Exhibit 1.1
NATIONSTAR MORTGAGE LLC
NATIONSTAR CAPITAL CORPORATION
6.500% Senior Notes due 2022
UNDERWRITING AGREEMENT
May 29, 2013
CREDIT SUISSE SECURITIES (USA) LLC
MERRILL
LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BARCLAYS CAPITAL INC.
WELLS FARGO SECURITIES, LLC
J.P. MORGAN SECURITIES LLC
As
Representatives of the several Underwriters named in Schedule A hereto
c/o CREDIT SUISSE SECURITIES (USA) LLC
Eleven Madison Avenue
New York, NY
10010–3629
Ladies and Gentlemen:
Introductory.
Nationstar Mortgage LLC, a Delaware limited liability company (“
Nationstar
”), and Nationstar Capital Corporation, a Delaware corporation (“
Nationstar
Corp.
” and, together with Nationstar, the “
Companies
”), propose to issue and sell to the several underwriters named in Schedule A (the “
Underwriters
”), acting severally and not jointly, the respective
amounts set forth in such Schedule A of $300,000,000 aggregate principal amount of the Companies’ 6.500% Senior Notes due 2022 (the “
Notes
”). Credit Suisse Securities (USA) LLC (“
Credit Suisse
”), Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., Wells Fargo Securities, LLC and J.P. Morgan Securities LLC have agreed to act as representatives of the several Underwriters (in such capacity, the
“
Representatives
”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant
to an indenture, to be dated as of the Closing Date (as defined in Section 2 below) (the “
Indenture
”), by and among the Companies, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the
“
Trustee
”). The Companies’ obligations under the Notes, including the due and punctual payment of interest on the Notes, will be irrevocably and unconditionally guaranteed (the “
Guarantees
”) by the
guarantors listed in Schedule B hereto (collectively, the “
Guarantors
”). As used herein, the term “Notes” shall include the Guarantees, unless the context otherwise
requires. The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “
Depositary
”), pursuant to a Letter of Representations, to be dated on or before the Closing
Date (the “
DTC Agreement
”), among the Companies, the Guarantors, the Trustee and the Depositary.
The
Companies and the Guarantors, including Nationstar Mortgage Holdings Inc., a Delaware corporation (the “
NMHI
”), have prepared and filed with the Securities and Exchange Commission (the “
Commission
”) a registration
statement on Form S-3 (File No. 333-188872), which contains a base prospectus (the “
Base Prospectus
”), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of
NMHI, under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Securities Act
”), and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the
time of effectiveness pursuant to Rule 430B under the Securities Act, is called the “
Registration Statement
.” The term “
Prospectus
” shall mean the final prospectus supplement relating to the Notes, together
with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed (the “
Execution Time
”) by the parties hereto. The term “
Preliminary Prospectus
”
shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to 4:12 p.m. on May 29,
2013 (the “
Initial Sale Time
”). All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”).
All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “
Exchange Act
”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
The Companies hereby confirm their engagement of Credit Suisse as, and Credit Suisse hereby confirms its agreement with the Companies to
render services as, the “qualified independent underwriter,” within the meaning of Rule 5121(f)(12) of the Financial Industry
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Regulatory Authority (“
FINRA
”) with respect to the offering and sale of the Notes. Credit Suisse, solely in its capacity as the qualified independent underwriter and not
otherwise, is referred to herein as the Qualified Independent Underwriter (“
QIU
”). Each of the Companies and the Guarantors hereby confirms its agreements with the Underwriters as follows:
S
ECTION
1. Representations and Warranties of the Companies and the Guarantors
Each of the Companies and the Guarantors, jointly and severally, hereby represents, warrants and covenants to each Underwriter as of the
date hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a “
Representation Date
”), as follows:
a)
Compliance with Registration Requirements.
Each of the Companies and the Guarantors meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has
become effective under the Securities Act and 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 best
of the Companies’ and the Guarantors’ knowledge, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture Act
”).
At the respective times the Registration Statement and any post-effective amendments thereto (including the filing with the Commission of NMHI’s Annual Report on Form 10-K for the year ended
2012 (the “
Annual Report on Form 10-K
”)) became effective and at each Representation Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements
of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any 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. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Companies in writing by any of the
Underwriters through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in
Section 8(f) hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC, complied
in all material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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b)
Disclosure Package.
The term “
Disclosure Package
” shall mean
(i) the Preliminary Prospectus dated May 29, 2013, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “
Issuer Free Writing Prospectus
”), if any, identified in Annex I
hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Companies by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(f) hereof.
c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the time
they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with the other information in the Disclosure Package, at the Initial
Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
d)
NMHI is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time any of the Companies, the Guarantors or any person acting on
their behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time,
NMHI was and is a “well known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, that
automatically became effective not more than three years prior to the Execution Time; none of NMHI, the Companies or the Guarantors has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of
the automatic shelf registration statement form and NMHI, the Companies and the Guarantors have not otherwise ceased to be eligible to use the automatic shelf registration form.
e)
Companies and Guarantors are not Ineligible Issuers
. (i) At the time of filing the Registration Statement and (ii) as
of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Companies and the Guarantors were not and are not Ineligible Issuers (as defined in Rule 405 of the Securities Act), without taking
account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Companies and the Guarantors be considered Ineligible Issuers.
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f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the offering of Notes under this Agreement or until any earlier date that the Companies notified or notify the Representatives as described in the next sentence, did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus the Companies have promptly notified or will promptly notify the Representatives and have promptly amended or supplemented or will promptly amend or supplement, at their own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Companies by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(f) hereof.
g)
Distribution of Offering Material By the Company and the Guarantors.
The Companies and the Guarantors have not
distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the
Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I hereto or any electronic road show or other written communications
reviewed and consented to by the Representatives and listed on Annex II hereto (each a, “
Company Additional Written Communication
”). Each such Company Additional Written Communication, when taken together with the Disclosure
Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from the Company Additional Written Communication based upon and in conformity with written information furnished to the Companies by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(f) hereof.
h)
No Applicable Registration or Other Similar Rights.
There are no persons with registration or other similar rights
to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived and other than pursuant to each of the
registration rights agreements, dated as of April 25, 2012 and July 24, 2012, respectively, entered into in connection with the issuances of the Companies’ outstanding 9.625% Senior Notes due 2019, each of the registration rights
agreements, dated as of September 24, 2012 and September 28, 2012, respectively, entered into in connection with the issuances of the Companies’ outstanding 7.875% Senior Notes due 2020, each of the registration rights agreement,
dated as of February 7, 2013, and March 26, 2013, respectively, entered into in connection with the issuance of the Companies’ 6.500% Senior Notes due 2021 and the Stockholders Agreement by and among NMHI and FIF HE Holdings LLC,
dated as of February 17, 2012.
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i)
The Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by each of the Companies and the Guarantors.
j)
Authorization of the Indenture
. The Companies and each
Guarantor have all requisite corporate, limited partnership or limited liability company power and authority, as applicable, to execute, deliver and perform their obligations under the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Companies and the Guarantors and upon its execution and delivery, assuming due authorization, execution and delivery by the Trustee, will constitute a valid and binding agreement of the Companies and
the Guarantors, enforceable against the Companies and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles.
k)
Authorization of the
Notes.
The Companies have all requisite corporate or limited liability company power and authority, as applicable, to execute, issue, sell and perform their obligations under the Notes. The Notes to be purchased by the Underwriters from the
Companies are in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Companies and, when authenticated in
the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Companies, enforceable in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the
Indenture.
l)
Authorization of the Guarantees.
Each Guarantor has all requisite corporate, limited partnership or
limited liability company power and authority, as applicable, to execute, issue and perform its obligations under the Guarantees. The Guarantees will be in the form contemplated by the Indenture, have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing Date, when the Indenture is duly executed and delivered by the Guarantors in accordance with its terms and, upon the due execution, authentication and delivery of the Notes in
accordance with the Indenture and the issuance and sale of the Notes to the Underwriters pursuant to this Agreement, will constitute valid and binding obligations of the Guarantors, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be
entitled to the benefits of the Indenture.
m)
Description of the Notes, the Guarantees and the Indenture.
The Notes,
the Guarantees and the Indenture will conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
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n)
Accuracy of Statements.
The statements in each of the Disclosure Package and the
Prospectus under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Notes and the Guarantees and under the captions “Certain U.S. Federal Income Tax Considerations,”
“Management’s Discussion and Analysis of Financial Condition and Results of Operations—Description of Certain Indebtedness,” which is incorporated by reference therein, and “Plan of Distribution,” insofar as they
purport to summarize the provisions of the laws and documents referred to therein, are accurate summaries in all material respects.
o)
Accuracy of Statements in Risk Factors
. The statements made in the Annual Report on Form 10-K incorporated by reference into the Disclosure Package and the Prospectus under the captions
“Risk Factors—Our foreclosure proceedings in certain states have been delayed due to inquiries by certain state Attorneys General, court administrators and state and federal government agencies, the outcome of which could have a negative
effect on our operations, earnings or liquidity” (which includes the disclosure, “Upon completion of our internal review and after responding to such inquiries, we resumed these previously delayed proceedings.”), “Risk
Factors—The ongoing implementation of the Dodd-Frank Act will increase our regulatory compliance burden and associated costs and place restrictions on certain originations and servicing operations, all of which could adversely affect our
business, financial condition and results of operations,” “Risk Factors—The enforcement consent orders by, agreements with, and settlements of, certain federal and state agencies against the largest mortgage servicers related to
foreclosure practices could impose additional compliance costs on our servicing business, which could materially and adversely affect our financial condition and results of operations,” “Risk Factors—Federal, state and local laws and
regulations could materially adversely affect our business, financial condition and results of operations,” “Risk Factors—Our business would be adversely affected if we lose our licenses,” “Risk Factors—The
conservatorship of Fannie Mae and Freddie Mac and related efforts, along with any changes in laws and regulations affecting the relationship between Fannie Mae and Freddie Mac and the U.S. federal government, could adversely affect our business and
prospects” and “Risk Factors—Changes to government mortgage modification programs could adversely affect future incremental revenues,” insofar as they purport to constitute summaries of the terms of statutes, rules or
regulations, legal or governmental proceedings or contracts and other documents, constitute accurate summaries of the terms of such statutes, rules and regulations, legal and governmental proceedings and contracts and other documents in all material
respects.
p)
No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package, subsequent to the
respective dates as of which information is given in the Disclosure Package, (i) neither the Company, the Guarantors nor any of their respective subsidiaries has sustained any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree and (ii) there has been no material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise, or in the earnings, management, business, properties, results of operations or prospects, whether or not arising from transactions in the ordinary course of business, of
the Company, the Guarantors and their respective subsidiaries, considered as one entity (any such change is called a “
Material Adverse Change
”).
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q)
Independent Accountants.
Ernst & Young, LLP, who have expressed their
opinion with respect to NMHI’s and its subsidiaries’ audited financial statements for the fiscal years ended 2012, 2011 and 2010 incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are
independent public accountants with respect to NMHI and its subsidiaries, including the Companies, as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting
Oversight Board.
r)
Preparation of the Financial Statements.
The financial statements together with the related notes
thereto incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of NMHI and its subsidiaries, including the Companies, as of
and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements comply as to form with the accounting requirements of the Securities Act and have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements are required to be
included in the Registration Statement. The selected financial data and the summary financial information included in the Preliminary Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus.
s)
Incorporation and Good Standing of the Companies, the Guarantors and Their Respective Subsidiaries.
Each of the Companies, the Guarantors and their respective subsidiaries has been duly
organized, is validly existing and in good standing as a limited liability company, limited partnership, corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good
standing as a foreign limited liability company, limited partnership, corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where
the failure to be so qualified or in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, members’ or stockholders’ equity,
properties, business or prospects of the Companies, the Guarantors and their respective subsidiaries taken as a whole (a “
Material Adverse Effect
”). Each of the Companies, the Guarantors and their respective subsidiaries has all
power and authority necessary to own, hold or lease its properties and to conduct the businesses in which it is engaged as described in the Disclosure Package and the Prospectus.
t)
Subsidiaries.
The Companies do not own or control, directly or indirectly, any corporation, association or other entity other
than Nationstar’s ownership of Nationstar Corp. and the subsidiaries listed on Schedule C hereto. Nationstar Corp. has no subsidiaries. None of the subsidiaries of Nationstar is a “significant subsidiary” (as defined in Rule 405 under
the Securities Act).
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u)
Capitalization and Other Capital Stock Matters.
Nationstar has an authorized
capitalization as set forth in each of the Disclosure Package and the Prospectus, and all of the membership interests of Nationstar have been duly authorized and validly issued and are fully paid and non-assessable. All of the issued shares of
capital stock or other equity interests of Nationstar Corp. and each other subsidiary of Nationstar have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by Nationstar, free and clear of
all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
v)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
Neither the Companies, the
Guarantors nor any of their respective subsidiaries (i) is in violation of its charter, certificate of formation, bylaws, limited partnership agreement or limited liability company agreement (or similar organizational documents), (ii) is
in default, and no event has occurred that, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of
trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject, or (iii) is in violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The
execution and delivery of this Agreement did not, and the issue and sale of the Notes and the Guarantees, the execution, delivery and performance by the Companies and the Guarantors of the Notes, the Guarantees, and the Indenture, the performance by
the Companies and the Guarantors of the Indenture, the application of the proceeds from the sale of the Notes as described under “Use of Proceeds” in each of the Disclosure Package and the Prospectus and the consummation of the
transactions contemplated hereby and thereby, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Companies, the
Guarantors or their respective subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Companies, the Guarantors or any of their respective
subsidiaries is a party or by which the Companies, the Guarantors or any of their respective subsidiaries is bound or to which any of the property or assets of the Companies, the Guarantors or any of their respective subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Companies, the Guarantors or any of their respective subsidiaries, or (iii) result in any violation of any statute or any
judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Companies, the Guarantors or any of their respective subsidiaries or any of their properties or assets, except, with respect to
clauses (i) and (iii), conflicts or violations that would not reasonably be expected to have a Material Adverse Effect. No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental
agency or body having jurisdiction over the Companies, the Guarantors or any of their respective subsidiaries or any of their properties or assets is required for the issue and sale of the Notes and the Guarantees, the execution, delivery and
performance by the Companies and the Guarantors of the Notes, the Guarantees, the Indenture, and this Agreement, the application of the proceeds from the sale of the Notes as
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described under “Use of Proceeds” in each of the Disclosure Package and the Prospectus and the consummation of the transactions contemplated hereby and thereby, except for such
consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under state securities or Blue Sky laws or with FINRA in connection with the purchase and distribution of the Notes by the Underwriters, each of
which has been obtained and is in full force and effect except for such consents, approvals, authorizations or orders that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
w)
No Material Actions or Proceedings.
Except as disclosed in the Disclosure Package and the Prospectus, there are no legal or
governmental proceedings pending to which the Companies, the Guarantors or any of their respective subsidiaries is a party or of which any property or assets of the Companies, the Guarantors or any of their respective subsidiaries is the subject
that could, in the aggregate, reasonably be expected to have a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a material adverse effect on the performance by the Companies and the Guarantors of their obligations
under this Agreement, the Indenture or the Notes or the consummation of any of the transactions contemplated hereby. To the Companies’ and each Guarantors’ knowledge, no such proceedings are threatened by governmental authorities or
others.
x)
Labor Matters.
Except as disclosed in the Disclosure Package and the Prospectus, no labor disturbance by or
dispute with the employees of the Companies, the Guarantors or any of their respective subsidiaries exists or, to the knowledge of any Company or any Guarantor, is imminent that could reasonably be expected to have a Material Adverse Effect.
y)
Intellectual Property Rights.
Except as set forth in the Disclosure Package and the Prospectus, the Companies, the
Guarantors and each of their respective subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
know-how, software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses and have no reason
to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others, except for such rights or conflicts that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
z)
All Necessary Permits, etc.
The Companies, the Guarantors
and each of their respective subsidiaries have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“
Permits
”) as are necessary under
applicable law to own their properties and conduct their businesses in the manner described in the Disclosure Package and the Prospectus, except for any of the foregoing that could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect or except as described in the Disclosure Package and the Prospectus. The Companies, the Guarantors and each of their respective subsidiaries have fulfilled and performed all of their obligations with respect to the Permits, and no
event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not
reasonably be expected to have a Material Adverse Effect or except as described in the
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Disclosure Package and the Prospectus. Neither the Companies, the Guarantors nor any of their respective subsidiaries has received notice of any revocation or modification of any such Permits or
has reason to believe that any such Permits will not be renewed in the ordinary course, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect.
aa)
Title to Properties.
The Companies, the Guarantors and each of their respective subsidiaries has good and marketable title in
fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects, except such liens, encumbrances and defects as are described in the Disclosure
Package and the Prospectus and such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Companies, the Guarantors or any of their respective subsidiaries. All
assets held under lease by the Companies, the Guarantors or any of their respective subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as do not interfere with the use made and proposed to be made of
such assets by the Companies, the Guarantors or any of their respective subsidiaries, except where the invalidity or unenforceability of any such lease could not, in the aggregate, be reasonably expected to have a Material Adverse Effect. Nationstar
Corp. has no assets other than any payment received from Nationstar for its capital stock.
bb)
Tax Law Compliance.
The
Companies, the Guarantors and each of their respective subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due, and no tax
deficiency has been determined adversely to the Companies, the Guarantors or any of their respective subsidiaries, nor does any Company or any Guarantor have any knowledge of any tax deficiencies that have been, or could reasonably be expected to be
asserted against the Companies, the Guarantors and each of their respective subsidiaries, except any of the foregoing, which could not, in the aggregate, reasonably be expected to have a Material Adverse Effect, or except as contested in good faith
and as to which appropriate reserves are provided.
cc)
Not Investment Companies.
Neither the Companies, the Guarantors
nor any of their respective subsidiaries is, nor immediately after giving effect to the offer and sale of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Disclosure Package and
the Prospectus will be, required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
dd)
Insurance.
The Companies, the Guarantors and each of their respective subsidiaries carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and covering such risks as management believes is adequate in all material respects for the conduct of their respective businesses and the value of their respective properties. All
policies of insurance of the Companies, the Guarantors and their respective subsidiaries are in full force and effect; the Companies, the Guarantors and each of their respective subsidiaries are in compliance with the terms of such policies in all
material respects; and neither the Companies, the Guarantors nor any of their respective subsidiaries has received notice from any insurer or agent of such insurer that material capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance. Neither the Companies, the Guarantors nor any such subsidiary has any reason to believe that it will not
11
be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
could not reasonably be expected to have a Material Adverse Effect.
ee)
No Price Stabilization or Manipulation.
The
Companies, the Guarantors and their respective affiliates have not taken and will not take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Companies or the Guarantors in connection with the offering of the Notes.
ff)
No Unlawful Contributions or Other Payments.
None of the Companies, the Guarantors nor any of their respective subsidiaries,
nor, to the knowledge of the Companies and the Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Companies, the Guarantors or any of their respective subsidiaries, has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
gg)
No Conflict with Money Laundering Laws.
The operations of the Companies, the Guarantors and their respective subsidiaries are
and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “
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 Companies, the Guarantors or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Companies or the Guarantors, threatened.
hh)
No Conflict with OFAC Laws.
Neither the Companies, the Guarantors nor any
of their respective subsidiaries nor, to the knowledge of the Companies or the Guarantors, any director, officer, agent or employee of the Companies, the Guarantors or any of their respective subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“
OFAC
”); and the Companies will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
ii)
Compliance with Environmental Laws.
Except as otherwise disclosed in the Disclosure Package and the Prospectus, (i) there
are no proceedings that are pending, or known to be contemplated, against the Companies, the Guarantors or any of their respective subsidiaries under any laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal
requirements of any governmental authority, including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating to pollution, the
12
protection of human health or safety, the environment, or natural resources, or to use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants (“
Environmental Laws
”) in which a governmental authority is also a party, (ii) the Companies, the Guarantors and their respective subsidiaries are not aware of any issues
regarding compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants and
(iii) none of the Companies, the Guarantors and their respective subsidiaries anticipates capital expenditures relating to Environmental Laws, except to the extent any such proceedings, compliance issues or capital expenditures could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
jj)
ERISA Compliance.
Except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, (i) each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended
(“
ERISA
”)) for which Nationstar or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “
Code
”)) would have any liability (each a “
Plan
”) has been maintained in all material respects in compliance with its terms and with the requirements of all applicable statutes, rules
and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur,
(B) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the fair market value of the
assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither Nationstar or any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,” within the
meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
kk)
Dividends and Other Distributions
. Except as permitted under the Indenture, no subsidiary
of Nationstar is currently prohibited, directly or indirectly, from paying any dividends to Nationstar, from making any other distribution on such subsidiary’s capital stock, from repaying to Nationstar any loans or advances to such subsidiary
from Nationstar or from transferring any of such subsidiary’s property or assets to Nationstar or any other subsidiary of Nationstar, except as described in the Disclosure Package and the Prospectus.
ll)
Statistical and Market-Related Data
. The statistical and market-related data included in the Disclosure Package and the
Prospectus and the consolidated financial statements of NMHI and its subsidiaries and Nationstar and its subsidiaries included in the Disclosure Package and the Prospectus are based on or derived from sources that NMHI believes to be reliable in all
material respects.
