereof on the date that the applicable conditions set forth in Section 6.04 shall have been satisfied (“Covenant Defeasance”),
and on or after that date the foregoing covenants and agreements shall no longer apply, and the Notes shall be deemed not to be Outstanding
for purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with
any such covenants or agreements, but shall continue to be deemed Outstanding for all other purposes hereunder, and the Company may omit
to comply with and shall have no liability in respect of any term, condition, obligation or limitation set forth in any of the Sections,
clauses and other provisions set forth above in this Section 6.03(c), whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section, clause or other provision or by reason of any reference in any such Section, clause or other provision
to any other Section, clause or provision herein, in the Base Indenture or in any other document and such omission to comply with any
covenant or agreement set forth in any such Section, clause or other provision shall not constitute a Default or Event of Default under
the Indenture. On and after the date that Covenant Defeasance occurs, the Events of Default described in clause (c), clause (d) and
clause (e) (solely insofar as it relates to the Company’s obligations under the covenants and agreements as to which Covenant
Defeasance has occurred) of Section 5.02 will no longer constitute Events of Default or otherwise apply.
(d) Subject
to compliance with Section 6.03(b) or (c), the Trustee, upon request shall execute proper instruments acknowledging such Legal
Defeasance or Covenant Defeasance and the release, termination and/or discharge of the instruments, agreements and other provisions referred
to in such Section 6.03(b) or (c), as applicable.
Section 6.04 Conditions
to Legal Defeasance and Covenant Defeasance. The following shall be the conditions to Legal
Defeasance or Covenant Defeasance:
(a) the
Company shall have irrevocably deposited with the Trustee, in trust, for the benefit of the Holders of the Notes cash in U.S. Dollars
in such amount as will be sufficient, Government Obligations the scheduled payments of principal of and interest on which will be sufficient
(without any reinvestment of such interest), or a combination thereof in such amounts as will be sufficient, as confirmed, certified or
attested by an Independent Financial Advisor in writing to the Trustee, to pay the principal of, premium, if any, and interest on the
Notes on the Maturity Date or any earlier Redemption Date;
(b) in
the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States (which Opinion
of Counsel may be subject to customary assumptions, exceptions and limitations) confirming that:
(i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(ii) since
the Issue Date, there has been a change in the applicable U.S. federal income tax law;
in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in
the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States (which Opinion
of Counsel may be subject to customary assumptions, exceptions and limitations) confirming that the Holders of the Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no
Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to clause (a) of this Section 6.04
(other than a Default and Event of Default resulting from borrowing of funds to be applied to make such deposit and any similar or substantially
contemporaneous transactions and, in each case, the granting of any Liens in connection therewith);
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any agreement or
instrument that, in the judgment of the Company, is material with respect to the Company and its Subsidiaries taken as a whole (excluding
the Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions, exceptions and limitations), each stating that all conditions precedent provided for in this Section 6.04
to such Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with; and
(g) the
Company shall have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes on the
Maturity Date or on the applicable Redemption Date, as the case may be (which instructions may be contained in the Officers’ Certificate
referred to in clause (f) of this Section 6.04).
Notwithstanding the foregoing,
the Opinion of Counsel required by clause (b) of this Section 6.04 with respect to a Legal Defeasance need not be delivered
if all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due
and payable on their maturity date or any earlier Redemption Date within one (1) year and, in the case of any such redemption, under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Section 6.05 Application
of Trust Money. The Trustee shall hold in trust the U.S. Dollars and Government Obligations
deposited with it pursuant to this Article VI and any principal, interest or other proceeds in respect of such Government Obligations.
It shall apply the deposited money and the proceeds from Government Obligations through the Paying Agent and in accordance with the Indenture
to the payment of principal of, premium, if any, and interest on the Notes.
Anything in this Article VI
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the Company’s request any
U.S. Dollars and Government Obligations or proceeds therefrom held by it as provided in Section 6.02 or 6.04 which are in excess
of the amount thereof that would then be required to be deposited to effect an equivalent discharge of the Indenture pursuant to Section 6.02
or an equivalent Legal Defeasance or Covenant Defeasance pursuant to Section 6.03, as evidenced by a written confirmation, certification
or attestation by an Independent Financial Advisor delivered to the Trustee.