13
mm)
Internal Controls and Procedures.
NMHI and each of its subsidiaries maintains
internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles
in the United States. As of and since the date of the most recent balance sheet of NMHI and its consolidated subsidiaries reviewed or audited by Ernst & Young, LLP and the board of directors of NMHI, NMHI has not been advised of or become
aware of (A) any significant deficiencies in the design or operation of internal controls, except for such significant deficiencies that (i) would not, individually or in the aggregate, reasonably be expected to materially adversely affect
the ability of NMHI or any of its subsidiaries to record, process, summarize and report financial data and (ii) have been disclosed to the Audit Committee of the Board of Directors of NMHI, (B) any material weaknesses in internal controls,
and (C) any fraud, that involves management or other employees who have a significant role in the internal controls of NMHI and each of its subsidiaries.
nn)
Disclosure Controls and Procedures.
The NMHI and the Companies maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; and such disclosure controls and procedures have been designed to ensure that material information relating to NMHI, the Company and their respective subsidiaries is made known to the NMHI’s and
Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
oo)
Critical Accounting Policies
. The section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies” in
NMHI’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, incorporated by reference into the Disclosure Package and the Prospectus, when taken together, accurately and fully describe (i) the accounting policies
that NMHI believes are the most important in the portrayal of NMHI’s financial condition and results of operations and that require management’s most difficult, subjective or complex judgments; (ii) the judgments and uncertainties
affecting the application of critical accounting policies; and (iii) the likelihood that materially different amounts would be reported under different conditions or using different assumptions and an explanation thereof.
pp)
FSMA.
The Companies have not taken any action or omitted to take any action (such as issuing any press release relating to any
Notes without an appropriate legend) which may result in the loss by any of the Underwriters of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the Financial Services and Markets Act 2000.
qq)
Regulations T, U and X.
None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes), will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U and X of the Board of
Governors of the Federal Reserve System.
14
rr) Nationstar has ratings as a residential mortgage servicer of “Above Average”
by Standard and Poor’s and “RPS2” by Fitch, Inc.
Any certificate signed by an officer of any Company or any
Guarantor and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Companies or such Guarantor, jointly and severally, to each Underwriter as to the matters set forth therein.
S
ECTION
2.
Purchase, Sale and Delivery of the Notes.
a)
The Notes.
The Companies and the Guarantors, jointly and severally, agree to issue and sell to the several Underwriters,
severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Companies and the Guarantors the aggregate principal amount of Notes set forth opposite their names on Schedule A at a purchase price of 98.500% of the principal amount of the Notes, payable on the
Closing Date.
b)
The Closing Date.
Delivery of certificates for the Notes in global form to be purchased by the
Underwriters and payment therefor shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York, New York 10036 (or such other place as may be agreed to by the Companies and the Representatives) at 9:00
a.m., New York City time, on May 31, 2013, or such other time and date as the Underwriters and the Companies shall mutually agree (the time and date of such closing are called the “
Closing Date
”).
c)
Public Offering of the Notes.
The Representatives hereby advise the Companies and the Guarantors that the Underwriters intend
to offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and
practicable.
d)
Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire transfer of
immediately available funds to the order of the Companies.
It is understood that the Representatives have been authorized,
for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The Representatives may (but shall
not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
e)
Delivery of the Notes.
The Companies shall deliver,
or cause to be delivered, to the Representatives for the accounts of the several Underwriters certificates for the Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Notes shall be in such denominations and registered in such names and denominations as the Representatives shall have requested at least one full business days prior to the Closing Date and shall be
made available for
15
inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
S
ECTION
3.
Covenants of the Companies and the Guarantors.
The Companies and the Guarantors, jointly and severally, covenant
and agree with each Underwriter as follows:
a)
Compliance with Securities Regulations and Commission Requests.
The
Companies and the Guarantors, subject to Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any
comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of
the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Companies and the Guarantors will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as they deem necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the
event that it was not, will promptly file such document. The Companies and the Guarantors will use reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
b)
Filing of Amendments.
During such period beginning on the date of this Agreement and ending on the
later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in circumstances
where such requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “
Prospectus Delivery Period
”), the Companies and the Guarantors will give the Representatives notice of their intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange
Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
c)
Delivery of Registration Statements.
The Companies and the
Guarantors has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and of each amendment
16
thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents
and certificates of experts. Filing of the Registration Statement and each amendment thereto on EDGAR will meet the requirements of this Section 3(c).
d)
Delivery of Prospectuses.
The Companies and the Guarantors will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably
request, and the Companies and the Guarantors hereby consent to the use of such copies for purposes permitted by the Securities Act. The Companies and the Guarantors will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e)
Continued Compliance with Securities Laws
. The Companies and the Guarantors will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the
Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will 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 or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in
the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Companies and the Guarantors will
(1) notify the Representatives of any such event, development or condition and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Companies and the Guarantors will furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
f)
Blue Sky Compliance.
The Companies shall
cooperate with the Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes. The Companies shall not be required to qualify to transact business or
to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Companies will advise the Representatives
promptly of the suspension of the qualification or
17
registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration or exemption, the Companies shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
g)
Use of Proceeds.
The Companies shall apply the net proceeds from the sale of the Notes sold by them in the manner described
under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus.
h)
Depositary.
The
Companies and the Guarantors will cooperate with the Underwriters and use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary.
i)
Periodic Reporting Obligations.
During the Prospectus Delivery Period, NMHI shall file, on a timely basis, with the Commission
and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act.
j)
Listing.
The
Companies will use their best efforts to effect the listing of the Notes on the New York Stock Exchange as soon as practicable after the date hereof.
k)
Agreement Not to Offer or Sell Additional Securities.
During the period commencing on the date hereof and ending on the 45
th
day after the date hereof, the Companies and the Guarantors will not, without the prior written consent of Credit
Suisse (which consent may be withheld at the sole discretion of Credit Suisse), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Companies or the Guarantors similar to
the Notes or securities exchangeable for or convertible into debt securities similar to the Notes (other than (i) as contemplated by this Agreement with respect to the Notes and (ii) in connection with the Companies’ offer to exchange
their 9.625% Senior Notes due 2019 that have been registered under the Securities Act for their unregistered 9.625% Senior Notes due 2019, the Companies’ offer to exchange their 7.875% Senior Notes due 2020 that have been registered under the
Securities Act for their unregistered 7.875% Senior Notes due 2020 and the Companies’ offer to exchange their 6.500% Senior Notes due 2021 that have been registered under the Securities Act for their unregistered 6.500% Senior Notes due 2021).
l)
Final Term Sheet
. The Companies and the Guarantors will prepare a final term sheet containing only a description of
the Notes, in a form approved by the Underwriters and attached as Exhibit B hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “
Final Term
Sheet
”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
m)
Permitted Free Writing Prospectuses
. The Companies and the Guarantors represent that they have not made, and agree that, unless they obtains the prior written consent of the Representatives, they will not make, any offer relating to the Notes
that would constitute an
18
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Companies
with the Commission or retained by the Companies under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included
in Annex I to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Companies and the Guarantors
agree that they (i) have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) have complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Companies and the Guarantors consent to the use by any
Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering,
(ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Companies and the Guarantors
contemplated in Section 3(k).
n)
Registration Statement Renewal Deadline.
If immediately prior to the third
anniversary (the “
Renewal Deadline
”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Companies and the Guarantors will prior to the Renewal Deadline file, if they
have not already done so and are eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Companies and the Guarantors are no longer eligible to file an automatic
shelf registration statement, the Companies and the Guarantors will prior to the Renewal Deadline, if they have not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and
will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Companies and the Guarantors will take all other action necessary or appropriate to permit the public offering and
sale of the Notes to continue as contemplated in the expired registration statement relating to the Notes. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be.
o)
Notice of Inability to Use Automatic Shelf Registration Statement Form
. If at any
time during the Prospectus Delivery Period, the Companies or the Guarantors receive from the Commission a notice pursuant to Rule 401(g)(2) or otherwise cease to be eligible to use the automatic shelf registration statement form for the sale of
Notes, the Companies and the Guarantors will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the
Representatives, (iii) use their best efforts to cause such registration statement of post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Companies and the Guarantors
will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Companies and
the Guarantors have otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
19
p)
Filing Fees
. The Companies agree to pay the required Commission filing fees
relating to the Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
q)
Compliance with Sarbanes-Oxley Act.
The Companies and the Guarantors will comply with all applicable securities and other laws,
rules and regulations, including, without limitation, the Sarbanes-Oxley Act, as applicable, and use their best efforts to cause the Companies’ and the Guarantors’ directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
r)
No Manipulation
of Price.
The Companies and the Guarantors will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any securities of the Companies or the Guarantors to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Companies or the Guarantors of any one or more of the foregoing covenants
or extend the time for their performance.
S
ECTION
4.
Payment of Expenses
. The Companies and the
Guarantors, jointly and severally, agree to pay all costs, fees and expenses incurred in connection with the performance of their obligations hereunder and in connection with the transactions contemplated hereby, including without limitation
(i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes,
(iii) all fees and expenses of the Companies’ and the Guarantors’ counsel, independent public or certified public accountants and other advisors to the Companies and the Guarantors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the
Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the
Companies, the Guarantors or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky
laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee, including the reasonable fees
and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses (including
20
reasonable fees and expenses of counsel) of the Companies and the Guarantors in connection with approval of the Notes by the Depositary for “book-entry” transfer, (x) all other
fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, (xi) the fees and expenses incurred in connection with the listing of the Notes on the New York Stock Exchange and (xii) all other fees, costs
and expenses incurred in connection with the performance of their obligations hereunder for which provision is not otherwise made in this Section;
provided
,
however
, that the aggregate amount payable by the Companies and the Guarantors
in respect of the legal fees and expenses of the Underwriters’ counsel pursuant to this Section 4 shall not exceed $150,000. Except as provided in this Section 4 and Sections 6 and 8 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
S
ECTION
5.
Conditions of the
Obligations of the Underwriters
. The obligations of the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the
Companies and the Guarantors set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Companies and the Guarantors of their covenants
and other obligations hereunder, and to each of the following additional conditions:
a)
Effectiveness of Registration
Statement
. The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters and
the Companies and the Guarantors shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the
Prospectus shall have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of
Rule 430A).
b)
Accountants’ Comfort Letter.
On the date hereof, the Representatives shall have received from
Ernst & Young LLP, independent registered public accountants for Nationstar and NMHI, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and
unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
c)
Bring-down Comfort Letter
. On the Closing Date, the Representatives shall have received from Ernst & Young LLP, independent public or certified public accountants for Nationstar and
NMHI, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the
specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
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d)
No Objection.
If the Registration Statement and/or the offering of the Notes has
been filed with the FINRA for review, the FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
e)
No Material Adverse Change or Ratings Agency Change.
For the period from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or letters referred to in paragraph
(c) of this Section 5 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) no downgrading shall have occurred in the rating accorded Nationstar’s Mortgage Servicer Rating by
any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of Nationstar’s Mortgage Servicer Ratings.
f)
Opinion of Counsel
for the Companies and the Guarantors.
On the Closing Date, the Representatives shall have received the favorable opinion and negative assurance letter of Cleary Gottlieb Steen & Hamilton LLP, counsel for the Companies and the
Guarantors, dated as of such Closing Date, the forms of which are attached as Exhibits A-1 and A-2.
g)
Opinion of General
Counsel.
On the Closing Date, the Representatives shall have received the favorable opinion of Anthony W. Villani, in his capacity as Executive Vice President and General Counsel of Nationstar and General Counsel of Nationstar Corp., dated as of
such Closing Date, the form of which is attached as Exhibit A-3.
h)
Opinion of Counsel for the Underwriters.
On the
Closing Date, the Representatives shall have received the favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Underwriters.
i)
Officers’ Certificate.
On the Closing Date, the Representatives shall have
received a written certificate executed by the Chief Executive Officer and Chief Financial Officer of the Companies and each Guarantor, or other officers satisfactory to the Representatives, dated as of such Closing Date, to the effect that:
(i) the Companies and the Guarantors have not received any stop orders suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form;
22
(iii) the representations, warranties and covenants of the Companies and the
Guarantors set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date;
(iv) the Companies and the Guarantors have complied with all the agreements hereunder and satisfied all the conditions on
their part to be performed or satisfied hereunder at or prior to such Closing Date; and
(v) they have examined
the Disclosure Package and the Prospectus, and, in their opinion, (A) the Disclosure Package, as of the Initial Sale Time, and the Prospectus, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a
material fact and did not and do not 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 and (B) since the date of the Disclosure Package and the
Prospectus, no event has occurred which should have been set forth in a supplement or amendment to the Disclosure Package and the Prospectus.
j)
Additional Documents.
On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably
require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections
4, 6, 8 and 16 shall at all times be effective and shall survive such termination.
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6.
Reimbursement of Underwriters’ Expenses
. If this Agreement is terminated by the Representatives pursuant to Section 5, 9 or 10, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of
any refusal, inability or failure on the part of the Companies or the Guarantors to perform any agreement herein or to comply with any provision hereof, the Companies and the Guarantors, jointly and severally, agree to reimburse the Representatives
and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
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7.
Effectiveness of this Agreement.
This Agreement shall not become effective until the
execution of this Agreement by the parties hereto.
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ECTION
8.
Indemnification.
(a)
Indemnification of the Underwriters.
The Companies and each Guarantor, hereby agree, jointly and severally, to indemnify and
hold harmless each Underwriter, its affiliates, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Notes), to which that Underwriter,
affiliate, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based, (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse
each Underwriter and each such affiliate, director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, affiliate, director, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred;
provided
,
however
, that the Companies and the Guarantors shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, or any amendment
thereto, or in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning such Underwriter furnished to the Companies through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information
specified in Section 8(f). The foregoing indemnity agreement is in addition to any liability that the Companies or the Guarantors may otherwise have to any Underwriter or to any affiliate, director, officer, employee or controlling person of
that Underwriter.
(b)
Indemnification of the Companies, the Guarantors and Their Respective Directors and Officers.
Each Underwriter, severally and not jointly, hereby agrees to indemnify and hold harmless the Companies, each Guarantor, their respective officers and employees, each of their respective directors, and each person, if any, who controls any
Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which any
Company, any Guarantor or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based, (i) upon any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or
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necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Company Additional Written
Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that the untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Companies through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 8(f);
provided, however,
that the Underwriters shall not be liable for any losses, claims, damages or liabilities arising out of or based upon the Companies’ or the Guarantors’ failure to perform its obligations under Section 3(b)
and (e) of this Agreement. The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to any Company, any Guarantor or any such director, officer, employee or controlling person.
(c)
Indemnification of the QIU
Without limitation and in addition to its obligation under the other subsections of this
Section 8, the Companies and each Guarantor agree to indemnify and hold harmless the QIU, its affiliates, directors, officers and employees and each person, if any, who controls the QIU within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any loss, claim, damage or liability, as incurred, arising out of or based upon the QIU’s acting as a “qualified independent underwriter” (within the meaning of Rule
5121(f)(12) of FINRA) in connection with the offering contemplated by this Agreement, and agrees to reimburse each such indemnified person for any legal or other expense reasonably incurred by them in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the Companies and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or
expense results from the gross negligence or willful misconduct of the QIU.
(d)
Notifications and Other Indemnification
Procedures.
Promptly after receipt by an indemnified party under Section 8(a), 8(b) or 8(c) of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under Section 8(a), 8(b) or 8(c), notify the indemnifying party in writing of the claim or the commencement of that action;
provided
,
however
, that the failure to notify the indemnifying party shall not relieve
it from any liability that it may have under Section 8(a), 8(b) or 8(c) except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure and;
provided
,
further
, that
the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under Section 8(a), 8(b) or 8(c). If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the
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indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation;
provided
,
however
, that the Underwriters shall have the right to employ a single counsel
(plus a single local counsel in each different jurisdiction) to represent jointly the Underwriters and their respective affiliates, directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against any Company or any Guarantor under Section 8(a) or 8(b), if (i) the Companies, the Guarantors and the Underwriters shall have so mutually agreed; (ii) the Companies
and the Guarantors have failed within a reasonable time to retain counsel reasonably satisfactory to the Underwriters; (iii) the Underwriters and their respective affiliates, directors, officers, employees and controlling persons shall have
reasonably concluded, based on the advice of counsel, that there may be legal defenses available to them that are different from or in addition to those available to the Companies and the Guarantors; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Underwriters or their respective directors, officers, employees or controlling persons, on the one hand, and the Companies and the Guarantors, on the other hand, and representation of
both sets of parties by the same counsel would present a conflict due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the Companies and the Guarantors. No
indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if
there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(e)
Contribution.
If the indemnification provided for in this Section 8 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a), 8(b) or 8(c) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Companies and the Guarantors, on the one hand, and the Underwriters, on the other, from the offering of the Notes, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Companies and the Guarantors, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The
26
relative benefits received by the Companies and the Guarantors, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Companies and the Guarantors, on the one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the Notes purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Notes under this Agreement as set forth on the cover page of the Prospectus. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Companies, the Guarantors, or the Underwriters, the
intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Companies shall be
deemed to be also for the benefit of the Guarantors, and information supplied by the Companies shall also be deemed to have been supplied by the Guarantors. The Companies, the Guarantors, and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(e) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(e) shall be deemed to
include, for purposes of this Section 8(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8(e), no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute
as provided in this Section 8(e) are several in proportion to their respective purchase obligations and not joint.
(f)
Underwriter Information.
The Underwriters severally confirm and the Companies and the Guarantors acknowledge and agree that the statements with respect to the offering of the Notes by the Underwriters set forth in paragraph three, the third
sentence of paragraph eight and paragraph nine under the caption “Underwriting (Conflicts of Interest)” and the last sentence under the caption “Underwriting (Conflicts of Interest)—Conflicts of Interest” each as set forth
in the Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to any Company or any Guarantor by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement, or any amendment thereto, or in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto.
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9.
Default of One or More of the Several Underwriters.
If, on the Closing Date, any one or more of the
several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes, which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase does
27
not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal
amounts of such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and
arrangements satisfactory to the Representatives and the Companies for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the
provisions of Sections 4, 6, 8 and 16 shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Companies shall have the right to postpone the Closing Date, but in no event for longer
than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting
Underwriter under this Section 9. Any action taken under this Section 9 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
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10.
Termination of this Agreement.
Prior to the Closing Date, this Agreement may be terminated
by the Representatives by notice given to the Companies if at any time (i) trading or quotation in any securities of the Companies shall have been suspended or limited by the Commission or the applicable securities exchange, or trading in
securities generally on either the Nasdaq Stock Market, the New York Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock
exchanges by the Commission or the FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or
international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in the Disclosure
Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in
commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 10 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided further
that Sections 4, 6, 8 and 16 shall survive such termination and remain in full force and effect.
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ECTION
11.
No Fiduciary Duty
. The Companies and the Guarantors
acknowledge and agree that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is an arm’s-length commercial
transaction between the Companies and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the Companies and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary of any Company, any Guarantor or any of their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of any Company or any Guarantor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising any Company or any
Guarantor on other matters) and no Underwriter has any obligation to the Companies or the Guarantors with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Companies and the Guarantors and that the several Underwriters have no obligation to disclose any of such interests
by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Companies and the Guarantors have
consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
This Agreement
supersedes all prior agreements and understandings (whether written or oral) among the Company, the Guarantors and the several Underwriters with respect to the subject matter hereof. The Companies and the Guarantors hereby waive and release, to the
fullest extent permitted by law, any claims that the Companies or any of the Guarantors may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
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12.
Representations and Indemnities to Survive Delivery.
The respective indemnities,
agreements, representations, warranties and other statements of the Companies and the Guarantors, of their respective officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full
force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the QIU, the officers or employees of any Underwriter, or any person controlling the Underwriter, any
Company, any Guarantor, the officers or employees of any Company, any Guarantor, or any person controlling any Company, any Guarantor, as the case may be or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive
delivery of and payment for the Notes sold hereunder and any termination of this Agreement.
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13.
Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
29
New York, New York 10010
Attention: IBD—Legal
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Facsimile: 917-777-4112
Attention: Richard Aftanas
If to the Company or any Guarantor:
Nationstar Mortgage LLC
350 Highland Drive
Lewisville, Texas 75067
Facsimile: 469-549-2085
Attention: General Counsel
with a copy to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
Facsimile: 212-225-3999
Attention: Duane McLaughlin
Any party hereto may change the address for receipt
of communications by giving written notice to the others.
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14.
Successors.
This Agreement
will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 9 hereof, and to the benefit of the directors, officers, employees, affiliates, agents and controlling persons
referred to in Section 8, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes as such from any of the
Underwriters merely by reason of such purchase.
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15.
Partial Unenforceability.
The
invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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16.
Governing Law Provisions.
THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR
RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
30
(a)
Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby (“
Related Proceedings
”) may be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, or
the courts of the State of New York in each case located in the City and County of New York, Borough of Manhattan (collectively, the “
Specified Courts
”), and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such court (a “
Related Judgment
”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
Section 17.
Trial by Jury
. THE COMPANIES AND THE
GUARANTORS (ON THEIR BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF THEIR RESPECTIVE STOCKHOLDERS OR OTHER OWNERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 18.
Research Analyst Independence
. The Companies and the Guarantors acknowledge that the Underwriters’ research analysts and research departments are required to be independent
from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish
research reports with respect to the Companies, the Guarantors, their respective subsidiaries and/or the offering of the Notes that differ from the views of their respective investment banking divisions. The Companies and the Guarantors hereby waive
and release, to the fullest extent permitted by law, any claims that any Company or any Guarantor may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Companies and the Guarantors by such Underwriters’ investment banking divisions. The Companies and the Guarantors
acknowledge that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
S
ECTION
19.
General Provisions
. This Agreement may be executed in two or more counterparts (which may include counterparts delivered by any standard form of
telecommunications), each one of which shall be an original, with the same effect as if the
31
signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel
during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges
that the provisions of Section 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Companies and the Guarantors, their respective affairs and business in order to assure that adequate disclosure has been
made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
32
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Companies and the Guarantors the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
|
|
|
|
Very truly yours,
|
|
|
|
N
ATIONSTAR
M
ORTGAGE
LLC
|
|
|
|
|
By
|
|
/s/ David C. Hisey
|
|
Name:
|
|
David C. Hisey
|
|
Title:
|
|
Chief Financial Officer
|
|
|
|
N
ATIONSTAR
C
APITAL
C
ORPORATION
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
Name:
|
|
Jay Bray
|
|
Title:
|
|
Chief Executive Officer
|
|
|
|
N
ATIONSTAR
M
ORTGAGE
H
OLDINGS
I
NC
.
|
|
|
|
|
By
|
|
/s/ David C. Hisey
|
|
Name:
|
|
David C. Hisey
|
|
Title:
|
|
Chief Financial Officer
|
|
|
|
N
ATIONSTAR
S
UB
1 LLC
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
Name:
|
|
Jay Bray
|
|
Title:
|
|
Chief Executive Officer
|
|
|
|
N
ATIONSTAR
S
UB
2 LLC
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
Name:
|
|
Jay Bray
|
|
Title:
|
|
Chief Executive Officer
|
|
|
|
|
|
C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III
|
|
G
ENERAL
P
ARTNER
, LLC
|
|
H
ARWOOD
S
ERVICE
C
OMPANY
LLC
|
|
H
ARWOOD
I
NSURANCE
S
ERVICES
, LLC
|
|
H
ARWOOD
S
ERVICE
C
OMPANY
OF
G
EORGIA
, LLC
|
|
H
ARWOOD
S
ERVICE
C
OMPANY
OF
N
EW
J
ERSEY
, LLC
|
|
H
OMESELECT
S
ETTLEMENT
S
OLUTIONS
, LLC
|
|
N
ATIONSTAR
2009 E
QUITY
C
ORPORATION
|
|
N
ATIONSTAR
E
QUITY
C
ORPORATION
|
|
N
ATIONSTAR
I
NDUSTRIAL
L
OAN
C
OMPANY
|
|
N
ATIONSTAR
I
NDUSTRIAL
L
OAN
C
ORPORATION
|
|
NSM R
ECOVERY
S
ERVICES
I
NC
.
|
|
NSM F
ORECLOSURE
S
ERVICES
I
NC
.
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
Name:
|
|
Jay Bray
|
|
Title:
|
|
Chief Financial Officer
|
|
|
|
|
|
|
|
|
|
C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III, L.P.
|
|
|
|
|
By:
|
|
C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III
|
|
|
|
G
ENERAL
P
ARTNER
, LLC,
its General Partner
|
|
|
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
|
|
Name:
|
|
Jay Bray
|
|
|
|
Title:
|
|
Chief Financial Officer
|
|
|
|
|
|
|
|
C
HAMPION
M
ORTGAGE
LLC
|
|
|
|
|
By
|
|
/s/ Jay Bray
|
|
Name:
|
|
Jay Bray
|
|
Title:
|
|
Chief Executive Officer
|
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
|
|
|
|
|
CREDIT SUISSE SECURITIES (USA) LLC
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
|
|
INCORPORATED
|
|
BARCLAYS CAPITAL INC.
|
|
WELLS FARGO SECURITIES, LLC
|
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
Acting as Representatives of the several Underwriters named in the attached Schedule A.
|
|
|
|
|
By:
|
|
Credit Suisse Securities (USA) LLC
|
|
|
|
|
By:
|
|
/s/ Andrew Rosenburgh
|
|
Name:
|
|
Andrew Rosenburgh
|
|
Title:
|
|
Managing Director
|
|
|
|
|
By:
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
|
|
By:
|
|
/s/ Samuel Baruch
|
|
Name:
|
|
Samuel Baruch
|
|
Title:
|
|
Director
|
|
|
|
|
By:
|
|
Barclays Capital Inc.
|
|
|
|
|
By:
|
|
/s/ Robert Chen
|
|
Name:
|
|
Robert Chen
|
|
Title:
|
|
Managing Director
|
|
|
|
|
By:
|
|
Wells Fargo Securities, LLC
|
|
|
|
|
By:
|
|
/s/ David R. Keatley
|
|
Name:
|
|
David R. Keatley
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
By:
|
|
J.P. Morgan Securities LLC
|
|
|
|
|
By:
|
|
/s/ Warfield Price
|
|
Name:
|
|
Warfield Price
|
|
Title:
|
|
Managing Director
|
Exhibit 4.1
INDENTURE
Dated as of May 31, 2013
Among
NATIONSTAR MORTGAGE LLC,
as the Company
NATIONSTAR CAPITAL CORPORATION,
as the Co-Issuer
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO,
and
WELLS FARGO
BANK, NATIONAL ASSOCIATION,
as Trustee
6.500% SENIOR NOTES DUE 2022
CROSS-REFERENCE TABLE*
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture
Section
|
|
310(a)(1)
|
|
7.10
|
|
(a)(2)
|
|
7.10
|
|
(a)(3)
|
|
N.A.
|
|
(a)(4)
|
|
N.A.
|
|
(a)(5)
|
|
7.10
|
|
(b)
|
|
7.10
|
|
(c)
|
|
N.A.
|
|
311(a)
|
|
7.11
|
|
(b)
|
|
7.11
|
|
(c)
|
|
N.A.
|
|
312(a)
|
|
2.05
|
|
(b)
|
|
12.03
|
|
(c)
|
|
12.03
|
|
313(a)
|
|
7.06
|
|
(b)(1)
|
|
N.A
|
|
(b)(2)
|
|
7.06;7.07
|
|
(c)
|
|
7.06;12.02
|
|
(d)
|
|
7.06
|
|
314(a)
|
|
4.03, 4.04;
12.02; 12.05
|
|
(b)
|
|
N.A.
|
|
(c)(1)
|
|
12.04
|
|
(c)(2)
|
|
12.04
|
|
(c)(3)
|
|
N.A.
|
|
(d)
|
|
N.A.
|
|
(e)
|
|
12.05
|
|
(f)
|
|
N.A.
|
|
315(a)
|
|
7.01
|
|
(b)
|
|
7.05; 12.02.
|
|
(c)
|
|
7.01
|
|
(d)
|
|
7.04
|
|
(e)
|
|
6.12
|
|
316(a)(last sentence)
|
|
2.09
|
|
(a)(1)(A)
|
|
6.05
|
|
(a)(1)(B)
|
|
6.04
|
|
(a)(2)
|
|
N.A.
|
|
(b)
|
|
6.06
|
|
(c)
|
|
9.04
|
|
317(a)(1)
|
|
6.07
|
|
(a)(2)
|
|
6.11
|
|
(b)
|
|
2.04
|
|
318(a)
|
|
12.01
|
|
(b)
|
|
N.A.
|
|
(c)
|
|
12.01
|
N.A. means not applicable.
|
*
|
This Cross-Reference Table is not part of this Indenture.
|
EXHIBITS
|
|
|
|
|
Exhibit A
|
|
Form of Note
|
|
|
|
|
Exhibit B
|
|
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
|
-i-
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
ARTICLE I
|
|
|
|
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
|
Section 1.01
|
|
Definitions
|
|
|
1
|
|
|
Section 1.02
|
|
Other Definitions
|
|
|
40
|
|
|
Section 1.03
|
|
Incorporation by Reference of Trust Indenture Act
|
|
|
40
|
|
|
Section 1.04
|
|
Rules of Construction
|
|
|
41
|
|
|
Section 1.05
|
|
Acts of Holders
|
|
|
41
|
|
|
|
|
ARTICLE II
|
|
|
|
|
THE NOTES
|
|
|
|
|
|
|
Section 2.01
|
|
Form and Dating; Terms
|
|
|
43
|
|
|
Section 2.02
|
|
Execution and Authentication
|
|
|
44
|
|
|
Section 2.03
|
|
Registrar and Paying Agent
|
|
|
45
|
|
|
Section 2.04
|
|
Paying Agent to Hold Money in Trust
|
|
|
45
|
|
|
Section 2.05
|
|
Holder Lists
|
|
|
45
|
|
|
Section 2.06
|
|
Transfer and Exchange
|
|
|
46
|
|
|
Section 2.07
|
|
Replacement Notes
|
|
|
51
|
|
|
Section 2.08
|
|
Outstanding Notes
|
|
|
51
|
|
|
Section 2.09
|
|
Treasury Notes
|
|
|
52
|
|
|
Section 2.10
|
|
Temporary Notes
|
|
|
52
|
|
|
Section 2.11
|
|
Cancellation
|
|
|
52
|
|
|
Section 2.12
|
|
CUSIP and ISIN Numbers
|
|
|
52
|
|
|
|
|
ARTICLE III
|
|
|
|
|
REDEMPTION
|
|
|
|
|
|
|
Section 3.01
|
|
Notices to Trustee
|
|
|
53
|
|
|
Section 3.02
|
|
Selection of Notes to Be Redeemed or Purchased
|
|
|
53
|
|
|
Section 3.03
|
|
Notice of Redemption
|
|
|
53
|
|
|
Section 3.04
|
|
Effect of Notice of Redemption
|
|
|
54
|
|
|
Section 3.05
|
|
Deposit of Redemption or Purchase Price
|
|
|
55
|
|
|
Section 3.06
|
|
Notes Redeemed or Purchased in Part
|
|
|
55
|
|
|
Section 3.07
|
|
Optional Redemption
|
|
|
55
|
|
|
Section 3.08
|
|
Mandatory Redemption
|
|
|
56
|
|
|
Section 3.09
|
|
Offers to Repurchase by Application of Excess Proceeds
|
|
|
57
|
|
-i-
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
ARTICLE IV
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
Section 4.01
|
|
Payment of Notes
|
|
|
59
|
|
|
Section 4.02
|
|
Maintenance of Office or Agency
|
|
|
59
|
|
|
Section 4.03
|
|
Reports and Other Information
|
|
|
60
|
|
|
Section 4.04
|
|
Compliance Certificate
|
|
|
61
|
|
|
Section 4.05
|
|
Taxes
|
|
|
62
|
|
|
Section 4.06
|
|
Stay, Extension and Usury Laws
|
|
|
62
|
|
|
Section 4.07
|
|
Limitation on Restricted Payments
|
|
|
62
|
|
|
Section 4.08
|
|
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
|
|
|
67
|
|
|
Section 4.09
|
|
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
|
|
|
69
|
|
|
Section 4.10
|
|
Asset Sales
|
|
|
70
|
|
|
Section 4.11
|
|
Limitation on Transactions with Affiliates
|
|
|
72
|
|
|
Section 4.12
|
|
Limitation on Liens
|
|
|
74
|
|
|
Section 4.13
|
|
Conduct of Business
|
|
|
75
|
|
|
Section 4.14
|
|
Offer to Repurchase Upon Change of Control
|
|
|
75
|
|
|
Section 4.15
|
|
Limitation on Guarantees by Restricted Subsidiaries
|
|
|
77
|
|
|
Section 4.16
|
|
Limitation on Sale and Leaseback Transactions
|
|
|
78
|
|
|
Section 4.17
|
|
Designation of Unrestricted and Restricted Subsidiaries
|
|
|
78
|
|
|
Section 4.18
|
|
Restrictions on Activities of the Co-Issuer
|
|
|
79
|
|
|
Section 4.19
|
|
Covenant Suspension
|
|
|
79
|
|
|
|
|
ARTICLE V
|
|
|
|
|
SUCCESSORS
|
|
|
|
|
|
|
Section 5.01
|
|
Merger, Consolidation or Sale of All or Substantially All Assets
|
|
|
79
|
|
|
Section 5.02
|
|
Surviving Entity Substituted
|
|
|
81
|
|
|
|
|
ARTICLE VI
|
|
|
|
|
DEFAULTS AND REMEDIES
|
|
|
|
|
|
|
Section 6.01
|
|
Events of Default
|
|
|
81
|
|
|
Section 6.02
|
|
Acceleration
|
|
|
83
|
|
|
Section 6.03
|
|
Other Remedies
|
|
|
84
|
|
|
Section 6.04
|
|
Waiver of Past Defaults
|
|
|
84
|
|
|
Section 6.05
|
|
Control by Majority
|
|
|
85
|
|
|
Section 6.06
|
|
Rights of Holders of Notes to Receive Payment
|
|
|
85
|
|
|
Section 6.07
|
|
Collection Suit by Trustee
|
|
|
85
|
|
|
Section 6.08
|
|
Restoration of Rights and Remedies
|
|
|
85
|
|
|
Section 6.09
|
|
Rights and Remedies Cumulative
|
|
|
85
|
|
-ii-
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 6.10
|
|
Delay or Omission Not Waiver
|
|
|
86
|
|
|
Section 6.11
|
|
Trustee May File Proofs of Claim
|
|
|
86
|
|
|
Section 6.12
|
|
Undertaking for Costs
|
|
|
86
|
|
|
Section 6.13
|
|
Trustee May Enforce Claims without Possession of Notes
|
|
|
87
|
|
|
Section 6.14
|
|
Limitation on Suits
|
|
|
87
|
|
|
Section 6.15
|
|
Priorities
|
|
|
87
|
|
|
|
|
ARTICLE VII
|
|
|
|
|
TRUSTEE
|
|
|
|
|
|
|
Section 7.01
|
|
Duties of Trustee
|
|
|
88
|
|
|
Section 7.02
|
|
Rights of Trustee
|
|
|
89
|
|
|
Section 7.03
|
|
Individual Rights of Trustee
|
|
|
90
|
|
|
Section 7.04
|
|
Trustee’s Disclaimer
|
|
|
91
|
|
|
Section 7.05
|
|
Notice of Defaults
|
|
|
91
|
|
|
Section 7.06
|
|
Reports by Trustee to Holders of the Notes
|
|
|
91
|
|
|
Section 7.07
|
|
Compensation and Indemnity
|
|
|
91
|
|
|
Section 7.08
|
|
Replacement of Trustee
|
|
|
92
|
|
|
Section 7.09
|
|
Successor Trustee by Merger, etc.
|
|
|
93
|
|
|
Section 7.10
|
|
Eligibility; Disqualification
|
|
|
93
|
|
|
Section 7.11
|
|
Preferential Collection of Claims Against Issuer
|
|
|
93
|
|
|
|
|
ARTICLE VIII
|
|
|
|
|
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
Section 8.01
|
|
Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
94
|
|
|
Section 8.02
|
|
Legal Defeasance and Discharge
|
|
|
94
|
|
|
Section 8.03
|
|
Covenant Defeasance
|
|
|
95
|
|
|
Section 8.04
|
|
Conditions to Legal or Covenant Defeasance
|
|
|
95
|
|
|
Section 8.05
|
|
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
|
|
|
97
|
|
|
Section 8.06
|
|
Repayment to Issuer
|
|
|
97
|
|
|
Section 8.07
|
|
Reinstatement
|
|
|
98
|
|
|
|
|
ARTICLE IX
|
|
|
|
|
AMENDMENT, SUPPLEMENT AND WAIVER
|
|
|
|
|
|
|
Section 9.01
|
|
Without Consent of Holders of Notes
|
|
|
98
|
|
|
Section 9.02
|
|
With Consent of Holders of Notes
|
|
|
99
|
|
|
Section 9.03
|
|
Compliance with Trust Indenture Act
|
|
|
101
|
|
|
Section 9.04
|
|
Revocation and Effect of Consents
|
|
|
101
|
|
|
Section 9.05
|
|
Notation on or Exchange of Notes
|
|
|
101
|
|
|
Section 9.06
|
|
Trustee to Sign Amendments, etc.
|
|
|
102
|
|
-iii-
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Page
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ARTICLE X
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|
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GUARANTEES
|
|
|
|
|
|
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Section 10.01
|
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Note Guarantee
|
|
|
102
|
|
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Section 10.02
|
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Limitation on Guarantor Liability
|
|
|
104
|
|
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Section 10.03
|
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Execution and Delivery
|
|
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104
|
|
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Section 10.04
|
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Subrogation
|
|
|
105
|
|
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Section 10.05
|
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Benefits Acknowledged
|
|
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105
|
|
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Section 10.06
|
|
Merger, Consolidation or Sale of All or Substantially All Assets
|
|
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105
|
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Section 10.07
|
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Release of Note Guarantees
|
|
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105
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ARTICLE XI
|
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|
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SATISFACTION AND DISCHARGE
|
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Section 11.01
|
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Satisfaction and Discharge
|
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106
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Section 11.02
|
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Application of Trust Money
|
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107
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ARTICLE XII
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MISCELLANEOUS
|
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Section 12.01
|
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Trust Indenture Act Controls
|
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108
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Section 12.02
|
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Notices
|
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108
|
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Section 12.03
|
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Communication by Holders of Notes with Other Holders of Notes
|
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109
|
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Section 12.04
|
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Certificate and Opinion as to Conditions Precedent
|
|
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109
|
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Section 12.05
|
|
Statements Required in Certificate or Opinion
|
|
|
109
|
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Section 12.06
|
|
Rules by Trustee and Agents
|
|
|
110
|
|
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Section 12.07
|
|
No Personal Liability of Directors, Officers, Employees and Stockholders
|
|
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110
|
|
|
Section 12.08
|
|
Governing Law; Consent to Jurisdiction and Service
|
|
|
110
|
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Section 12.09
|
|
Waiver of Jury Trial
|
|
|
111
|
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Section 12.10
|
|
Force Majeure
|
|
|
111
|
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Section 12.11
|
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No Adverse Interpretation of Other Agreements
|
|
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111
|
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Section 12.12
|
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Successors
|
|
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111
|
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Section 12.13
|
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Severability
|
|
|
111
|
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Section 12.14
|
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Counterpart Originals
|
|
|
112
|
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Section 12.15
|
|
Table of Contents, Headings, etc.
|
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112
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Section 12.16
|
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Qualification of Indenture
|
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112
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Section 12.17
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U.S.A. Patriot Act
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112
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-iv-
INDENTURE, dated as of May 31, 2013, among Nationstar Mortgage LLC, a Delaware limited
liability company (the “
Company
”), Nationstar Capital Corporation, a Delaware corporation (the “
Co-Issuer
” and, together with the Company, the “
Issuers
”), the Guarantors (as defined herein) listed
on the signature pages hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee.
W
I
T
N
E
S
S
E
T
H
WHEREAS, each of the Issuers has duly
authorized the creation of an issue of $300,000,000 aggregate principal amount of 6.500% Senior Notes due 2022 (the “
Initial Notes
”);
WHEREAS, each of the Issuers and the Guarantors has duly authorized the execution and delivery of this Indenture.
NOW, THEREFORE, the Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
“
2010 Issue Date
” means
March 26, 2010.
“
Acquired Indebtedness
” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Subsidiary of the Company or at the time it merges or consolidates with the Company or any of its Subsidiaries or assumed in connection with the acquisition of assets from such Person and in each case
whether or not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Company or such acquisition, merger or consolidation.
“
Additional Notes
” means additional Notes (other than the Initial Notes) issued from time to time under this Indenture
in accordance with Sections 2.01 and 4.09 hereof.
“
Affiliate
” means, with respect to any specified Person,
any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative of the foregoing.
“
Agent
” means any Registrar or Paying Agent.
“
Applicable Premium
” means, with respect to any Note on any applicable
redemption date, the greater of (i) 1.0% of the then outstanding principal amount of such Note and (ii) the excess of:
(1) the present value at such redemption date of the sum of (i) the redemption price of such Note at December 1, 2017 (such
redemption price being set forth in Section 3.07(c) hereof plus (ii) all required interest payments due on such Note through December 1, 2017 (excluding accrued but unpaid interest), such present value to be computed using a discount
rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(2) the then outstanding principal
amount of such Note.