Section 6.06 Repayment
to the Company. The Trustee and the Paying Agent shall promptly deliver to the Company upon
request any excess U.S. Dollars and Government Obligations and proceeds therefrom held by them at any time and thereupon shall be relieved
from all liability with respect to such money, securities and proceeds. Subject to any applicable abandoned property law, any money,
Government Obligations or proceeds therefrom deposited with or received by the Trustee or any Paying Agent, or held by the Company or
any of its Subsidiaries, in trust for the payment of the principal, premium, if any, or interest on any Note, remaining unclaimed for
two (2) years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company or any of its Subsidiaries) shall be discharged from such trust and the Holder of such Note shall
thereafter look only to the Company as a general creditor for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such money, Government Obligations and proceeds, and all liability of the Company or any of its Subsidiaries as trustee
thereof, shall thereupon cease.
Section 6.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars and Government Obligations (or proceeds therefrom) deposited pursuant
to Section 6.02 or 6.04 in accordance with Section 6.05 by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations
under the Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 6.02 or
6.04, as applicable, until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Dollars and Government Obligations
in accordance with Section 6.05; provided that if the Company has made any payment of principal of, or premium, if any, or interest
on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the U.S. Dollars and Government Obligations held by the Trustee or Paying Agent.
Section 6.08 Indemnity
for Government Obligations. The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against any Government Obligations deposited pursuant to Section 6.02 or 6.04 or
the principal and interest received on such Government Obligations.
ARTICLE VII
SUPPLEMENTAL INDENTURES
Section 7.01 Supplemental
Indentures Without Consent of Holders. Section 9.01 of the Base Indenture shall not apply
with respect to the Notes. Instead, this Section 7.01 shall, solely with respect to the Notes, replace Section 9.01 of the
Base Indenture in its entirety.
Without the consent of any
Holder, the Company (when authorized by a Board Resolution) and the Trustee, at any time and from time to time, may enter into one (1) or
more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to
conform the terms of the Indenture or the Notes to the description thereof in the Prospectus Supplement or the Prospectus;
(b) to
evidence the succession by a Successor Company and to provide for the assumption by a Successor Company of the Company’s obligations
under the Indenture;
(c) to
add Guarantees with respect to the Notes and to remove Guarantees with respect to the Notes in accordance with the terms of the Indenture
and the Notes;
(d) to
secure the Notes;
(e) to
add to the Company’s covenants such further covenants, restrictions or conditions for the benefit of the Holders or to surrender
any right or power conferred upon the Company under the Indenture or the Notes;
(f) to
cure any ambiguity, omission, defect or inconsistency in the Indenture or the Notes, including to eliminate any conflict with the Trust
Indenture Act, so long as such action will not materially adversely affect the interests of Holders;
(g) to
make any change that does not adversely affect the rights of any Holder;
(h) to
provide for a successor Trustee;
(i) to
comply with the Applicable Procedures; or
(j) to
comply with any requirement of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act.
Section 7.02 Supplemental
Indentures with Consent of Holders. Section 9.02 of the Base Indenture shall not apply
with respect to the Notes. Instead, this Section 7.02 shall, solely with respect to the Notes, replace Section 9.02 of the
Base Indenture in its entirety.
With the consent of the Holders
of a majority in aggregate principal amount of the Outstanding Notes, including without limitation, consents obtained in connection with
a repurchase of, or tender or exchange offer for, Notes and by act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture applicable to the Notes or of
modifying in any manner the rights of the Holders under the Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note:
(a) reduce
the percentage in aggregate principal amount of Notes Outstanding necessary to waive any past Default or Event of Default;
(b) reduce
the rate of interest on any Note or change the time for payment of interest on any Note;
(c) reduce
the principal of any Note or the amount payable upon Optional Redemption of any Note or change the Maturity Date;
(d) change
the place or currency of payment on any Note;
(e) reduce
the Change of Control Payment of any Note or amend or modify in any manner adverse to the rights of the Holders the Company’s obligation
to pay the Change of Control Payment, whether through an amendment or waiver of provisions in the covenants, definitions related thereto
or otherwise;
(f) impair
the right of any Holder of Notes to receive payment of principal of (including the Change of Control Payment and the Redemption Price,
if applicable), and interest, if any, on, its Notes, or to institute suit for the enforcement of any such payment with respect to such
Holder’s Notes;
(g) modify
the ranking of the Notes in a manner that is adverse to the rights of the Holders; or
(h) make
any change to the provisions of this Section 7.02 that requires each Holder’s consent or to the provisions of Section 5.04
of this Supplemental Indenture if such change is adverse to the rights of Holders.
It shall not be necessary
for any act or consent of Holders under this Section 7.02 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such act or consent shall approve the substance thereof. The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Persons entitled to consent to any indenture 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
supplemental indenture, 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 ninety (90) days after such
record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further
effect.
Section 7.03 Notice
of Amendment or Supplement. After an amendment or supplement under this Article VII becomes
effective, the Company shall mail to the Holders a notice briefly describing such amendment or supplement. However, the failure to give
such notice to all the Holders, or any defect in the notice, shall not impair or affect the validity of the amendment or supplement.
ARTICLE VIII
SUCCESSOR COMPANY
Section 8.01 Consolidation,
Merger and Sale of Assets. Article V of the Base Indenture shall not apply with respect
to the Notes. Instead, this Article VIII shall, solely with respect to the Notes, replace Article V of the Base Indenture in
its entirety.
Section 8.02 Company
May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 8.04,
the Company shall not amalgamate or consolidate with, merge with or into or convey, transfer or lease its properties and assets substantially
as an entirety to another Person, unless:
(a) the
Company shall be the surviving Person or the resulting, surviving or transferee Person (the “Successor Company”),
if not the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or
the District of Columbia, and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Notes and the Indenture
as applicable to the Notes; and
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under the Indenture.
Section 8.03 Successor
Corporation to Be Substituted. In case of any such amalgamation, consolidation, merger, conveyance,
transfer or lease and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the principal of (including any Change of Control Payment
or Redemption Price), accrued and unpaid interest, if any, on all of the Notes and the due and punctual performance of all of the covenants
and conditions of the Indenture applicable to the Notes to be performed by the Company under the Indenture, such Successor Company shall
succeed to and be substituted for, and may exercise every right and power of, the Company under the Indenture, with the same effect as
if it had been named herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company any or all of the Notes issuable under the Indenture which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject
to all the terms, conditions and limitations in the Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause
to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of the Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such amalgamation, consolidation, merger, conveyance or transfer (but not in the case of
a lease), the Person named as the “Company” in the first paragraph of the Indenture or any successor that shall thereafter
have become such in the manner prescribed in this Article VIII may be dissolved, wound up and liquidated at any time thereafter
and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its
obligations under the Indenture.
In case of any such amalgamation,
consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
Section 8.04 Opinion
of Counsel to Be Given to Trustee. In the case of any such amalgamation, merger, consolidation,
conveyance, transfer or lease, the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel stating that any such
amalgamation, consolidation, merger, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, complies with the provisions of this Article VIII.
ARTICLE IX
MISCELLAEOUS
Section 9.01 Effect
on Successors and Assigns. All agreements of the Company, the Trustee, the Registrar and the
Paying Agent in the Indenture and the Notes will bind their respective successors.
Section 9.02 Governing
Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE
AND THE SECURITIES, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B).
Section 9.03 No
Security Interest Created. Nothing in the Indenture or in the Notes, expressed or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect, in any jurisdiction.
Section 9.04 Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such Act to be a part of and govern the Indenture, the latter provision shall control. If
any provision of the Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to the Indenture as so modified or to be excluded, as the case may be.
Section 9.05 Benefits
of Supplemental Indenture. Nothing in this Supplemental Indenture or in the Notes, expressed
or implied, will give to any Person, other than the parties hereto, any Paying Agent, any Registrar or their successors hereunder
or the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 9.06 Calculations.
Except as otherwise provided in the Indenture, the Company shall be responsible for making all calculations called for under the
Notes. These calculations include, but are not limited to, determinations of accrued interest payable on the Notes. The Company shall
make all calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders
of Notes. The Company shall provide a schedule of its calculations to each of the Trustee, and the Trustee may rely conclusively upon
the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations
as provided to the Trustee to any Holder upon the written request of that Holder at the sole cost and expense of the Company.
Section 9.07 Execution
in Counterparts. This Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 9.08 Notices.
The Company or the Trustee, by notice given to the other in the manner provided in Section 12.03 of the Base Indenture, may
designate additional or different addresses for subsequent notices or communications.