“
Applicable Procedures
” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
“
Asset Acquisition
” means: (1) an Investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become a Restricted
Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any Restricted Subsidiary of the Company; or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of
the assets of any Person (other than a Restricted Subsidiary of the Company) other than in the ordinary course of business.
“
Asset Sale
” means:
(1) the sale, lease (other than operating leases entered in the ordinary course of business), conveyance or other disposition of any assets or rights;
provided
that the sale, lease (other than
operating leases entered in the ordinary course of business), conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole, other than any Required Asset Sale or a Legacy Loan
Portfolio Sale, will be governed by the provisions of Section 4.14 and/or Section 5.01 hereof and not by the provisions of Section 4.10 hereof;
provided
further
that a transaction otherwise meeting the requirements of an
“Asset Sale” under this definition will be deemed to be an Asset Sale notwithstanding its treatment under GAAP; and
(2) the issuance or sale of Equity Interests in any of the Company’s Restricted Subsidiaries.
Notwithstanding the foregoing, none of the following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $5.0 million;
(2) a transfer of assets between or among the Company and any Restricted Subsidiary of the Company;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to another Restricted Subsidiary of the
Company;
-2-
(4) the sale of advances, loans, customer receivables, mortgage related securities or other
assets in the ordinary course of business, the sale of accounts receivable or other assets that by their terms convert into cash in the ordinary course of business, any sale of MSRs in connection with the origination of the associated mortgage loan
in the ordinary course of business or any sale of securities in respect of additional fundings under reverse mortgage loans in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents or Investment Grade Securities;
(6) disposition of Investments or other assets and disposition or compromise of receivables, in each case, in connection with the workout, compromise, settlement or collection thereof or exercise of
remedies with respect thereto, in the ordinary course of business or in bankruptcy, foreclosure or similar proceedings, including foreclosure, repossession and disposition of REO Assets and other collateral for loans serviced and/or originated by
the Company or any of its Subsidiaries;
(7) the modification of any loans owned or serviced by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(8) a Restricted Payment that does not violate Section 4.07
or a Permitted Investment;
(9) disposals or replacements of damaged, worn out or obsolete equipment or other assets no longer
used or useful in the business of the Company and its Restricted Subsidiaries, in each case the ordinary course of business;
(10) assets sold pursuant to the terms of Permitted Funding Indebtedness;
(11) a sale (in one or more transactions) of Securitization Assets or Residual Interests in the ordinary course of business;
(12) sales, transfers or contributions of Securitization Assets to Securitization Entities, Warehouse Facility Trusts and MSR Facility
Trusts in connection with Securitizations in the ordinary course of business;
(13) a sale or other disposition of Equity
Interests of an Unrestricted Subsidiary;
(14) the creation of a Lien (but not the sale or other disposition of the property
subject to such Lien) permitted by Section 4.12;
(15) transactions pursuant to repurchase agreements entered into in the
ordinary course of business;
(16) any Co-Investment Transaction; and
-3-
(17) any transfer, dividend or other distribution of Parent Stock to a direct or indirect
parent entity of the Company.
“
Attributable Debt
” in respect of a sale and leaseback transaction means, as
of the time of determination, the present value (discounted at the interest rate per annum implicit in the lease involved in such sale and leaseback transaction, as determined in good faith by the Company) of the obligation of the lessee thereunder
for rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or
any amounts required to be paid by such lessee thereunder contingent upon the amount of sales or similar contingent amounts) during the remaining term of such lease (including any period for which such lease has been extended or may, at the option
of the lessor, be extended);
provided
,
however
, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of
Capital Lease Obligation. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such rental payments shall also include the amount of such penalty, but no rental payments shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so terminated.
“
Bankruptcy Law
” means
Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“
Board of Directors
”
means, as to any Person, the Board of Directors, or similar governing body, of such Person or any duly authorized committee thereof.
“
Board Resolution
” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” means each day that is not a Saturday, a Sunday or a day on which commercial banking institutions are not
required to be open in the State of New York or the place of payment.
“
Capital Stock
” means:
(1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; or
(2) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests (whether general or limited) of such Person.
“
Capitalized Lease Obligation
” means, as to any Person, the obligations of such Person under a lease that are required
to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance
with GAAP.
-4-
“
Cash Equivalents
” means:
(1) Dollars;
(2) in the case of any Foreign Subsidiary of the Company that is a Restricted Subsidiary of the Company, such local currencies held by
such Foreign Subsidiary of the Company from time to time in the ordinary course of business;
(3) securities or any evidence
of indebtedness issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (
provided
that the full faith and credit of the United States is pledged in
support of those securities or such evidence of indebtedness);
(4) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the three highest ratings
obtainable from either S&P or Moody’s;
(5) certificates of deposit with maturities of twelve months or less from the
date of acquisition, bankers’ acceptances with maturities not exceeding twelve months and overnight bank deposits with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of
“B” or better;
(6) repurchase obligations with a term of not more than 30 days for underlying securities of the
types described in clauses (3) and (5) above entered into with any financial institution meeting the qualifications specified in clause (5) above;
(7) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and in each case maturing within twelve months after the date of acquisition; and
(8) money market funds at least 90.0% of the assets of which constitute Cash Equivalents of the kinds described in clauses
(1) through (7) of this definition.
In the case of Investments by any Foreign Subsidiary of the Company that is a
Restricted Subsidiary of the Company, Cash Equivalents shall also include (a) investments of the type and maturity described in clauses (1) through (8) above of foreign obligors, which Investments or obligors (or the parents of such
obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) local currencies and other short-term investments utilized by foreign Subsidiaries that are Restricted Subsidiaries in
accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (8) and in this paragraph.
-5-
“
Change of Control
” means the occurrence of any of the following:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, other than any Required Asset Sales or Legacy Loan Portfolio Sale, to any Person other than a Permitted Holder; or
(2) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than one or more Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50.0% or more of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies;
provided
that for purposes of
calculating the “beneficial ownership” of any group, any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not be included in determining the amount of Voting Stock “beneficially owned” by such
group.
For purposes of this definition, any direct or indirect holding company of the Company shall not itself be considered
a “Person” or “group” for purposes of clause (2) above;
provided
that no “Person” or “group” (other than the Permitted Holders) beneficially owns, directly or indirectly, more than 50.0% of the
total voting power of the Voting Stock of such holding company.
“
Clearstream
” means Clearstream Banking,
Société Anonyme.
“
Co-Investment Transaction
” means a transaction pursuant to which a portion
of MSRs or the right to receive fees in respect of MSRs are transferred for fair value to another Person.
“
Common
Stock
” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, whether outstanding on the Issue Date or
issued after the Issue Date, and includes, without limitation, all series and classes of such common stock.
“
Consolidated EBITDA
” means, with respect to any Person, for any period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced thereby:
(a) Consolidated Taxes;
-6-
(b) Consolidated Interest Expense (excluding Consolidated Interest Expense
on Indebtedness incurred under clauses (2), (5), (6), (10), (11), (12), (15) and (27) of the definition of Permitted Indebtedness);
(c) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (including charges
related to the writeoff of goodwill or intangibles as a result of impairment, but excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period), all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP;
(d) (i) customary fees, expenses or charges of the Company and its Restricted Subsidiaries payable in connection with (A) the issuance of the Notes, (B) the initial public offering of the
Company’s Common Stock or the Common Stock of any of its direct or indirect parent companies after the Issue Date and issuance of Equity Interests and (C) any acquisition, Investment, Asset Sale, disposition, incurrence or repayment of
Indebtedness and including, in each case, any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed, in each case whether or not successful, (ii) restructuring charges and (iii) any
amortization or write-off of debt issuance costs for Indebtedness incurred prior to the Issue Date;
(e) any
amortization or write-off of debt issuance costs payable in connection with Corporate Indebtedness incurred concurrent with and after the Issue Date;
(f) recovery of other-than-temporary loss on available-for-sale securities recognized through members’ (or shareholders’) equity;
(g) all other unusual or non-recurring items of loss or expense; and
(h) the amount of any expense related to minority interests; and,
(3) decreased by (without duplication):
(a) non-cash gains pursuant to clause (2) above increasing Consolidated Net Income of such Person for such period, excluding any gains that represent the reversal of any accrual of, or cash reserve
for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with this definition);
(b) all other unusual or non-recurring gains or revenue;
(c) all interest income to the extent a matching interest expense has been added back to clause (2) above; and
(d) fair market value of MSRs capitalized by the Company and its Restricted Subsidiaries;
-7-
all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with
GAAP. For the avoidance of doubt, Consolidated EBITDA shall exclude the effect of any income or loss related to a Legacy Loan Portfolio, except to the extent such income or loss is accounted for in the calculation of Consolidated Net Income.
“
Consolidated Interest Expense
” means, with respect to any Person for any period, the sum of, without
duplication:
(1) the aggregate of the interest expense on Indebtedness of such Person and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, including without limitation: (a) any amortization of debt discount; (b) the net costs under Permitted Hedging Transactions; (c) all capitalized interest; and
(d) the interest portion of any deferred payment obligation;
(2) to the extent not already included in clause (1), the
interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP;
(3) the imputed interest with respect to Attributable Debt created after the Issue Date; and
(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Capital of
such Person or preferred stock of any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Capital Stock) or to the Company or a Restricted Subsidiary of
the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on
a consolidated basis in accordance with GAAP.
“
Consolidated Net Income
” means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries before the payment of dividends on Preferred Stock for such period on a consolidated basis, determined in accordance with GAAP; provided that there
shall be excluded therefrom:
(1) after-tax gains and losses from asset sales or abandonments or reserves relating thereto;
(2) after-tax items classified as extraordinary gains or losses and direct impairment charges or the reversal of such charges
on the Person’s assets;
(3) the net income (but not loss) of any Restricted Subsidiary of the referent Person to the
extent that the declaration of dividends or similar distributions by that Subsidiary of that income is restricted by a contract, operation of law or otherwise, except for such restrictions permitted by clauses (7) and (8) of
Section 4.08(b), whether such permitted restrictions exist on the Issue Date or are created thereafter, except to the extent (in the case of net income) of cash dividends or distributions paid to the referent Person, or to a Wholly Owned
Restricted Subsidiary of the referent Person (other than a Restricted Subsidiary also subject to such restrictions), by such other Person;
-8-
(4) the net income or loss of any other Person, other than a Restricted Subsidiary of the
referent Person, except:
(a) to the extent (in the case of net income) of cash dividends or distributions paid
to the referent Person, or to a Wholly Owned Restricted Subsidiary of the referent Person (other than a Restricted Subsidiary described in clause (3) above), by such other Person; or
(b) that the referent Person’s share of any net income or loss of such other Person under the equity method of
accounting for Affiliates shall not be excluded;
(5) any restoration to income of any contingency reserve of an
extraordinary, nonrecurring or unusual nature, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;
(6) income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued);
(7) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person’s assets, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets;
(8) any valuation allowance for mortgage loans held-for-investment and/or any change in fair value of mortgage loans held for sale and
corresponding debt in relation to securitized loans in accordance with GAAP that require no additional capital or equity contributions to the Company;
(9) any change in fair value of MSRs or the amortization of MSRs pursuant to such Person’s accounting policy;
(10) Consolidated Taxes of such Person recognized in accordance with GAAP, to the extent they exceed the taxes in respect of the same income, capital or commercial activity that are recognized in
accordance with GAAP for the applicable period by a parent entity of such Person that is liable for such taxes;
(11) any
income or loss related to the fair market value of economic hedges related to MSRs or other mortgage related assets or securities, to the extent that such other mortgage related assets or securities are valued at fair market value and gains and
losses with respect to such related assets or securities have been excluded pursuant to another clause of this provision;
(12) any income or loss related to a Legacy Loan Portfolio;
-9-
(13) the cumulative effect of a change in accounting principles during such period; and
(14) the effect of any gain or loss associated with liabilities created in respect of a Co-Investment Transaction as a result
of the accounting treatment thereof under GAAP.
“
Consolidated Taxes
” means, with respect to any Person for
any period, all income taxes and foreign withholding taxes and taxes based on capital and commercial activity (or similar taxes) of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period.
“
Corporate Indebtedness
” means, with respect to any Person, the aggregate consolidated amount of Indebtedness of such
Person and its Restricted Subsidiaries then outstanding that would be shown on a consolidated balance sheet of such Person and its Restricted Subsidiaries (excluding, for the purpose of this definition, Indebtedness incurred under clauses (2), (5),
(6), (10), (11), (12), (15) and (27) of the definition of Permitted Indebtedness).
“
Corporate Trust Office
of the Trustee
” shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Issuers.
“
Credit Enhancement Agreements
” means, collectively, any documents, instruments, guarantees or agreements entered into
by the Company, any of its Restricted Subsidiaries, or any Securitization Entity for the purpose of providing credit support (that is reasonably customary as determined by Company senior management) with respect to any Permitted Funding Indebtedness
or Permitted Securitization Indebtedness.
“
Currency Agreement
” means, with respect to any specified Person,
any foreign exchange contract, currency swap agreement, futures contracts, options on futures contracts or other similar agreement or arrangement designed to protect such Person or any of its Restricted Subsidiary against fluctuations in currency
values.
“
Custodian
” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“
Default
” means an event or condition the occurrence of which is, or with the
lapse of time or the giving of notice or both would be, an Event of Default.
“
Definitive Note
” means a
certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of
Exhibit A
hereto, except that such Note shall not bear the Global Note Legend and
shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“
Depositary
” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
-10-
“
Designated Noncash Consideration
” means the Fair Market Value of any
noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an officers’ certificate executed by the principal financial
officer of the Company or such Restricted Subsidiary at the time of such Asset Sale less the amount of Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Noncash Consideration.
“
Disqualified Capital Stock
” means that portion of any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control) on or prior to the final maturity date of the Notes.
“
Dollar
” or “
$
” means the lawful money of the United States of America.
“
Domestic Subsidiary
” means, with respect to any Person, any Restricted Subsidiary of such Person other than a Foreign
Subsidiary.
“
Equity Interests
” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“
Equity
Offering
” means a sale either (1) of Equity Interests of the Company (other than Disqualified Capital Stock and other than to a Subsidiary of the Company) by the Company or (2) of Equity Interests of a direct or indirect parent
entity of the Company (other than to the Company or a Subsidiary of the Company) to the extent that the net proceeds therefrom are contributed to the common equity capital of the Company.
“
Euroclear
” means Euroclear S.A./N.V., as operator of the Euroclear system.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“
Excluded Contributions
” means net cash proceeds or marketable securities received by the Company from
contributions to its common equity capital designated as Excluded Contributions pursuant to an officers’ certificate on the date such capital contributions are made.
“
Excluded Restricted Subsidiary
” means any newly acquired or created Subsidiary of the Company that is designated as a Restricted Subsidiary but prohibited, in the reasonable judgment of
the Company, from guaranteeing the Notes by any applicable law, regulation or contractual restriction existing at the time such Subsidiary becomes a Restricted Subsidiary and which, in the case of any such contractual restriction, in the good faith
opinion of the management of the Company, cannot be removed through commercially reasonable efforts. As of the Issue Date, there are no Excluded Restricted Subsidiaries.
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“
Existing Facilities
” means, collectively, the Existing Servicing Advance
Facilities, the Existing Warehouse Facilities and the Existing MSR Facilities.
“
Existing MSR Facilities
”
means the MSR Notes together with the related documents thereto (including, without limitation, any security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement extending the maturity of, increasing the interest rate or fees applicable thereto, refinancing, replacing or otherwise restructuring (including adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders.
“
Existing Servicing Advance Facilities
” means: (1) the $275.0 million Agreement with respect to MBS Loan Buyout
Financing Option and the Further Amended and Restated Servicer Advance Early Reimbursement Mechanics Addendum, dated as of January 13, 2010, by and among the Company and the lender identified therein, (2) the $300.0 million 2010—ABS
Advance Financing Facility maintained with an affiliate of Wells Fargo Securities, LLC, (3) the $75.0 million 2011 Agency Advance Financing Facility maintained with an affiliate of Barclays Capital Inc. and (4) the MSR Notes, in each case,
together with the related documents thereto (including, without limitation, any security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to
time, including any agreement extending the maturity of, increasing the interest rate or fees applicable thereto, refinancing, replacing or otherwise restructuring (including adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders.
“
Existing Warehouse Facilities
” mean: (1) the $300.0 million Master Repurchase Agreement, dated as of
January 27, 2010, by and among the Company and the lender identified therein, (2) the $100.0 million Master Repurchase Agreement, dated as of October 7, 2009, by and among the Company and the lender identified therein, (3) the
$175.0 million Master Repurchase Agreement, dated as of October 21, 2010, by and among the Company and the lender identified therein, (4) the $50.0 million Master Repurchase Agreement, dated as of March 25, 2011, by and among the
Company and the lender identified therein, (5) the Master Repurchase Agreement, entered into December 2011, between the Company and the lender identified therein to finance certain eligible securities and (6) the $50.0 million As Soon As
Pooled Plus Agreements, by and among the Company and the lender identified therein; in each case, together with the related documents thereto (including, without limitation, any security documents), in each case as such agreements may be amended
(including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, increasing the interest rate or fees applicable thereto, refinancing, replacing or otherwise
restructuring (including adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other
agent, lender or group of lenders.
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“
Fair Market Value
” means, with respect to any asset or property, the price
which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall
be determined by the senior management of the Company or any Restricted Subsidiary of the Company, as applicable, when the fair market value of any asset other than cash is estimated in good faith to be below $5.0 million, and by the Board of
Directors of the Company acting reasonably and in good faith and, if the fair market value exceeds $10.0 million, shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee.
“
Fixed Charge Coverage Ratio
” means, with respect to any Person, as of any date, the ratio of (i) Consolidated
EBITDA of such Person for the most recently ended four full fiscal quarters (the “Four Quarter Period”) for which internal financial statements are available ending prior to the date of the transaction giving rise to the need to calculate
the Fixed Charge Coverage Ratio (the “Transaction Date”) to (ii) the Fixed Charges of such Person for the Four Quarter Period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio, “Consolidated EBITDA” and “Fixed Charges” shall be calculated after giving effect on a pro forma basis for the
period of such calculation to:
(1) the incurrence or repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment
of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to
the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and
(2) any asset sales or other dispositions or any asset originations, asset purchases, Investments and Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Indebtedness that is Acquired Indebtedness and also including any Consolidated EBITDA (including any pro forma expense and cost reductions) attributable to the assets which are originated or
purchased, the Investments that are made and the assets that are the subject of the Asset Acquisition or asset sale or other disposition during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if such asset sale or other disposition or asset origination, asset purchase, Investment or Asset Acquisition (including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any of its Restricted
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Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any
Restricted Subsidiary of such Person had directly incurred or otherwise assumed such guaranteed Indebtedness.
The Company
shall be entitled in calculating the Fixed Charge Coverage Ratio: (i) to treat the entry into a bona fide subservicing agreement in respect of MSRs as an Asset Acquisition and (ii) to give effect in such pro forma calculation to any bona
fide binding definitive agreement, subject to customary closing conditions, for any transaction that upon the consummation thereof would be subject to the foregoing paragraph (including any related incurrence or repayment of Indebtedness). The pro
forma calculations shall be made by a responsible accounting officer of the Company in good faith based on the information reasonably available to it at the time of such calculation. The foregoing calculations shall not be required to comply with
the requirements for pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto.
“
Fixed Charges
” means, with respect to any Person for any period, the sum of:
(1) Consolidated Interest Expense on Corporate Indebtedness,
(2) all cash dividend payments (excluding items eliminated in consolidation) on any series of Preferred Stock of such Person, and
(3) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Capital Stock.
“
Foreign Subsidiary
” means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof
or the District of Columbia.
“
Foreign Subsidiary Total Assets
” means the total assets of the Foreign
Subsidiaries of the Company, as determined in accordance with GAAP in good faith by the Company without intercompany eliminations.
“
GAAP
” means generally accepted accounting principles set forth in the opinions and pronouncements of the Financial Accounting Standards Board Accounting Standards Codification or in such
other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect as of December 31, 2011.
“
Global Note Legend
” means the legend set forth in Section 2.06(f)(i) hereof, which is required to be placed on all
Global Notes issued under this Indenture.
“
Global Notes
” means, individually and collectively, the permanent
Notes, substantially in the form of
Exhibit A
attached hereto, that bear the Global Note Legend and, if applicable, the OID Legend, and that have the “Schedule of Exchanges of Interests in the Global Note” attached thereto,
issued in accordance with Section 2.01, 2.06(b) or 2.06(f) hereof.
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“
guarantee
” means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).