Notwithstanding anything to the contrary in Section 12.03
of the Base Indenture, whenever the Company is required to deliver notice to the Holders, the Company will, by the date it is required
to deliver such notice to the Holders, deliver a copy of such notice to the Trustee, the Paying Agent and the Registrar. Each notice to
the Trustee, the Paying Agent and the Registrar shall be sufficiently given if in writing and mailed, first-class postage prepaid to the
address most recently designated by the Trustee, the Paying Agent and the Registrar, as the case may be, to the Company.
The Trustee agrees to accept
and act upon instructions or directions from the Company pursuant to the Indenture sent by unsecured e-mail, pdf, facsimile transmission
or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons,
which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company
elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion
elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee
shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions
and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk
of interception and misuse by third parties.
Section 9.09 Ratification
of Base Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner
and to the extent herein provided. For the avoidance of doubt, each of the Company and each Holder of Notes, by its acceptance of such
Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities and benefits afforded to the Trustee under
the Base Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee hereunder, in each of its capacities
hereunder as if set forth herein in full.
Section 9.10 No
Recourse Against Others. No recourse for the payment of the principal of, premium, if
any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or in any of the Notes or because of the creation of any indebtedness
represented thereby, shall be had against any entity other than the Company (including, without limitation, (1) the Operating Partnership
or any other Subsidiary of the Company unless the same is then a Note Guarantor or (2) the Manager) or any director, officer, employee,
incorporator, stockholder, partner or other equity owner, or controlling person of the Company, the Operating Partnership or any other
Subsidiary of the Company or the Manager or of any successor person thereof. Each Holder, by accepting a Note, waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 9.11 The
Trustee. The recitals in this Supplemental Indenture are made by the Company only and not by
the Trustee, and all of the provisions contained in the Base Indenture in respect of the rights, privileges, immunities, powers
and duties of the Trustee shall be applicable in respect of the Notes and of this Supplemental Indenture as fully and with like effect
as set forth in full herein.
Section 9.12 Submission
to Jurisdiction. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE AND THE SECURITIES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
Section 9.13 Applicable
Tax Law. In order to enable the Trustee to comply with its obligations under applicable tax
laws, rules and regulations (including directives, guidelines and interpretations promulgated by competent authorities) in effect
from time to time (“Applicable Tax Law”), the Company agrees (i) to provide to the Trustee, following written
request from the Trustee delivered to the Company in accordance with Section 9.08 hereof, such information concerning the Holders
of the Notes as the Trustee may reasonably request in order to determine whether the Trustee has any tax-related obligations under Applicable
Tax Law with respect to the payments made to Holders of the Notes under the Indenture, but only to the extent (a) such information
is in the Company’s possession, (b) such information is not subject to any confidentiality or similar agreement or undertaking
or otherwise deemed by the Company to be confidential and (c) providing such information to the Trustee does not, in the judgment
of the Company, breach or violate or constitute a default under any applicable law, rules or regulations or any instrument or agreement
to which the Company or any of its Subsidiaries is a party or by which any of them is bound, and (ii) that the Trustee shall be
entitled to make any withholding or deduction from payments made to Holders of Notes under the Indenture to the extent necessary to comply
with the Trustee’s obligations under Applicable Tax Law. Each Holder of Notes by accepting a Note shall be deemed to have agreed
to the foregoing provisions of this Section 9.13 and to provide to the Trustee or the Company such information concerning such Holder
as the Trustee or the Company may reasonably request in order to determine whether the Trustee or the Company has any tax-related obligations
under Applicable Tax Law with respect to the payments made to such Holder under the Indenture; and such agreement by each Holder is part
of the consideration for the issuance of the Notes.
[Remainder of the page intentionally left
blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.
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READY
CAPITAL CORPORATION |
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By: | /s/
Andrew Ahlborn |
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| Name: |
Andrew
Ahlborn |
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| Title: |
Chief
Financial Officer |
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|
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U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
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By: | /s/
Benjamin J. Krueger |
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| Name: |
Benjamin
J. Krueger |
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| Title: |
Vice
President |
EXHIBIT A
[Form of Face of Security]
[For Global Securities, include the following
legend:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
[Add the following if the Depositary is DTC:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Add the following if the Security is
being issued with original issue discount: THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO TREASURY REGULATION SECTION 1.1275-3.