“
Guarantor
” means each of:
(1) Centex Land Vista Ridge Lewisville III General Partner, LLC, Centex Land Vista Ridge Lewisville III, L.P., Harwood Service Company, LLC, Harwood Insurance Services, LLC, Harwood Service Company Of
Georgia, LLC, Harwood Service Company Of New Jersey, LLC, Homeselect Settlement Solutions, LLC, Nationstar 2009 Equity Corporation, Nationstar Equity Corporation, Nationstar Industrial Loan Company, Nationstar Industrial Loan Corporation, Nationstar
Mortgage Holdings Inc., Nationstar Sub1 LLC, Nationstar Sub2 LLC, NSM Recovery Services Inc., NSM Foreclosure Services Inc. and Champion Mortgage LLC; and
(2) any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture (but not including any Foreign Subsidiary or any Subsidiary that would be a
Foreign Subsidiary if it were a Restricted Subsidiary) and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture;
provided
that any
Excluded Restricted Subsidiary, any Securitization Entities, any Warehouse Facility Trusts and any MSR Facility Trusts shall not be deemed to be Guarantors.
“
Holder
” means the Person in whose name the Note is registered on the Registrar’s book.
“
Indebtedness
” means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such
Person;
(4) all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 90 days or more or are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted);
-15-
(5) all Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clauses (8) or (9) below;
(7) Obligations
of any other Person of the type referred to in clauses (1) through (6) above and clause (9) below which are secured by any lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the
Fair Market Value of such property or asset and the amount of the Obligation so secured;
(8) all Obligations under currency
agreements and interest swap agreements of such Person;
(9) all Attributable Debt of such Person; and
(10) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any.
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value
of such Disqualified Capital Stock, such Fair Market Value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued at a discount to par;
(2) with respect to any Obligations under currency agreements and interest swap agreements, the net amount payable if such agreements
terminated at that time due to default by such Person;
(3) in respect of Indebtedness of another Person secured by a Lien on
the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of
determination; and
(b) the amount of the Indebtedness of the other Person; or
(4) except as provided above, the principal amount or liquidation preference thereof, in the case of any other Indebtedness.
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“
Indenture
” means this Indenture, as amended or supplemented from time to
time.
“
Indirect Participant
” means a Person who holds a beneficial interest in a Global Note through a
Participant.
“
Initial Notes
” as defined in the recitals hereto.
“
Interest Payment Date
” means June 1 and December 1 of each year to stated maturity.
“
Investment
” means, with respect to any Person, any direct or indirect loan or other extension of credit (including,
without limitation, a guarantee), advance or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such
Person of any Capital Stock, bonds, notes, debentures or other securities or evidences or Indebtedness issued by, any Person that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner
as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. “Investment” shall exclude (x) accounts receivable, extensions of trade credit or advances by the
Company and its Restricted Subsidiaries on commercially reasonable terms in accordance with the Company’s or its Restricted Subsidiaries’ normal trade practices, as the case may be, (y) deposits made in the ordinary course of business
and customary deposits into reserve accounts related to Securitizations and (z) commission, travel and similar advances to officers, directors, managers and employees, in each case, made in the ordinary course of business.
“
Investment Grade
” means a rating of the Notes by both S&P and Moody’s, each such rating being one of such
agency’s four highest generic rating categories that signifies investment grade (i.e. BBB- (or the equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Moody’s);
provided
that, in each case, such ratings are
publicly available;
provided
,
further
, that in the event Moody’s or S&P is no longer in existence for purposes of determining whether the Notes are rated “Investment Grade,” such organization may be replaced by a
nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) designated by the Company, notice of which shall be given to the Trustee.
“
Investment Grade Securities
” means marketable securities of a Person (other than the Company or its Restricted
Subsidiaries, an Affiliate of joint venture of the Company or any Restricted Subsidiary), acquired by the Company or any of its Restricted Subsidiaries in the ordinary course of business that are rated, at the time of acquisition, BBB- (or the
equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Moody’s.
“
Issue Date
” means
May 31, 2013.
“
Issuer Order
” means a written request or order signed on behalf of the Issuers by an Officer
of each of the Issuers and delivered to the Trustee.
“
Legacy Loan Portfolio
” means the residential mortgage
loans subject to the Note Purchase Agreement, dated as of October 30, 2009 by and among the Company and the representatives of the initial purchasers party thereto.
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“
Legacy Loan Portfolio Sale
” means the sale, lease, conveyance or other
disposition, in one or more transactions of all or a portion of the Legacy Loan Portfolio.
“
Lien
” means any
lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest);
provided
that in no event shall an operating lease or a transfer of assets pursuant to a Co-Investment Transaction be deemed to constitute a Lien.
“
Moody’s
” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“
MSR
” means mortgage servicing rights (including master servicing rights) entitling the holder to service mortgage
loans.
“
MSR Assets
” means MSRs other than (i) MSRs on loans originated by the Company or its Restricted
Subsidiaries for so long as such MSRs are financed in the normal course of the origination of such loans and (ii) MSRs subject to existing Liens on the Issue Date securing Existing MSR Facilities.
“
MSR Facility
” means any financing arrangement of any kind, including, but not limited to, financing arrangements in the
form of repurchase facilities, loan agreements, note issuance facilities and commercial paper facilities (excluding in all cases, Securitizations), with a financial institution or other lender or purchaser exclusively to finance or refinance the
purchase, origination, pooling or funding by the Company or a Restricted Subsidiary of the Company of MSRs originated, purchased, or owned by the Company or any Restricted Subsidiary of the Company in the ordinary course of business.
“
MSR Facility Trust
” means any Person (whether or not a Restricted Subsidiary of the Company) established for the
purpose of issuing notes or other securities in connection with an MSR Facility, which (i) notes and securities are backed by specified MSRs purchased by such Person from the Company or any other Restricted Subsidiary, or (ii) notes and
securities are backed by specified mortgage loans purchased by such Person from the Company or any other Restricted Subsidiary.
“
MSR Indebtedness
” means Indebtedness in connection with a MSR Facility; the amount of any particular MSR Indebtedness
as of any date of determination shall be calculated in accordance with GAAP.
“
MSR Loans
” means loans
outstanding under the MSR Notes that are, in accordance with the terms thereof, secured by the pledge of an MSR.
“
MSR
Notes
” means the $22.2 million Senior Secured Credit Agreement, dated as of October 1, 2009, by and among the Company and the lender identified therein.
“
MSR Subsidiary
” means any Restricted Subsidiary of the Company that owns MSR Assets that have a Fair Market Value in excess of $5.0 million.
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“
Net Proceeds
” means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such
Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case,
after taking into account any available tax credits or deductions and any tax sharing arrangements, distributions to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.
“
Non-Recourse Indebtedness
” means, with respect to any specified Person, Indebtedness that is:
(1) specifically advanced to finance the acquisition of investment assets and secured only by the assets to which such Indebtedness
relates without recourse to such Person or any of its Restricted Subsidiaries (other than subject to such customary carve-out matters for which such Person or its Restricted Subsidiaries acts as a guarantor in connection with such Indebtedness, such
as fraud, misappropriation, breach of representation and warranty and misapplication, unless, until and for so long as a claim for payment or performance has been made thereunder (which has not been satisfied) at which time the obligations with
respect to any such customary carve-out shall not be considered Non-Recourse Indebtedness, to the extent that such claim is a liability of such Person for GAAP purposes);
(2) advanced to (i) such Person or its Restricted Subsidiaries that holds investment assets or (ii) any of such Person’s Subsidiaries or group of such Person’s Subsidiaries formed for
the sole purpose of acquiring or holding investment assets, in each case, against which a loan is obtained that is made without recourse to, and with no cross-collateralization against, such Person’s or any of such Person’s Restricted
Subsidiaries’ other assets (other than: (A) cross-collateralization against assets which serve as collateral for other Non-Recourse Indebtedness; and (B) subject to such customary carve-out matters for which such Person or its
Restricted Subsidiaries acts as a guarantor in connection with such Indebtedness, such as fraud, misappropriation, breach of representation and warranty and misapplication, unless, until and for so long as a claim for payment or performance has been
made thereunder (which has not been satisfied) at which time the obligations with respect to any such customary carve-out shall not be considered Non-Recourse Indebtedness, to the extent that such claim is a liability of such Person for GAAP
purposes) and upon complete or partial liquidation of which the loan must be correspondingly completely or partially repaid, as the case may be; or
(3) specifically advanced to finance the acquisition of real property and secured by only the real property to which such Indebtedness relates without recourse to such Person or any of its Restricted
Subsidiaries (other than subject to such customary carve-out matters for which such Person or any of its Restricted Subsidiaries acts as a guarantor in connection with such Indebtedness, such as fraud, misappropriation, breach of representation and
-19-
warranty and misapplication, unless, until and for so long as a claim for payment or performance has been made thereunder (which has not been satisfied) at which time the obligations with respect
to any such customary carve-out shall not be considered Non-Recourse Indebtedness, to the extent that such claim is a liability of such Person for GAAP purposes),
provided
that, notwithstanding the foregoing, to the extent that any Non-Recourse Indebtedness is made with recourse to other assets of a Person or its Restricted Subsidiaries, only that portion of
such Non-Recourse Indebtedness that is recourse to such other assets or Restricted Subsidiaries shall be deemed not to be Non-Recourse Indebtedness.
“
Note Guarantee
” means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.
“
Notes
” means the Initial Notes and more particularly means any Note authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture. For purposes of this Indenture, all references to Notes to be issued or
authenticated upon transfer, replacement or exchange shall be deemed to refer to Notes of the applicable series.
“
Obligations
” means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements,
damages and other liabilities payable under the documentation governing any Indebtedness.
“
OID Legend
” means
the legend set for in Section 2.06(g)(ii) hereof to be placed on each Note issued hereunder that has more than a de minimis amount of original issue discount for U.S. federal income tax purposes.
“
Officer
” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, of each Issuer, or, in the event that an Issuer has no such officers, a person duly authorized under applicable law by the managers, members or a similar body to act on behalf of
such Issuer. A reference to an “Officer” of a Guarantor has a correlative meaning.
“
Officers’
Certificate
” means a certificate signed by or on behalf of a Person by two Officers of such Person.
“
Opinion
of Counsel
” means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuers.
“
Originations Joint Venture
” means one or more joint ventures that constitute Restricted Subsidiaries and that engage in the business of or otherwise conduct activities related to
mortgage loan origination.
“
Originations Joint Venture Total Assets
” means the total assets of the
Originations Joint Ventures of the Company, as determined consistent with the definition of Total Assets.
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“
Parent Stock
” means the stock of a parent entity of the Company, held by
the Company as of the Issue Date or subsequently acquired from a parent entity of the Company.
“
Pari Passu
Debt
” means Indebtedness of the Company or a Restricted Subsidiary that is senior or
pari passu
in right of payment with the Notes. For the purposes of this definition, no Indebtedness will be considered to be senior or junior by
virtue of being secured on a first or junior priority basis.
“
Participant
” means, with respect to the
Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“
Permitted Business
” means the businesses of the Company and its Subsidiaries as described in the prospectus supplement
relating to the offering of the Initial Notes, dated May 29, 2013, including any document incorporated by reference therein, and businesses that are reasonably related, ancillary or complementary thereto or reasonable developments or extensions
thereof.
“
Permitted Funding Indebtedness
” means (i) any Permitted Servicing Advance Facility
Indebtedness, (ii) any Permitted Warehouse Indebtedness, (iii) any Permitted Residual Indebtedness, (iv) any Permitted MSR Indebtedness, (v) any facility that combines any Indebtedness under clauses (i), (ii), (iii) or
(iv) and (vi) any Refinancing of the Indebtedness under clauses (i), (ii), (iii), (iv) or (v) and advanced to the Company or any of its Restricted Subsidiaries based upon, and secured by, Servicing Advances, mortgage related
securities, loans, MSRs, consumer receivables, REO Assets or Residual Interests existing on the Issue Date or created or acquired thereafter,
provided
,
however
, that solely as of the date of the incurrence of such Permitted Funding
Indebtedness, the amount of any excess (determined as of the most recent date for which internal financial statements are available) of (x) the amount of any Indebtedness incurred in accordance with this clause (vi) for which the holder
thereof has contractual recourse to the Company or its Restricted Subsidiaries to satisfy claims with respect thereto over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Indebtedness shall not
be Permitted Funding Indebtedness (but shall not be deemed to be a new incurrence of Indebtedness subject to the provisions under Section 4.09 hereof, except with respect to, and solely to the extent of, any such excess that exists upon the
initial incurrence of such Indebtedness incurred under this clause (vi) which excess shall be entitled to be incurred pursuant to any other provision under Section 4.09 hereof). The amount of any Permitted Funding Indebtedness shall be
determined in accordance with the definition of “Indebtedness.”
“
Permitted Hedging Transactions
”
means entering into instruments and contracts and making margin calls thereon by the Company or any of its Restricted Subsidiaries in reasonable relation to a Permitted Business that are entered into for bona fide hedging purposes and not for
speculative purposes (as determined in good faith by the Board of Directors or senior management of the Company or such Restricted Subsidiary) and shall include, without limitation, interest rate swaps, caps, floors, collars, forward hedge and TBA
contracts or mortgage sale contracts and similar instruments, “interest only” mortgage derivative assets or other mortgage derivative products, future contracts and options on futures contracts on the Eurodollar, Federal Funds, Treasury
bills and Treasury rates and similar financial instruments.
-21-
“
Permitted Holders
” means Sponsor and its Affiliates and members of
management of the Company and its Subsidiaries.
“
Permitted Indebtedness
” means, without duplication, each of
the following:
(1) Indebtedness under the Initial Notes and the Note Guarantees;
(2) Indebtedness incurred pursuant to the Existing Facilities in an aggregate principal amount at any time outstanding not to exceed the
maximum amount available under each Existing Facility as in effect on the Issue Date reduced by any required permanent repayments (which are accompanied by a corresponding permanent commitment reduction) thereunder;
(3) Indebtedness of the Company or any Guarantor under the Working Capital Facility in an aggregate principal amount at any one time
outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) in an amount not to exceed the greater of (x) $100.0 million and
(y) 1.25% of Total Assets;
(4) other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the
Issue Date (other than Indebtedness described in clauses (1) and (2) above);
(5) Permitted Hedging Transactions;
(6) Indebtedness under Currency Agreements;
provided
that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company and its Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(7) Indebtedness owed to and held by the Company or a Restricted Subsidiary,
provided
,
however
, that (a) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Company or any transfer of such Indebtedness (other than to the
Company or a Restricted Subsidiary of the Company) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the obligor thereon and (b) if the Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(8) Indebtedness of
the Company or any Guarantor to a Restricted Subsidiary of the Company for so long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of the Company, in each case subject to no Lien;
provided
that: (a) any Indebtedness
of the Company or any Guarantor to any Restricted Subsidiary of the Company that is not a Guarantor is unsecured and subordinated in right of payment, pursuant to a written agreement, to the Company’s obligations under this Indenture and the
Notes; and (b) if as of any date any Person other than a Restricted Subsidiary of the Company owns or holds, directly or indirectly, any such Indebtedness or any Person holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by the Company;
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(9) [reserved];
(10) Indebtedness of the Company or any of its Subsidiaries represented by letters of credit for the account of the Company or such Subsidiary, as the case may be, in order to provide security for
workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business;
(11) Permitted Funding Indebtedness;
(12) Permitted Securitization Indebtedness
and Indebtedness under Credit Enhancement Agreements;
(13) Refinancing Indebtedness;
(14) (A) any guarantee by the Company or a Guarantor of Indebtedness or other obligations of any Restricted Subsidiary of the Company
(other than Non-Recourse Indebtedness) so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary of the Company is permitted under the terms of this Indenture, or (B) any guarantee by a Restricted Subsidiary of
Indebtedness of the Company (other than Non-Recourse Indebtedness);
provided
that such guarantee is incurred in accordance with Section 4.15 hereof;
(15) Non-Recourse Indebtedness;
(16) Indebtedness incurred by the Company or any
of the Guarantors in connection with the acquisition of a Permitted Business;
provided
that on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof and the use of proceeds therefrom, either
(a) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to
Section 4.09(b); or
(b) the Fixed Charge Coverage Ratio of the Company would not be less than the Fixed
Charge Coverage Ratio of the Company immediately prior to the incurrence of such Indebtedness;
(17) Indebtedness (including
Capitalized Lease Obligations) incurred to finance the development, construction, purchase, lease, repairs, maintenance or improvement of assets (including MSRs and related Servicing Advances) by the Company or any Restricted Subsidiary,
provided
that the Liens securing such Indebtedness may not extend to any other property owned by the Company or any of its Restricted Subsidiaries at the time the Lien is incurred and the Indebtedness secured by the Lien may not be incurred
more than 180 days after the latter of the acquisition or completion of the construction of the property subject to the Lien,
provided
,
further
, that the amount of such Indebtedness does not exceed the Fair Market Value of the assets
purchased or constructed with the proceeds of such Indebtedness;
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(18) Indebtedness arising from agreements of the Company or any of its Restricted
Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(19) Indebtedness consisting of Indebtedness from the repurchase, retirement or other acquisition or retirement for value by the Company of Common Stock (or options, warrants or other rights to acquire
Common Stock) of the Company (or payments to any direct or indirect parent company of the Company to permit distributions to repurchase common equity (or options, warrants or other rights to acquire common equity) thereof) from any future, current
or former officer, director, manager or employee (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Company, any direct or indirect parent company of the Company, or any of its Subsidiaries or
their authorized representatives to the extent described in clause (4) of Section 4.07(b) hereof;
(20) Indebtedness
in respect of overdraft protections and otherwise in connection with customary deposit accounts maintained by the Company or any Restricted Subsidiary with banks and other financial institutions as part of its ordinary cash management program;
(21) the incurrence of Indebtedness by a Foreign Subsidiary in an amount not to exceed at any one time outstanding, together
with any other Indebtedness incurred under this clause (21), 5.0% of Foreign Subsidiary Total Assets;
(22) shares of
Preferred Stock of a Restricted Subsidiary of the Company issued to the Company or another Restricted Subsidiary;
provided
that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such share of Preferred Stock (except to the Company or another Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares or
Preferred Stock not permitted by this clause (22);
(23) Indebtedness of the Company and its Restricted Subsidiary consisting
of the financing of insurance premiums in the ordinary course of business;
(24) Obligations in respect of performance, bid,
surety bonds and completion guarantees provided by the Company and its Restricted Subsidiaries in the ordinary course of business;
(25) [reserved];
(26) to the extent otherwise constituting Indebtedness,
obligations arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of Residual Interests or other loans and other
mortgage-related receivables purchased or originated by the Company or any of its Restricted Subsidiaries arising in the ordinary course of business;
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(27) Guarantees by the Company and its Restricted Subsidiaries of Indebtedness that is
otherwise Permitted Indebtedness;
(28) Indebtedness or Disqualified Capital Stock of the Company and Indebtedness,
Disqualified Capital Stock or Preferred Stock of any of the Company’s Restricted Subsidiaries in an aggregate principal amount or liquidation preference up to 100.0% of the net cash proceeds received by the Company since immediately after the
Issue Date from the issue or sale of Equity Interests of the Company or cash contributed to the capital of the Company (in each case, other than proceeds of Disqualified Capital Stock or sales of Equity Interests to the Company or any of its
Subsidiaries) to the extent that such net cash proceeds or cash have not been applied to Section 4.07 hereof;
provided
,
however
, that the aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock incurred by
Restricted Subsidiaries (other than Guarantors) pursuant to this clause (28) may not exceed $50.0 million in the aggregate at any one time outstanding;
(29) Indebtedness arising out of or to fund purchases of all remaining outstanding asset-backed securities of any Securitization Entity for the purpose of relieving the Company or a Subsidiary of the
Company of the administrative expense of servicing such Securitization Entity;
(30) Indebtedness, Disqualified Stock or
Preferred Stock of a Restricted Subsidiary incurred to finance or assumed in connection with an acquisition in a principal amount not to exceed the greater of (x) $80.0 million and (y) 1.0% of Total Assets in the aggregate at any one time
outstanding together with all other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this clause (30);
(31) Guarantees by the Company and the Restricted Subsidiaries of the Company to owners of servicing rights in the ordinary course of
business;
(32) additional Indebtedness of the Company and its Subsidiaries in an aggregate principal amount not to exceed the
greater of (x) $80.0 million and (y) 1.0% of Total Assets at any one time outstanding; and
(33) (i) the incurrence
of Indebtedness by the Services Business in an amount not to exceed at any one time outstanding, together with any other Indebtedness incurred under this clause (i), the greater of (x) $50.0 million and (y) 25% of Services Business Total
Assets and (ii) the incurrence of Indebtedness by an Originations Joint Venture in an amount not to exceed at any one time outstanding, together with any other Indebtedness incurred under this clause (ii), the greater of (x) $50.0 million
and (y) 25% of Originations Joint Venture Total Assets.
For purposes of determining compliance with Section 4.09
hereof, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (33) above or is entitled to be incurred pursuant to the second paragraph of
such covenant, the Company shall, in its sole discretion, classify (or
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later reclassify) such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on
any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09 hereof.
“
Permitted Investments
” means:
(1) any Investment in the Company or in a Restricted Subsidiary;
(2) any
Investment in cash or Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment (i) such Person becomes a Restricted Subsidiary of the Company that is engaged in a Permitted Business or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;
(4)
Investments by the Company or any Restricted Subsidiary in Securitization Entities, Warehouse Facility Trusts, MSR Facility Trusts, Investments in mortgage related securities or charge-off receivables in the ordinary course of business;
(5) Investments arising out of purchases of all remaining outstanding asset-backed securities of any Securitization Entity for the
purpose of relieving the Company or a Subsidiary of the Company of the administrative expense of servicing such Securitization Entity;
(6) Investments in MSRs;
(7) Investments in Residual Interests in connection
with any Securitization, Warehouse Facility or MSR Facility;
(8) Investments by the Company or any Restricted Subsidiary in
the form of loans extended to non-Affiliate borrowers in connection with any loan origination business of the Company or such Restricted Subsidiary in the ordinary course of business;
(9) any Restricted Investment made as a result of the receipt of securities or other assets of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 4.10 hereof, or any other disposition of assets not constituting an Asset Sale;
(10) Investments made solely in exchange for the issuance of Equity Interests (other than Disqualified Capital Stock) of the Company, or any of its direct or indirect parent entities, or any Unrestricted
Subsidiary;
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(11) any Investments received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;
(12)
Investments in connection with Permitted Hedging Transactions;
(13) repurchases of the Notes;
(14) Investments in and making of Servicing Advances, residential or commercial mortgage loans and Securitization Assets (whether or not
made in conjunction with the acquisition of MSRs);
(15) guarantees of Indebtedness permitted under Section 4.09 hereof;
(16) any transaction to the extent it constitutes an investment that is permitted and made in accordance with the provisions
of Section 4.11(c) hereof (except transactions described in clauses (6) and (9) of Section 4.11(c) hereof);
(17) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or the licensing or contribution
of intellectual property pursuant to joint marketing arrangements with other Persons;
(18) endorsements for collection or
deposit in the ordinary course of business;
(19) any Investment existing on the Issue Date or made pursuant to binding
commitments in effect on the Issue Date or an Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date;
provided
that the amount of any such Investment may only be increased pursuant to this
clause (19) to the extent required by the terms of such Investment as in existence on the Issue Date;
(20) any
Investment by the Company or any Restricted Subsidiary of the Company in any Person where such Investment was acquired by the Company or any Restricted Subsidiary of the Company (a) in exchange for any other Investment or accounts receivable
held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or (b) as a result of a
foreclosure by the Company or any Restricted Subsidiary of the Company with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(21) any Investment by the Company or any Restricted Subsidiary of the Company in a joint venture not to exceed the greater of
(x) $75.0 million and (y) 1.0% of Total Assets;
(22) other Investments having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (22) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash and/or
marketable securities), not to exceed the greater of (x) $100.0 million and (y) 1.0% of Total Assets at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to
subsequent changes in value); and
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(23) purchases of mortgage backed securities or similar debt instruments related to a
Permitted Business.
“
Permitted Liens
” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either: (a) not delinquent for a period of more than 30 days; or
(b) contested in good faith by appropriate proceedings and as to which the Company or its Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation laws,
unemployment insurance laws or similar legislation and other types of social security or obtaining of insurance, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection
therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of
borrowed money);
(4) Liens existing on the Issue Date;
(5) Liens on assets, property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary;
provided
,
however
, that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Restricted Subsidiary;
provided
,
further
,
however
, that such Liens may not extend to any
other property owned by the Company or any Restricted Subsidiary;
(6) Liens on assets or property at the time the Company or
a Restricted Subsidiary acquired the assets or property or within 360 days of such acquisition, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary;
provided
that
the Liens may not extend to any other property owned by the Company or any Restricted Subsidiary (other than assets and property affixed or appurtenant thereto);
provided
,
further
, that the aggregate amount of obligations secured
thereby does not exceed the greater of (x) $80.0 million and (y) 1.25% of Total Assets at any time outstanding and no such Lien may secure obligations in an amount that exceeds the Fair Market Value of the assets or property acquired as of
the date of acquisition;
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(7) Liens securing Indebtedness or other obligations of a Restricted Subsidiary of the
Company owing to the Company or another Restricted Subsidiary of the Company;
(8) leases, subleases, licenses or sublicenses
granted to others which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(9) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;
(10) Liens securing Indebtedness permitted to be incurred under the Working Capital Facility, including any letter of credit
facility relating thereto, that was permitted to be Incurred pursuant to clause (3) of the definition of Permitted Indebtedness;
(11) Liens in favor of the Issuers or any Guarantor;
(12) Liens on the Equity
Interests of any Unrestricted Subsidiary securing Non-Recourse Indebtedness of such Unrestricted Subsidiary;
(13) grants of
software and other technology licenses in the ordinary course of business;
(14) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (4), (5), (6), (28) and (34) of this
definition;
provided
,
however
, that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at
such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (4), (5), (6), (28) and (34) of this definition at the
time the original Lien became a Permitted Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
(15) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods
entered into in the ordinary course of business;
(16) Liens incurred to secure cash management services or to implement cash
pooling arrangements in the ordinary course of business and Liens arising by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository or financial institution;
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(17) any encumbrance or restriction (including put and call arrangements) with respect to
Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(18) any
amounts held by a trustee in the funds and accounts under an indenture securing any revenue bonds issued for the benefit of the Issuers or any Restricted Subsidiary;
(19) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired;
(20) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of other for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar
purposes or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the Permitted Business of the Company and its Subsidiaries and other similar charges or encumbrances in respect of real property not
interfering, in the aggregate, in any material respect with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(21) any interest or title of a lessor under any Capitalized Lease Obligation;
provided
that such Liens do not extend to any property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(22) Liens upon specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(23) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(24) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or any of its Subsidiaries, including rights of offset and set-off;
(25) Liens securing Permitted Hedging Transactions and the costs thereof;
(26)
Liens securing Indebtedness under Currency Agreements;
(27) Liens with respect to obligations at any one time outstanding
that do not exceed the greater of (x) $80.0 million and (y) 1.25% of Total Assets;
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(28) Liens securing Indebtedness incurred to finance the construction or purchase of assets
(excluding MSR Assets) by the Company or any of its Restricted Subsidiaries (including any acquisition of Capital Stock or by means of a merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary),
provided
that any such Lien may not extend to any other property owned by the Company or any of its Restricted Subsidiaries at the time the Lien is incurred and the Indebtedness secured by the Lien may not be incurred more than 180 days after the acquisition
or completion of the construction of the property subject to the Lien,
provided
,
further
, that the amount of Indebtedness secured by such Liens does not exceed the purchase price of the assets purchased or constructed with the proceeds
of such Indebtedness;
(29) Liens on Securitization Assets and the proceeds thereof incurred in connection with Permitted
Securitization Indebtedness or permitted guarantees thereof;
(30) Liens on spread accounts and credit enhancement assets,
Liens on the stock of Restricted Subsidiaries of the Company substantially all of which are spread accounts and credit enhancement assets and Liens on interests in Securitization Entities, in each case incurred in connection with Credit Enhancement
Agreements;
(31) Liens to secure Indebtedness of any Foreign Subsidiary of the Company or Excluded Restricted Subsidiary
securing Indebtedness of such Foreign Subsidiary of the Company or any Excluded Restricted Subsidiary that is permitted by the terms of this Indenture to be incurred;
(32) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection and (ii) in
favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(33) Liens solely on any cash earnest money deposits made by the Issuers or any of their Restricted Subsidiaries in connection with any
letter of intent or purchase agreement;
(34) Liens securing Indebtedness incurred to finance the purchase of MSR Assets
(“
Acquired MSR Assets
”) by the Company or any of its Restricted Subsidiaries (including any acquisition of Capital Stock or by means of a merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary),
provided
that (x) any such Lien may not extend to any other property owned by the Company or any of its Restricted Subsidiaries at the time the Lien is incurred and the Indebtedness secured by the Lien may not be incurred more than 180
days after the acquisition of the property subject to the Lien and (y) the aggregate amount of Indebtedness secured by the Acquired MSR Assets in such purchase does not exceed the greater of $100.0 million and 65.0% of the purchase price of
such Acquired MSR Assets less the amount necessary to pay any fees and expenses related to such acquisition (the purchase price of the Acquired MSR Assets shall be determined by the terms of the contract governing such purchase or, if not specified
in such contract, management in good faith); and
(35) Liens to secure Indebtedness of the Services Business or Originations
Joint Venture that is permitted by the terms of this Indenture to be incurred covering only the assets of the Services Business or Originations Joint Venture, as applicable.
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“
Permitted MSR Indebtedness
” means MSR Indebtedness;
provided
that
solely as of the date of the incurrence of such MSR Indebtedness, the amount of any excess (determined as of the most recent date for which internal financial statements are available) of (x) the amount of any such MSR Indebtedness for which
the holder thereof has contractual recourse to the Company or its Restricted Subsidiaries to satisfy claims with respect to such MSR Indebtedness (excluding recourse for matters such as fraud, misappropriation, breaches of representations and
warranties and misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such MSR Indebtedness shall not be Permitted MSR Indebtedness (but shall not be deemed to be a new incurrence of
Indebtedness subject to the provisions in Section 4.09 hereof, except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness which excess shall be entitled to be incurred
pursuant to any other provisions under Section 4.09 hereof). The amount of any particular Permitted MSR Indebtedness as of any date of determination shall be calculated in accordance with GAAP.
“
Permitted Residual Indebtedness
” means any Indebtedness of the Company or any of its Restricted Subsidiaries under a
Residual Funding Facility;
provided
that solely as of the date of the incurrence of such Permitted Residual Indebtedness, the amount of any excess (determined as of the most recent date for which internal financial statements are available)
of (x) the amount of any such Permitted Residual Indebtedness for which the holder thereof has contractual recourse to the Company or its Restricted Subsidiaries to satisfy claims with respect to such Permitted Residual Indebtedness (not
including customary contractual recourse for breaches of representations and warranties) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Permitted Residual Indebtedness shall be deemed not
to be Permitted Residual Indebtedness (but shall not be deemed to be a new incurrence of Indebtedness subject to the provisions under Section 4.09 hereof except with respect to, and solely to the extent of, any such excess that exists upon the
initial incurrence of such Indebtedness which excess shall be entitled to be incurred pursuant to any other provisions under Section 4.09 hereof) of the Company or such Restricted Subsidiary, as the case may be, at such time.
“
Permitted Securitization Indebtedness
” means Securitization Indebtedness;
provided
that (i) in connection
with any Securitization, any Warehouse Indebtedness or MSR Indebtedness used to finance the purchase, origination or pooling of any Receivables subject to such Securitization is repaid in connection with such Securitization to the extent of the net
proceeds received by the Company and its Restricted Subsidiaries from the applicable Securitization Entity, and (ii) solely as of the date of the incurrence of such Permitted Securitization Indebtedness, the amount of any excess (determined as
of the most recent date for which internal financial statements are available) of (x) the amount of any such Securitization Indebtedness for which the holder thereof has contractual recourse to the Company or its Restricted Subsidiaries to
satisfy claims with respect to such Securitization Indebtedness (excluding recourse for matters such as fraud, misappropriation, breaches of representations and warranties and misapplication) over (y) the aggregate (without duplication of
amounts) Realizable Value of the assets that secure such Securitization Indebtedness shall not be Permitted Securitization Indebtedness (but shall not be deemed to be a new incurrence of Indebtedness subject to the provisions under Section 4.09
hereof except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness which excess shall be entitled to be incurred pursuant to any other provisions under Section 4.09 hereof).
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“
Permitted Servicing Advance Facility Indebtedness
” means any Indebtedness
of the Company or any of its Restricted Subsidiaries incurred under a Servicing Advance Facility;
provided
,
however
, that solely as of the date of the incurrence of such Permitted Servicing Advance Facility Indebtedness, the amount of
any excess (determined as of the most recent date for which internal financial statements are available) of (x) the amount of any such Permitted Servicing Advance Facility Indebtedness for which the holder thereof has contractual recourse
(other than subject to such customary carve-out matters for which such Person or its Restricted Subsidiaries act as a guarantor in connection with such Indebtedness, such as fraud, misappropriation, breaches of representations or warranties and
misapplication, unless, until and for so long as a claim for payment or performance has been made thereunder (which has not been satisfied) at which time the obligations with respect to any such customary carve-out shall not be considered
Non-Recourse Indebtedness, to the extent that such claim is a liability of such Person for GAAP purposes) to the Company or its Restricted Subsidiaries to satisfy claims with respect to such Permitted Servicing Advance Facility Indebtedness over
(y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Permitted Servicing Advance Facility Indebtedness shall not be Permitted Servicing Advance Facility Indebtedness (but shall not be deemed to be a
new incurrence of Indebtedness subject to the provisions under Section 4.09 hereof except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness under a Servicing Advance
Facility which excess shall be entitled to be incurred pursuant to any other provisions under Section 4.09 hereof) of the Company or such Restricted Subsidiary, as the case may be, at such time.
“
Permitted Warehouse Indebtedness
” means Warehouse Indebtedness;
provided
that solely as of the date of the
incurrence of such Warehouse Indebtedness, the amount of any excess (determined as of the most recent date for which internal financial statements are available) of (x) the amount of any such Warehouse Indebtedness for which the holder thereof
has contractual recourse to the Company or its Restricted Subsidiaries to satisfy claims with respect to such Warehouse Indebtedness (excluding recourse for matters such as fraud, misappropriation, breaches of representations and warranties and
misapplication) over (y) the aggregate (without duplication of amounts) Realizable Value of the assets that secure such Warehouse Indebtedness shall not be Permitted Warehouse Indebtedness (but shall not be deemed to be a new incurrence of
Indebtedness subject to the provisions under Section 4.09 hereof except with respect to, and solely to the extent of, any such excess that exists upon the initial incurrence of such Indebtedness which excess shall be entitled to be incurred
pursuant to any other provisions under Section 4.09 hereof). The amount of any particular Permitted Warehouse Indebtedness as of any date of determination shall be calculated in accordance with GAAP.
“
Person
” means an individual, partnership, corporation, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
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“
Preferred Stock
” of any Person means any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.
“
Qualified Capital Stock
” means any Capital Stock that is not Disqualified Capital Stock.
“
Rating Agencies
” means Moody’s and S&P.
“
Realizable Value
” of an asset means (i) with respect to any REO Asset, the value realizable upon the disposition
of such asset as determined by the Company in its reasonable discretion and consistent with customary industry practice and (ii) with respect to any other asset, the lesser of (x) if applicable, the face value of such asset and
(y) the market value of such asset as determined by the Company in accordance with the agreement governing the applicable Permitted Servicing Advance Facility Indebtedness, Permitted Warehouse Indebtedness, Permitted MSR Indebtedness or
Permitted Residual Indebtedness, as the case may be, (or, if such agreement does not contain any related provision, as determined by senior management of the Company in good faith);
provided
,
however
, that the realizable value of any
asset described in clause (i) or (ii) above which an unaffiliated third party has a binding contractual commitment to purchase from the Company or any of its Restricted Subsidiaries shall be the minimum price payable to the Company or such
Restricted Subsidiary for such asset pursuant to such contractual commitment.
“
Receivables
” means loans and
other mortgage-related receivables (including Servicing Receivables and MSRs but excluding Residual Interests and net interest margin securities) purchased or originated by the Company or any Restricted Subsidiary of the Company or, with respect to
Servicing Receivables and MSRs, otherwise arising in the ordinary course of business;
provided
,
however
, that for purposes of determining the amount of a Receivable at any time, such amount shall be determined in accordance with GAAP,
consistently applied, as of the most recent practicable date.
“
Record Date
” for the interest payable on any
applicable Interest Payment Date means May 15 and November 15 (whether or not a Business Day) next preceding such Interest Payment Date.
“
Refinance
” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“
Refinancing Indebtedness
” means any Refinancing by the Company or any Subsidiary of the Company of Indebtedness incurred in accordance with clauses (1), (4), (13), (16), (17),
(28) or (29) of the definition of Permitted Indebtedness, and in each case that does not:
(1) result in an increase
in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company in connection with such Refinancing and amounts of Indebtedness otherwise permitted to be incurred under this Indenture); or
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(2) create Indebtedness with a Weighted Average Life to Maturity that is less than the
Weighted Average Life to Maturity of the Indebtedness being Refinanced; or a final maturity earlier than the final maturity of the Indebtedness being Refinanced;
provided
that (i) such Indebtedness is incurred either (a) by the
Company or any Guarantor or (b) by the Restricted Subsidiary that is the obligor on the Indebtedness being Refinanced and (ii) if such Indebtedness being Refinanced is subordinate or junior to the Notes, then such Refinancing Indebtedness
shall be subordinate to the Notes at least to the same extent and in the same manner as the Indebtedness being Refinanced.
“
REO Asset
” of a Person means a real estate asset owned by such Person and acquired as a result of the foreclosure or
other enforcement of a lien on such asset securing a Servicing Advance or loans and other mortgage-related receivables purchased or originated by the Company or any Restricted Subsidiary of the Company in the ordinary course of business.
“
Residual Funding Facility
” means any funding arrangement with a financial institution or institutions or other lenders
or purchasers under which advances are made to the Company or any Restricted Subsidiary secured by Residual Interests.
“
Residual Interests
” means any residual, subordinated, reserve accounts and retained ownership interest held by the
Company or a Restricted Subsidiary in Securitization Entities, Warehouse Facility Trusts and/or MSR Facility Trusts, regardless of whether required to appear on the face of the consolidated financial statements in accordance with GAAP.
“
Responsible Officer
” means, when used with respect to the Trustee, any officer within the corporate trust department of
the Trustee, including any vice president, any assistant vice president, any trust officer, any assistant 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 is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
“
Restricted Investment
” means an Investment other than a Permitted Investment.
“
Restricted Subsidiary
” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
“
Required Asset Sale
” means any Asset Sale that is a result of a repurchase right or obligation or a
mandatory sale right or obligation related to (i) MSRs, (ii) pools or portfolios of MSRs, or (iii) the Capital Stock of any Person that holds MSRs or pools or portfolios of MSRs, which rights or obligations are either in existence on
the Issue Date (or substantially similar in nature to such rights or obligations in existence on the Issue Date) or pursuant to the guidelines or regulations of a government-sponsored enterprise.
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“
S&P
” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., and its successors.
“
SEC
” means the Securities and Exchange
Commission.
“
Secured Debt
” means any Indebtedness secured by a Lien upon the property of the Company or any
of its Restricted Subsidiaries (regardless of the Realizable Value of such property).
“
Securities Act
” means
the Securities Act of 1933, as amended, or any successor statute or statutes thereto.
“
Securitization
” means
a public or private transfer, sale or financing of Servicing Advances and/or mortgage loans, installment contracts, other loans and any other asset capable of being securitized (collectively, the “
Securitization Assets
”) by which
the Company or any of its Restricted Subsidiaries directly or indirectly securitizes a pool of specified Securitization Assets including, without limitation, 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 (i) any Person (whether or not a Restricted
Subsidiary of the Company) established for the purpose of issuing asset-backed or mortgaged-backed or mortgage pass-through securities of any kind (including collateralized mortgage obligations and net interest margin securities), (ii) any
special purpose Subsidiary established for the purpose of selling, depositing or contributing Securitization Assets into a Person described in clause (i) or holding securities in 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 Guarantor and (iii) any special purpose Subsidiary of the Company formed exclusively for the purpose of
satisfying the requirements of Credit Enhancement Agreements and regardless of whether such Subsidiary is an issuer of securities;
provided
that such Person is not an obligor with respect to any Indebtedness of the Company or any Guarantor
other than under Credit Enhancement Agreements. As of the Issue Date, Nationstar Home Equity Loan Trust 2009-A, Nationstar Home Equity Loan 2009-A REO LLC, Nationstar Mortgage Advance Receivables Trust 2010 ADVI, Nationstar Funding LLC, Nationstar
Residual, LLC, Nationstar Advance Funding LLC, Nationstar Advance Funding II, LLC, Nationstar Agency Advance Funding, LLC and Nationstar Agency Advance Funding Trust 2011-1 shall be deemed to satisfy the requirements of the foregoing definition.
“
Securitization Indebtedness
” means (i) Indebtedness of the Company or any of its Restricted
Subsidiaries incurred pursuant to on-balance sheet Securitizations treated as financings and (ii) any Indebtedness consisting of advances made to the Company or any of its Restricted Subsidiaries based upon securities issued by a Securitization
Entity pursuant to a Securitization and acquired or retained by the Company or any of its Restricted Subsidiaries.
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“
Services Business
” means a Person to which the Company contributes one or
more Subsidiaries or other assets that provides one or more services other than mortgage servicing or loan origination, including but not limited to one or more of REO, field services, valuation and title services and recovery services, after which
contribution the Services Business shall be deemed to include such Person and its Subsidiaries.