THIS SECURITY WAS ISSUED WITH ‘ORIGINAL ISSUE DISCOUNT’ WITHIN THE MEANING OF SECTION 1272, ET SEQ. OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED. UPON WRITTEN REQUEST, THE COMPANY WILL PROVIDE TO ANY HOLDER OF THE SECURITY (1) THE ISSUE PRICE AND ISSUE
DATE OF THE SECURITY, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE SECURITY, AND (3) THE ORIGINAL YIELD TO MATURITY OF THE
SECURITY. SUCH REQUEST SHOULD BE SENT TO THE ISSUER AT 1251 AVENUE OF THE AMERICAS, 50TH FLOOR, NEW YORK, NEW YORK 10020, ATTENTION: ANDREW
AHLBORN. ]]
No.: [ ]
CUSIP: 75574U AD3
ISIN: US75574UAD37
Principal Amount: $[ ]
[as revised by the Schedule of Increases
and Decreases of Global Security attached hereto](1)
Ready
Capital Corporation
7.375% SENIOR NOTES DUE 2027
Ready Capital Corporation,
a Maryland corporation, promises to pay to [ ] [include “Cede & Co.” for Global Security] or registered assigns,
the principal amount [of [ ] Dollars] [set forth on the Schedule of Increases or Decreases of Global Security attached hereto (as the
same may be revised from time to time)](2) on July 31, 2027 (the “Maturity Date”) unless this Security is
previously redeemed or repurchased in whole.
Additional provisions of this
Security are set forth on the other side of this Security.
(1) Include for Global Securities
only.
(2) Include for Global Securities
only.
IN WITNESS WHEREOF, READY
CAPITAL CORPORATION has caused this instrument to be duly signed.
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READY
CAPITAL CORPORATION |
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By: | |
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| Name: |
|
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| Title: |
|
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National
Association, as Trustee, certifies that this is one of the Securities referred to in the within-mentioned Indenture.
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U.S. BANK TRUST
COMPANY, |
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NATIONAL ASSOCIATION, |
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as Trustee |
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By: | |
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| Name: |
|
| |
| Title: |
|
[FORM OF
REVERSE OF SECURITY]
Ready Capital Corporation
7.375% SENIOR NOTES DUE 2027
This Security is one of a
duly authorized issue of securities of the Company, designated the Company’s “7.375% Senior Notes due 2027” (the “Securities”),
issued under an Indenture dated as of August 9, 2017, as supplemented by the Third Supplemental Indenture thereto, dated as of February 26,
2019 (as so supplemented, the “Base Indenture”), and as further supplemented by the Eighth Supplemental Indenture thereto,
dated as of July 25, 2022 (the “Supplemental Indenture” and the Base Indenture, as supplemented by the Supplemental
Indenture, the “Indenture”), each by and between the Company and U.S. Bank Trust Company, National Association, as
trustee (the “Trustee”), and reference is hereby made to the Indenture for a 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. Capitalized terms used but not defined herein shall have the meanings
set forth in the Indenture.
The Company promises to pay
interest on the principal amount of this Security at a rate of 7.375% per annum (such rate subject to adjustment as set forth in Section 2.04(d) of
the Supplemental Indenture) until July 31, 2027 or such earlier date on which the principal of this Security shall have been paid
or duly provided for. Interest on this Security will accrue from the most recent date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for, from and including July 25, 2022. The Company will pay interest semi-annually
in arrears on each January 31 and July 31 (each an “Interest Payment Date”), commencing January 31,
2023 to the Holder of this Security as of the Close of Business on the Regular Record Date immediately preceding the applicable Interest
Payment Date. Interest shall be computed on the basis of a three hundred and sixty (360)-day year comprised of twelve thirty (30)-day
months.
As provided in and subject
to the provisions of the Indenture, prior to July 31, 2025 (24 months prior to the Maturity Date) (the “Make Whole Date”),
the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time at a redemption price (expressed
as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum
of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming
the Notes matured on the Make Whole Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Notes
Treasury Rate plus 50 basis points, less (b) interest accrued to (but not including) the redemption date, and
(2) 100% of the principal
amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to (but not including) the redemption date
of the Notes.
On or after the Make Whole
Date and prior to July 31, 2026 (12 months prior to the Maturity Date), the Company may redeem the Notes, in whole or in part, at
any time and from time to time, at a redemption price equal to 103.688% of the principal amount of the Notes being redeemed plus accrued
and unpaid interest thereon to (but not including) the redemption date.
On or after the July 31,
2026 and prior to the Maturity Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption
price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to (but not including)
the redemption date.
As provided in and subject
to the provisions of the Indenture, upon the occurrence of a Change of Control Repurchase Event, the Company will make an offer purchase
this Security, or any portion of this Security such that the principal amount of this Security that is not purchased equals $2,000 or
an integral multiple of $1,000 in excess thereof, on the Change of Control Payment Date at a price equal to the Change of Control Payment
for such Change of Control Payment Date.
As provided in and subject
to the provisions of the Indenture, the Company will pay the principal of, the Change of Control Payment for, and the Redemption Price
for, with respect to, this Security to the Holder hereof in cash at the designated office of the Paying Agent on the relevant payment
date (or, if this Security is a Global Security, by wire transfer of immediately available funds on the relevant payment date in accordance
with Applicable Procedures). The Company will pay interest amounts on the Securities as provided in the Indenture. The Company will pay
all amounts in respect of the Securities in money of the United States that at the time of payment is legal tender for payment of public
and private debts.
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 to be affected under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders
of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults or Event of Defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder 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.
Subject to certain conditions,
the Company at any time may terminate some of or all its obligations under the Securities and the Indenture if the Company deposits with
the Trustee certain amounts of cash in U.S. Dollars, Government Obligations or a combination of both for the payment of principal, premium,
if any, and interest on the Securities.
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 (1) such Holder or Holders
of not less than 25% in aggregate principal amount of the Securities at the time Outstanding shall have previously given the Trustee written
notice of a continuing Event of Default with respect to the Securities, (2) such Holder or Holders shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or security satisfactory
to the Trustee, (3) the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities
at the time Outstanding a written direction inconsistent with such request within sixty (60) days, and (4) the Trustee shall have
failed to institute any such proceeding within sixty (60) days after receipt of such notice, request and offer of indemnity or security.
The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof
(including the Change of Control Payment or the Redemption Price) 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 or deliver, as the case may be, the principal of (including the Change of Control Payment or the Redemption
Price) and interest on this Security at the time, place and rate, and in the coin and currency, herein prescribed.
As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of this Security is registrable in the 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 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 Registrar duly executed by, the Holder hereof or its 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 are issuable
only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth, each Security is exchangeable for one or more Securities of like tenor
and of authorized denominations with an aggregate principal amount equal to the principal amount of the Security to be exchanged, as requested
by the Holder surrendering same.
Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any agent of the Company or Trustee may treat the Person in whose
name the Security is registered as the absolute 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.
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 payable in connection therewith.
All defined terms used in
this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture. If any provision of this Security
limits, qualifies or conflicts with a provision of the Indenture, such provision of this Security shall control.
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Security, shall be construed as though they were written out in full
| TEN COM | |
Tenants in common |
| TEN ENT | |
Tenants by the entireties |
| JT TEN | |
Tenants with right of Survivorship and not as tenants in common |
| CUST | |
Custodian |
| U/G/M/A | |
Uniform Gift to Minors Act |
Additional abbreviations may
also be used though not in the above list.
ANNEX
A
[Include for Global Security]
SCHEDULE
OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial principal amount of Global Security:
| ` |
|
Amount of
Increase in
principal amount
of Global Security |
|
Amount of
Decrease in
principal amount
of Global Security |
|
Principal amount
of Global Security
after Increase or
Decrease |
|
Notation by
Security Registrar
or Custodian |
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ATTACHMENT
1
Form of Assignment and Transfer
For value received [ ] hereby
sell(s), assign(s) and transfer(s) unto [ ] (Please insert social security or Taxpayer Identification Number of assignee) the
within Security, and hereby irrevocably constitutes and appoints [ ] to [ ] transfer the said Security on the books of the Company, with
full power of substitution in the premises.
| |
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Signature(s) |
| |
|
| |
Signature(s) must be guaranteed by an institution
which is a member of one of the following recognized signature Guarantee Programs: |
| |
|
| |
(a) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The
Stock Exchange Medallion Program (SEMP); or (iv) another guarantee program |