“
Services Business
Total Assets
” means the total assets of the Services Business, as determined consistent with the definition of Total Assets.
“
Servicing Advances
” means advances made by the Company or any of its Restricted Subsidiaries in its capacity as servicer of any mortgage-related receivables to fund principal, interest,
escrow, foreclosure, insurance, tax or other payments or advances when the borrower on the underlying receivable is delinquent in making payments on such receivable; to enforce remedies, manage and liquidate REO Assets; or that the Company or any of
its Restricted Subsidiaries otherwise advances in its capacity as servicer.
“
Servicing Advance Facility
”
means any funding arrangement with lenders collateralized in whole or in part by Servicing Advances under which advances are made to the Company or any of its Restricted Subsidiaries based on such collateral.
“
Servicing Receivables
” means rights to collections under mortgage-related receivables, or other rights to reimbursement
of Servicing Advances that the Company or a Restricted Subsidiary of the Company has made in the ordinary course of business and on customary industry terms.
“
Significant Subsidiary
” with respect to any Person, means any Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02 of
Regulation S-X under the Exchange Act, as such regulation is in effect on the Issue Date.
“
Sponsor
” means
Fortress Investment Group LLC.
“
Subsidiary
,” with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person; or
(2) any other
Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.
“
Taxable Income
” means, for any period, the taxable income or loss of the Company for such period for federal income tax purposes.
“
Total Assets
” means the total assets of the Company and its Restricted Subsidiaries, determined on a consolidated basis
in accordance with GAAP, as shown on the most recent balance sheet of the Company with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
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“
Treasury Rate
” means, as determined by the Issuers, as of the applicable
redemption date, the yield to maturity as of such redemption date of constant maturity United States Treasury securities (as compiled and published in the most recent Federal Reserve Statistical Release H. 15 (519) that has become publicly
available at least two business days prior to such redemption date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to December
1, 2017;
provided
,
however
, that if no published maturity exactly corresponds with such date, then the Treasury Rate shall be interpolated or extrapolated on a straight-line basis from the arithmetic mean of the yields for the next
shortest and next longest published maturities;
provided
further
,
however
, that if the period from such redemption date to December 1, 2017, is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.
“
Trust Indenture Act
” means
the Trust Indenture Act of 1939, as amended (15 U.S.C §§ 77aaa-777bbbb).
“
Trustee
” means
Wells Fargo Bank, National Association, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“
Unrestricted Subsidiary
” means any Subsidiary of the Company that is designated by the Board of Directors of the
Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Indebtedness and other Indebtedness that is not recourse to the Company or any Restricted Subsidiary or any of their assets;
(2) except as permitted by Section 4.11 hereof, is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of
operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries.
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“
Voting Stock
” of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“
Warehouse
Facility
” means any financing arrangement of any kind, including, but not limited to, financing arrangements in the form of repurchase facilities, loan agreements, note issuance facilities and commercial paper facilities (excluding in all
cases, Securitizations), with a financial institution or other lender or purchaser exclusively to (i) finance or refinance the purchase, origination or funding by the Company or a Restricted Subsidiary of the Company of, provide funding to the
Company or a Restricted Subsidiary of the Company through the transfer of, loans, mortgage related securities and other mortgage-related receivables purchased or originated by the Company or any Restricted Subsidiary of the Company in the ordinary
course of business, (ii) finance the funding of or refinance Servicing Advances; or (iii) finance or refinance the carrying of REO Assets related to loans and other mortgage-related receivables purchased or originated by the Company or any
Restricted Subsidiary of the Company;
provided
that such purchase, origination, pooling, funding, refinancing and carrying is in the ordinary course of business.
“
Warehouse Facility Trust
” means any Person (whether or not a Restricted Subsidiary of the Company) established for the purpose of issuing notes or other securities in connection with a
Warehouse Facility, which (i) notes and securities are backed by specified Servicing Advances purchased by such Person from the Company or any other Restricted Subsidiary, or (ii) notes and securities are backed by specified mortgage loans
purchased by such Person from the Company or any other Restricted Subsidiary.
“
Warehouse Indebtedness
” means
Indebtedness in connection with a Warehouse Facility; the amount of any particular Warehouse Indebtedness as of any date of determination shall be calculated in accordance with GAAP.
“
Weighted Average Life to Maturity
” means, when applied to any Indebtedness, Disqualified Capital Stock or Preferred
Stock, as the case may be, at any date, the number of years obtained by dividing: (1) the then outstanding aggregate principal amount of such Indebtedness or redemption or similar payment with respect to such Disqualified Capital Stock or
Preferred Stock into; (2) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final
maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.
“
Wholly Owned Restricted Subsidiary
” of any Person means any Restricted Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Foreign
Subsidiary, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly Owned Restricted Subsidiary of such Person.
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“
Working Capital Facility
” means (i) any indentures or credit
facilities or commercial paper facilities with banks or other institutional lenders or investors that provide loans, notes, other credit facilities or commitments permitted under clause (3) of the definition of Permitted Indebtedness and
(ii) any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that extend, replace, refund, refinance, renew or defease any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that alters the maturity thereof, as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise
modified from time to time.
Section 1.02
Other Definitions
.
|
|
|
|
|
Term
|
|
Defined in
Section
|
|
“Acceleration Notes”
|
|
6.02
|
|
“Affiliate Transaction”
|
|
4.11
|
|
“Authentication Order”
|
|
2.02
|
|
“Change of Control Offer”
|
|
4.14
|
|
“Change of Control Payment Date”
|
|
4.14
|
|
“Covenant Defeasance”
|
|
8.03
|
|
“DTC”
|
|
2.03
|
|
“Event of Default”
|
|
6.01
|
|
“Excess Proceeds”
|
|
4.10
|
|
“incur”
|
|
4.09
|
|
“Legal Defeasance”
|
|
8.02
|
|
“Note Register”
|
|
2.03
|
|
“notice of acceleration”
|
|
6.02
|
|
“Offer Amount”
|
|
3.09
|
|
“Offer Period”
|
|
3.09
|
|
“Paying Agent”
|
|
2.03
|
|
“Purchase Date”
|
|
3.09
|
|
“Registrar”
|
|
2.03
|
|
“Restricted Payment”
|
|
4.07
|
|
“Surviving Entity”
|
|
5.01
|
|
“Suspended Covenants”
|
|
4.19
|
Section 1.03
Incorporation by Reference of Trust Indenture Act
.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part
of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture
to be qualified” means this Indenture;
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“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the Note Guarantees means the Issuers and the Guarantors, respectively, and any
successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
Section 1.04
Rules of Construction
.
Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “including” means including without limitation;
(f) “will” shall be interpreted to express a command;
(g) provisions apply to successive events and transactions;
(h) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time;
(i) unless the context otherwise requires,
any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and
(j) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not any particular Article, Section, clause or other subdivision.
Section 1.05
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided,
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such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuers. Proof of
execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the
Issuers, if made in the manner provided in this Section 1.05.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuers in reliance
thereon, whether or not notation of such action is made upon such Note.
(e) The Issuers may, in the circumstances permitted
by the Trust Indenture Act, set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by
vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuers prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by
a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global
Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
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(h) The Issuers may fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give
or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days after such record date.
ARTICLE II
THE NOTES
Section 2.01
Form
and Dating; Terms
.
(a)
General
. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of
Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
(b)
Global Notes
. Notes issued in
global form shall be substantially in the form of
Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form
shall be substantially in the form of
Exhibit A
attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)
Terms
. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and
the Issuers, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
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The Notes shall be subject to repurchase by the Issuers pursuant to an Asset Sale Offer as
provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof. The Notes shall not be redeemable, other than as provided in Article III hereof.
Additional Notes ranking
pari passu
with the Initial Notes may be created and issued from time to time by the Issuers without
notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, waivers, amendments, offers to repurchase, redemption or otherwise as the Initial Notes;
provided
that the Issuers’ ability to issue Additional Notes shall be subject to the Issuers’ compliance with Section 4.09 hereof. Any Additional Notes shall be issued with the benefit of an indenture supplemental to this
Indenture.
(d)
Euroclear and Clearstream Applicable Procedures
. The provisions of the “Operating Procedures of
the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of
beneficial interests in the Global Notes that are held by Participants through Euroclear or Clearstream and such provisions shall supersede the provisions in Section 2.06 hereof, as applicable, to the extent that they conflict with such
provisions, with respect to such transfers.
Section 2.02
Execution and Authentication
.
At least one Officer of each of the Issuers shall execute the Notes on behalf of the applicable Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any
purpose until authenticated substantially in the form of
Exhibit A
attached hereto, as the case may be, by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and
delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Issuer Order authenticate (an
“
Authentication Order
”), and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication Order authenticate and deliver any Additional Notes for an aggregate principal
amount specified in such Authentication Order for such Additional Notes issued hereunder. Such Authentication Order shall specify the amount of the Notes to be authenticated and, in case of any issuance of Additional Notes pursuant to
Section 2.01 hereof, shall certify that such issuance is in compliance with Section 4.09 hereof.
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The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Issuers.
Section 2.03
Registrar and Paying Agent
.
The Issuers shall (i) maintain an office or agency where Notes may be presented for registration of transfer or for exchange
(“
Registrar
”) and (ii) an office or agency where Notes may be presented for payment (“
Paying Agent
”). The Registrar shall keep a register of the Notes (“
Note Register
”) and of their transfer
and exchange. The registered Holder of a Note shall be treated as the owner of the Note for all purposes. The Issuers may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuers may change any Paying Agent or Registrar without prior notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (“
DTC
”) to act as Depositary with respect to the
Global Notes representing the Notes.
The Issuers initially appoint the Trustee to act as the Paying Agent and Registrar for
the Notes and to act as Custodian with respect to the Global Notes.
Section 2.04
Paying Agent to Hold Money in Trust
.
The Issuers shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and will notify the Trustee of any default by the Issuers in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Issuers or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it
as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuers, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05
Holder Lists
.
The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuers shall furnish
to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of
the Holders of Notes and the Issuers shall otherwise comply with Trust Indenture Act Section 312(a).
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Section 2.06
Transfer and Exchange
.
(a)
Transfer and Exchange of Global Notes
. Except as otherwise set forth in this Section 2.06, a Global Note may be
transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless
(i) the Depositary (x) notifies the Issuers that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuers within 90 days, (ii) subject to the procedures of the Depositary, the Issuers, at their option, notify the Trustee in writing that they elect to cause the issuance of the Definitive Notes, or
(iii) there shall have occurred and be continuing a Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above, Definitive Notes delivered in exchange for any Global Note or
beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in (i), (ii) or (iii) above and pursuant to Section 2.06(c) hereof. A Global Note
may not be exchanged for another Note other than as provided in this Section 2.06(a);
provided
,
however
, that beneficial interests in a Global Note may be transferred and exchanged as provided in Sections 2.06(b) or
(c) hereof.
(b)
Transfer and Exchange of Beneficial Interests in the Global Notes
. The transfer and exchange of
beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of beneficial interests in the Global Notes also shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)
Transfer of Beneficial Interests in the Same Global Note
. Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in
a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)
All Other Transfers and Exchanges of Beneficial Interests in Global Notes
. In connection with all transfers
and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in
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an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(c)
Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes
. If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) hereof
and satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers
shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the
Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Notes are so registered.
(d)
Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes
. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer
such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and
increase or cause to be increased the aggregate principal amount of one of the Global Notes.
If any such exchange or transfer
from a Definitive Note to a beneficial interest is effected pursuant to this Section 2.06(d) at a time when a Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e)
Transfer and Exchange of Definitive Notes for Definitive Notes
. Upon request by a Holder of Definitive Notes and such
Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or
surrender to the
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Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):
(i)
Definitive Notes to Definitive Notes
. A Holder of Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of a Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Definitive Notes pursuant to the instructions from the Holder thereof.
(f)
Legends
. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this Indenture:
(i)
Global Note
Legend
. Each Global Note shall bear a legend in substantially the following form (with appropriate changes in the last sentence if DTC is not the Depositary):
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUERS. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
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OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”
(ii)
OID Legend
. Each Note issued hereunder that has more than a de minimis amount of original issue discount for
U.S. federal income tax purposes shall bear a legend in substantially the following form:
“THIS NOTE IS ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A
REQUEST FOR SUCH INFORMATION TO NATIONSTAR MORTGAGE LLC, 350 HIGHLAND DRIVE, LEWISVILLE, TEXAS 75067, ATTENTION: GENERAL COUNSEL.”
(g)
Cancellation and/or Adjustment of Global Notes
. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has
been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h)
General Provisions Relating to Transfers and
Exchanges
.
(i) To permit registrations of transfers and exchanges, the Issuers shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
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(ii) No service charge shall be made to a holder of a beneficial interest in
a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other
than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
(iii) Neither the Registrar nor the Issuers shall be required to register the transfer of or exchange any Note selected
for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of Notes under Section 3.02 hereof and ending at the close of business on the day of such mailing, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuers designated pursuant to Section 4.02 hereof, the Issuers shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations
of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuers shall execute, and the Trustee shall authenticate
and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02 hereof.
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(ix) All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
(x) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(xi) The Trustee shall have no responsibility for any actions taken or not taken by the Depositary.
Section 2.07
Replacement Notes
.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuers and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the
Issuers shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment of
the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers and the Trustee may charge the Holder for their expenses in
replacing a Note.
Every replacement Note is a contractual obligation of the Issuers and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08
Outstanding Notes
.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Issuers or an Affiliate of the Issuers holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
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If the Paying Agent (other than the Issuers, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09
Treasury Notes
.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers, or by any Affiliate of the Issuers, shall be
considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with
respect to the Notes and that the pledgee is not an Issuer a Guarantor or any Affiliate of the Issuers or a Guarantor.
Section 2.10
Temporary Notes
.
Until certificates representing Notes are ready for delivery, the Issuers may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuers consider appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or
beneficial holders, respectively, of Notes under this Indenture.
Section 2.11
Cancellation
.
The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of such cancelled Notes (subject to the record retention requirement of the Exchange Act) in accordance with its customary procedures. The Issuers may not issue new Notes to replace
Notes that they have paid or that have been delivered to the Trustee for cancellation.
Section 2.12
CUSIP and ISIN Numbers
The Issuers in issuing the Notes may use CUSIP numbers and/or ISIN numbers (if then generally in use) and, if so, the Trustee
shall use CUSIP numbers and/or ISIN numbers in notices of redemption as a convenience to Holders;
provided
, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or
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as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Issuers will as promptly as practicable notify the Trustee in writing of any change in the CUSIP number and ISIN numbers.
ARTICLE III
REDEMPTION
Section 3.01
Notices to Trustee
.
If the Issuers elect to redeem Notes
pursuant to Section 3.07 hereof, they shall furnish to the Trustee, at least 10 calendar days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof (unless a shorter notice
shall be agreed to by the Trustee), an Officers’ Certificate from either Issuer setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of the Notes to be redeemed and (iv) the redemption price.
Section 3.02
Selection of
Notes to Be Redeemed or Purchased
.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase
at any time, the Trustee shall select the Notes to be redeemed or purchased (a) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes
are listed or (b) on a
pro rata
basis, by lot or by such other method as the Trustee shall deem fair and appropriate. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption or purchase. If a partial redemption is made with the
proceeds of an Equity Offering, the Trustee shall select the Notes only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures).
The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess of $2,000; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder
are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03
Notice of Redemption
.
Subject to Section 3.09 hereof, the Issuers shall mail or cause to be mailed by first-class mail notices of redemption at least 30 days but not more than 60 days before the redemption date to each
Holder of Notes to be redeemed at such Holder’s registered address. Except as set forth in Section 3.07(b) hereof, notices of redemption may not be conditional.
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The notice shall identify the Notes to be redeemed (including CUSIP number(s)) and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph or subparagraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
(h) that no representation is
made as to the correctness or accuracy of the CUSIP number and ISIN number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with a redemption pursuant to Section 3.07(b) hereof, any condition to such redemption.
At the Issuers’ request, the Trustee shall give the notice of redemption in the Issuers’ name and at their expense;
provided
that the Issuers shall have delivered to the Trustee, at least
10 calendar days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officers’ Certificate of either of the
Issuers requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04
Effect of Notice of Redemption
.
Once notice of redemption is
mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(b) hereof). The notice, if mailed in a
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manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the redemption date, interest
ceases to accrue on Notes or portions of Notes called for redemption, as long as the Issuers have deposited with the Paying Agent funds in satisfaction of the applicable redemption price.
Section 3.05
Deposit of Redemption or Purchase Price
.
Prior to 10:00 a.m.
(New York City time) on the redemption or purchase date, the Issuers shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption price of, and accrued and
unpaid interest on, all Notes to be redeemed or purchased.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption
or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such
principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06
Notes Redeemed or Purchased in Part
.
Upon surrender of a Note that is redeemed or purchased in part, the Issuers shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount
to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased;
provided
that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000
in excess of $2,000. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or an Officers’ Certificate of either Issuer is required for the Trustee to
authenticate such new Note.
Section 3.07
Optional Redemption
.
(a) At any time prior to December 1, 2017, the Issuers may on any one or more occasions redeem all or a part of the Notes, upon not less
than 30 nor more than 60 days’ notice, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest on the Notes redeemed, to the applicable date of redemption
(subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption).
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(b) At any time, or from time to time, on or prior to June 1, 2016, the Issuers may, at
their option, use the net cash proceeds of one or more Equity Offerings to redeem up to 35.0% of the principal amount of all Notes issued at a redemption price equal to 106.500% of the principal amount of the Notes redeemed plus accrued and unpaid
interest to the date of redemption (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption);
provided
that:
(i) at least 65.0% of the principal amount of all Notes issued under this Indenture
remains outstanding immediately after any such redemption; and
(ii) the Issuers make such redemption not more
than 120 days after the consummation of any such Equity Offering.
Notice of any redemption upon any Equity Offering may be given prior to the
completion thereof, and any such redemption or notice may, at the Issuers’ discretion, be subject to one or more conditions precedent.
(c) On or after December 1, 2017, the Issuers may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, on the Notes redeemed, to the applicable date of redemption, if redeemed during the twelve month period beginning on December 1 of the years indicated
below, subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption:
|
|
|
|
|
|
|
Year
|
|
Percentage
|
|
|
2017
|
|
|
103.250
|
%
|
|
2018
|
|
|
101.625
|
%
|
|
2019 and thereafter
|
|
|
100.000
|
%
|
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
(e) In addition to the Issuers’ rights to redeem Notes pursuant to Sections 3.07(a),
(b) and (c) hereof, the Issuers may at any time and from time to time purchase Notes in open-market transactions, tender offers or otherwise.
Section 3.08
Mandatory Redemption
.
The Issuers shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
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Section 3.09
Offers to Repurchase by Application of Excess Proceeds
.
(a) In the event that, pursuant to Section 4.10 hereof, the Issuers shall be required to commence an Asset Sale Offer, it shall
follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is required by applicable law (the “
Offer Period
”). Promptly after the termination of the Offer Period (the “
Purchase Date
”), the Issuers
shall apply all Excess Proceeds (the “
Offer Amount
”) to the purchase of Notes and Pari Passu Debt, as provided in Section 4.10 hereof. Payment for any Notes so purchased shall be made in the same manner as interest payments are
made.
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued
and unpaid interest up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuers shall send, by first-class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders
and holders of Pari Passu Debt. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(i) that an Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length
of time the Asset Sale Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in a minimum denomination of $2,000 or an integral multiple of $1,000 in excess of $2,000;
(vi) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer shall be required to surrender the
Note, with the form entitled “Option of Holder to Elect Purchase,” which is attached hereto as
Exhibit A
, on the reverse of the Note completed, to the Paying Agent at the address specified in the notice (or transfer by book-entry
transfer to the Depositary, as applicable) prior to the close of business on the third Business Day prior to the Purchase Date;
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(vii) that Holders shall be entitled to withdraw their tendered Notes and
their election, if any, to require the Issuers to purchase such Notes;
provided
that the Paying Agent receives, not later than the close of business on the last day of the Offer Period, a facsimile transmission or letter setting forth the
name of the Holder of the Notes, the principal amount of the Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes and Pari Passu Debt surrendered by the holders thereof exceeds the
Offer Amount, the Trustee shall select the Notes and the Issuers shall select such Pari Passu Debt to be purchased on a
pro rata
basis based on the accreted value or principal amount of the Notes or such other Pari Passu Debt tendered (with
such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased);
(ix) that Holders whose certificated Notes were purchased only in part shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased; and
(x) any other instructions, as determined by the Issuers, consistent with this Section 3.09 and Section 4.10
hereof, that a Holder must follow.
(e) On or before the Purchase Date, the Issuers shall, to the extent lawful,
(1) accept for payment, on a
pro rata
basis as described in clause (d)(viii) of this Section 3.09, the Offer Amount of Notes and, if required, Pari Passu Debt or portions thereof validly tendered pursuant to the Asset Sale Offer, or
if less than the Offer Amount has been tendered, all Notes and Pari Passu Debt tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate of either Issuer stating the
aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuers, the Depositary or the Paying Agent, as
the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note,
and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the
contrary, no Opinion of Counsel or Officers’ Certificate of either Issuer is required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing
the same indebtedness to the extent not repurchased;
provided
, that each such new Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000, in excess of $2,000. Any Note not so accepted shall be promptly mailed
or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
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(g) Prior to noon New York City time on the Purchase Date, the Issuers shall deposit with
the Trustee or with the Paying Agent, money sufficient to pay the purchase price of and accrued and unpaid interest on all Notes to be purchased on that Purchase Date. The Trustee or the Paying Agent shall promptly return to the Issuers any money
deposited with the Trustee or the Paying Agent, as applicable, by the Issuers in excess of the amount necessary to pay the purchase price of, and accrued and unpaid interest on, all Notes to be redeemed.
(h) Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase pursuant to this
Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
ARTICLE IV
COVENANTS
Section
4.01
Payment of Notes
.
The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuers or a Subsidiary of the Issuers, holds as of noon New
York City time on the due date money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to the then applicable interest rate on the Notes to the extent lawful; they shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02
Maintenance of Office or Agency
.
The Issuers shall maintain in the Borough of Manhattan in the City of New York an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) required under Section 2.03 hereof where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuers in respect of the
Notes and this Indenture may be served. The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations;
provided
that no such designation or rescission shall in any manner relieve the Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan in the City of New York for such purposes. The Issuers shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
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The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or
agency of the Issuers in accordance with Section 2.03 hereof.
Section 4.03
Reports and Other Information
.
(a) Whether or not required by the rules and regulations of the SEC, so long as any notes are outstanding, the Company will furnish to
the Holders of Notes or cause the Trustee to furnish to the Holders of Notes within the time periods specified in the SEC’s rules and regulations:
(i) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company was required to file such reports; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company was required to
file such reports.
The availability of the foregoing materials on the SEC’s EDGAR service (or its successor) shall be deemed to satisfy
the Company’s delivery obligation.
(b) All such reports will be prepared in all material respects in accordance with all
of the rules and regulations applicable to such reports. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants, and each
Form 10-Q and 10-K will include a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that describes the financial condition and results of operations of the Company and its consolidated
Subsidiaries. The Company will file a copy of each of the reports referred to in clauses (i) and (ii) of Section 4.03(a) with the SEC for public availability within the time periods specified in the rules and regulations applicable to
such reports (unless the SEC will not accept such filing).
(c) In the event that any direct or indirect parent of the Company
becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent;
provided
that
such reporting is accompanied by consolidating information that presents in reasonable detail the differences between the information relating to such parent and any of its Subsidiaries other than the Company and its Subsidiaries, on the one hand,
and the information related to the Company, the Note Guarantors and the other Subsidiaries of the Company on a standalone basis, on the other hand.
(d) If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in
paragraphs (a) and (b) of this Section 4.03 with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Company will not take any action for the purpose of causing the SEC not to accept any
such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company will post the reports referred to in paragraphs (a) and (b) of this Section 4.03 on a website within the
time periods that would apply if the Company was required to file those reports with the SEC.
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(e) If, at any time, the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then any “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” or other comparable section, shall provide an analysis and discussion of the material differences with respect to the
financial condition and results of operations of the Company and its Restricted Subsidiaries as compared to the Company and its Subsidiaries (including such Unrestricted Subsidiaries).
(f) Notwithstanding anything to the contrary in this Indenture, the Company will not be deemed to have failed to comply with any of its
obligations described under clause (3) of Section 6.01(a) until 30 days after the date on which any report hereunder is due.
(g) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Issuers’ compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 4.04
Compliance Certificate
.
(a) The Issuers and each Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal year ending
after the Issue Date, a certificate from an Officer of each Issuer and each such Guarantor, stating that a review of the activities of (i) the Issuers and their Restricted Subsidiaries, in the case of a certificate from the Issuers, or,
(ii) such Guarantor and their Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuers and their Restricted Subsidiaries or such
Guarantors and their Restricted Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuers
and their Restricted Subsidiaries or such Guarantors and their Restricted Subsidiaries have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuers and their Restricted
Subsidiaries or such Guarantors and their Restricted Subsidiaries are taking or proposes to take with respect thereto)
(b)
When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Issuers or any Subsidiary of the Issuers gives any notice or takes any other action with respect to a
claimed Default, the Issuers shall, within five Business Days after becoming aware of such Default, deliver written notice to the Trustee specifying such event and what action the Issuers propose to take with respect thereto.
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Section 4.05
Taxes
.
The Issuers shall pay, and shall cause each of their Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good
faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06
Stay, Extension and Usury Laws
.
Each of the Issuers and each
of the Guarantors covenants (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and each of the Issuers and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no
such law has been enacted.
Section 4.07
Limitation on Restricted Payments
.
(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of the
Company) on or in respect of shares of the Company’s Capital Stock to holders of such Capital Stock;
(2) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock (other than in exchange for Qualified Capital Stock of the Company);
(3) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior
to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness (other than Indebtedness owed by the Company or any Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company or the
Company) of the Company or any Restricted Subsidiary that is subordinate or junior in right of payment to the Notes; or
(4) make any Restricted Investment
if at the time of such action (each such payments and other actions set forth in clauses (1) through (4) of this Section 4.07(a) being collectively referred to as, a “
Restricted
Payment
”) or immediately after giving effect thereto,
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(i) a Default or an Event of Default shall have occurred and be
continuing; or
(ii) immediately after giving effect thereto on a
pro forma
basis, the Company is
not able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(b), or
(iii)
the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (the amount expended for such purposes, if other than in cash, being the Fair Market Value of such property) shall exceed the
sum of:
(a) 50.0% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the
beginning of the fiscal quarter in which the 2010 Issue Date occurred to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100.0% of such deficit); plus
(b) 100.0% of the aggregate net cash
proceeds and the Fair Market Value of marketable securities or other property received by the Company from any Person since the 2010 Issue Date including:
(i) any contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Capital Stock and Excluded Contributions);
(ii) the issuance or sale of convertible or exchangeable Disqualified Capital Stock or convertible or exchangeable debt securities of the
Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Capital Stock or debt securities) sold to a Subsidiary of the Company); plus
(c) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus
(d) to the extent that any Unrestricted Subsidiary of the Company is designated as a Restricted Subsidiary of the Company after the Issue
Date, the Fair Market Value of the Company’s Investment in such Subsidiary as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Issue Date.
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(b) Section 4.07(a) hereof shall not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of
such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice under this Indenture;
(2) the making of any Restricted Payment, either (i) solely in exchange for shares of Qualified Capital Stock of the Company,
(ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company or (iii) through the application of a substantially
concurrent cash capital contribution received by the Company from its shareholders (which capital contribution (to the extent so used) shall be excluded from the calculation of amounts under clause (iii)(b) of Section 4.07(a) hereof);
(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the
Company or any Restricted Subsidiary (including the acquisition of any shares of Disqualified Capital Stock of the Company) that is unsecured or contractually subordinated to the Notes or to any Note Guarantee by exchange for, or out of the net cash
proceeds from a substantially concurrent incurrence of Refinancing Indebtedness;
provided
,
however
, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
(4) so long as no Default or Event of Default shall have occurred and be
continuing, the repurchase, retirement or other acquisition or retirement for value by the Company of Common Stock (or options, warrants or other rights to acquire Common Stock) of the Company (or payments to any direct or indirect parent company of
the Company to permit distributions to repurchase common equity (or options, warrants or other rights to acquire common equity) thereof) of such direct or indirect parent company) from any future, current or former officer, director, manager or
employee (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Company, any direct or indirect parent company of the Company, or any of its Subsidiaries or their authorized representatives, in an
aggregate amount not to exceed $10.0 million in any calendar year
plus
(i) the aggregate net cash proceeds received by the Company after the Issue Date from the issuance of such Equity Interests to, or the exercise of options to purchase
such Equity Interests by, any current or former director, officer or employee of the Company or any Restricted Subsidiary of the Company (
provided
that the amount of such net cash proceeds received by the Company and utilized pursuant to this
clause (4)(i) for any such repurchase, redemption, acquisition or retirement will be excluded from clause (iii)(b) of Section 4.07(a) hereof) and (ii) the proceeds of “key-man” life insurance policies
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that are used to make such redemptions or repurchases;
provided
that amounts available pursuant to this clause (4) to be utilized for Restricted Payments during any twelve-month
period may be carried forward and utilized in the next succeeding twelve-month period and
provided
,
further
, that the cancellation of Indebtedness owing to the Company from any future, current or former officer, director, manager or
employee (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Company or any of its Restricted Subsidiaries in connection with any repurchase of Capital Stock of such entities (or warrants or
options or rights to acquire such Capital Stock) will not be deemed to constitute a Restricted Payment under this Indenture;
(5) (a) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or warrants to the extent such Equity
Interests represent a portion of the exercise price of those stock options or warrants and (b) repurchases of Equity Interests or options to purchase Equity Interests deemed to occur in connection with the exercise of stock options to the
extent necessary to pay applicable withholding taxes;
(6) the declaration and payment of dividends or making of distributions
by the Company to, or the making of loans to, its direct parent company in amounts required for the Company’s direct or indirect parent entities (including a corporation organized to hold interests in the Company in connection with the public
issuance of shares) to pay, without duplication as to amounts of:
(a) franchise taxes and other fees, taxes and expenses
required to maintain the corporate existence of the Company and its direct and indirect parent entities plus $500,000 per year;
(b) federal, state, and local income taxes of the direct or indirect parent entity, or of or on a consolidated or combined tax group of
which the direct or indirect parent is the common parent, in each case to the extent such income taxes are attributable to the income of the Company and its Restricted Subsidiaries and not directly payable by the Company or its Restricted
Subsidiaries and, to the extent of the amount actually received from any of the Company’s Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries of the
Company;
provided
that (i) in determining such taxes, the effect thereon of any net operating loss carryforwards or other carryforwards or tax attributes, such as alternative minimum tax carryforwards, shall be taken into account,
(ii) if there is an adjustment in the amount of Taxable Income for any periods, an appropriate positive or negative adjustment shall be made to the amount of distributions or loans permitted pursuant to this clause 6(b), and if the
adjustment is negative, then the permitted distribution on loan for succeeding periods shall be reduced (without duplication of reductions due to clause 6(b)(i) hereof and with appropriate adjustments for any contributions to the Company in respect
of such negative adjustment to Taxable Income) to take into account such negative amount until such negative
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amount is reduced to zero, (iii) any distribution or loan in respect of such taxes other than amounts relating to estimated payments shall be computed by a nationally recognized accounting
firm and (iv) in no event will such dividends and loans exceed the amounts that the Company and its Restricted Subsidiaries and/or Unrestricted Subsidiaries (as applicable) would have paid as a stand-alone group;
(c) customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent of the Company to the
extent such salaries, bonuses and other benefits are attributable to the ownership or operations of the Company and its Restricted Subsidiaries; and
(d) general corporate overhead expenses and other expenses incidental to being a public company (including, without limitation, audit, listing and legal expense) of any direct or indirect parent company
of the Company to the extent such expenses are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(7) so long as no Default or Event of Default shall have occurred and be continuing, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of
Disqualified Capital Stock of the Company or any Restricted Subsidiary of the Company issued on or after the Issue Date in accordance with Section 4.09(b) hereof;
(8) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests
on a
pro rata
basis;
(9) any repricing or issuance of employee stock options or the adoption of bonus arrangements, in
each case in connection with the issuance of the Notes, and payments pursuant to such arrangements;
(10) Restricted Payments
that are made with Excluded Contributions;
(11) Restricted Payments made with Net Cash Proceeds from Asset Sales remaining
after application thereof as required by Section 4.10 hereof (including after the making by the Issuers of any Asset Sale Offer required to be made by the Issuers pursuant to such covenant and the purchase of all Notes tendered therein);
(12) upon occurrence of a Change of Control and within 60 days after the completion of the Change of Control Offer
pursuant to Section 4.14 hereof (including the purchase of all Notes tendered), any purchase or redemption of Obligations of the Company that are subordinate or junior in right of payment to the Notes required pursuant to the terms thereof as a
result of such Change of Control at a purchase or redemption price not to exceed 101.0% of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any;
provided
,
however
, that (A) at the time of such
purchase or redemption, no
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Default or Event of Default shall have occurred and be continuing (or would result therefrom) and (B) such purchase or redemption is not made, directly or indirectly, from the proceeds of
(or made in anticipation of) any issuance of Indebtedness by the Company or any Restricted Subsidiary of the Company;
(13)
Restricted Payments in an amount not to exceed $100.0 million;
(14) the payment of dividends on the Company’s Common
Stock (or the payment of dividends to any direct or indirect parent of the Company to fund the payment of dividends on its Common Stock) after the Issue Date, of up to 6.0% per annum of the net proceeds received by or contributed to the Company
(or any direct or indirect parent of the Company and contributed to the Company) since the 2010 Issue Date in any public equity offering, other than public equity offerings registered on Form S-8 and other than any public sale constituting an
Excluded Contribution,
provided
,
however
, that the amount of any such net proceeds that is utilized for any such Restricted Payment shall be excluded from the calculation of amounts under clause (iii)(b) of Section 4.07(a) hereof;
and
(15) any transfer, dividend or other distribution of Parent Stock or any proceeds from a transfer thereof to a direct or
indirect parent entity of the Company.
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of Section 4.07(a) hereof, amounts expended pursuant to clauses (1), (4), (7) and (13) of this Section 4.07(b) shall be included in such calculation.
Section 4.08
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
.
(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances or to pay any Indebtedness or other obligation owed to the Company or any Restricted Subsidiary of the
Company; or
(3) transfer any of its property or assets to the Company or any other Restricted Subsidiary of the Company.
(b) Section 4.08(a) hereof shall not apply to encumbrances or restrictions existing under or by reason of:
(1) applicable law, rule, regulation or order;
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(2) this Indenture and the Notes;
(3) customary non-assignment provisions of any contract or any lease of any Restricted Subsidiary of the Company;
(4) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(5) the Existing Facilities
as each exists on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof;
provided
that any restrictions imposed pursuant to any such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are ordinary and customary with respect to facilities similar to the Existing Facilities (under the relevant circumstances) and will not materially
affect the Company’s ability to make anticipated principal and interest payments on the Notes (as determined in good faith by the Board of Directors of the Company);
(6) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(7) restrictions on the transfer of assets (other than cash) held in a Restricted Subsidiary of the Company imposed under any agreement governing Indebtedness incurred in accordance with this Indenture;
(8) provisions in agreements evidencing Permitted Funding Indebtedness that impose restrictions on the collateral securing
such Indebtedness;
(9) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by
the holder of such Lien;
(10) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this
Indenture to any Person pending the closing of such sale;
(11) any agreement or instrument governing Capital Stock of any
Person that is acquired;
(12) the requirements of any Securitization, Warehouse Facility or MSR Facility that are exclusively
applicable to any Securitization Entity, Warehouse Facility Trust, MSR Facility Trust or special purpose Subsidiary of the Company formed in connection therewith;
(13) customary provisions in joint venture and other similar agreements relating solely to such joint venture;
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(14) customary provisions in leases, licenses and other agreements entered into in the
ordinary course of business;
(15) restrictions on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(16) other Indebtedness, Disqualified Capital Stock or Preferred Stock of
Foreign Subsidiaries of the Company permitted to be incurred subsequent to the Issue Date pursuant to Section 4.09 hereof that impose restrictions solely on the Foreign Subsidiaries party thereto;
provided
that the restrictions will not
materially affect the ability of the Issuers to pay the principal, interest and premium, if any, on the Notes, as determined in good faith by the Company; and
(17) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or
obligations referred to in clauses (2) through (4) and (6) through (14) of this Section 4.08(b);
provided
that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements
or refinancings are, in the good faith judgment of the Company’s Board of Directors whose judgment shall be conclusively binding, not materially more restrictive with respect to such dividend and other payment restrictions, taken as a whole,
than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
Section 4.09
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, “
incur
”) any Indebtedness (including, without limitation, Acquired Indebtedness) and the Company will not permit any of its Restricted Subsidiaries to issue any shares of
Preferred Stock, in each case other than Permitted Indebtedness.
(b) Notwithstanding Section 4.09(a) hereof, if no
Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any of its Restricted Subsidiaries may incur Indebtedness (including, without limitation,
Acquired Indebtedness), and the Company’s Restricted Subsidiaries may issue Preferred Stock, in each case if on the date of the incurrence of such Indebtedness or Preferred Stock, after giving effect to the incurrence thereof and the use of
proceeds thereof the Fixed Charge Coverage Ratio of the Company is at least 2.0 to 1.0.
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Section 4.10
Asset Sales
.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, other than a Required Asset Sale or any Legacy Loan Portfolio Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to
the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75.0%
of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the
Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets (or a third party on behalf of
such transferee) pursuant to a customary novation or other agreement that releases the Company or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into
cash within 180 days of the receipt thereof, to the extent of the cash received in that conversion; and
(C) any Designated
Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause
(C) that is at that time outstanding, not to exceed the greater of (x) $125.0 million and (y) 2.5% of Total Assets, at the time of the receipt of such Designated Noncash Consideration (with the Fair Market Value of each item of
Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, including a Required Asset Sale or a Legacy Loan
Portfolio Sale, the Issuers (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at their or its option, in any combination of the following:
(1) to prepay or repay Secured Debt or Indebtedness of any Restricted Subsidiary of the Company that is not a Guarantor, and, if the
Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
provided
,
however
, that, except in the case of Net Proceeds from a
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Legacy Loan Portfolio Sale, Net Proceeds may not be applied to the prepayment or repayment of Non-Recourse Indebtedness, Indebtedness under Existing Facilities or Permitted Funding Indebtedness,
other than Non-Recourse Indebtedness, Indebtedness under Existing Facilities or Permitted Funding Indebtedness secured by a Lien on the asset or assets that were subject to such Asset Sale;
(2) to prepay or repay Pari Passu Debt permitted to be incurred pursuant to this Indenture to the extent required by the terms thereof,
and, in the case of Pari Passu Debt under revolving credit facilities or other similar Indebtedness, to correspondingly reduce commitments with respect thereto;
(3) to make one or more offers to the holders of the Notes (and, at the option of the Company, the holders of Pari Passu Debt) to purchase Notes (and such other Pari Passu Debt) pursuant to and subject to
the conditions applicable to Asset Sale Offers described below;
(4) to acquire all or substantially all of the assets of, or
any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company; or
(5) to acquire other assets (including, without limitation, MSRs and Securitization Assets) that are used or useful in a Permitted
Business.
(c) Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit
borrowings and/or borrowings under Permitted Funding Indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) will constitute “
Excess Proceeds
.” When the aggregate amount of Excess Proceeds
exceeds $60.0 million, within 30 days thereof, the Issuers shall make an Asset Sale Offer to all holders of Notes and all holders of Pari Passu Debt containing provisions similar to those set forth in this Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Debt that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100.0% of
the principal amount (or, in the case of any other Pari Passu Debt offered at a significant original issue discount, 100.0% of the accreted value thereof, if permitted by the relevant indenture or other agreement governing such Pari Passu Debt) plus
accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Debt to be purchased on a
pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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(e) The Issuers shall 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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this
Indenture by virtue of such compliance.
Section 4.11
Limitation on Transactions with Affiliates
.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each an
“
Affiliate Transaction
”), involving aggregate payment of consideration in excess of $5.0 million other than:
(1) Affiliate Transactions permitted pursuant to Section 4.11(c); and
(2) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or such Subsidiary.
(b) In addition, all Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market
Value in excess of $7.5 million shall be approved by the Board of Directors of the Company or any direct or indirect parent of the Company or such Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that
such Board of Directors has determined that such transaction complies with the provisions of Section 4.11(a).
(c) The
restrictions set forth in Sections 4.11(a) and 4.11(b) hereof shall not apply to:
(1) any employment or consulting agreement,
employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business or approved in good faith by the Board of Directors
of the Company and payments pursuant thereto and the issuance of Equity Interests of the Company (other than Disqualified Capital Stock) to directors and employees pursuant to stock option or stock ownership plans;
(2) transactions between or among the Company and any of its Restricted Subsidiaries or between or among such Restricted Subsidiaries;
(3) transactions between the Company or one of its Restricted Subsidiaries and any Person in which the Company or one of its
Restricted Subsidiaries has made an Investment in the ordinary course of business and such Person is an Affiliate solely because of such Investment;
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(4) transactions between the Company or one of its Restricted Subsidiaries and any Person in
which the Company or one of its Restricted Subsidiaries holds an interest as a joint venture partner and such Person is an Affiliate because of such interest;
(5) any agreement as in effect as of the Issue Date or any amendment thereto or any transactions or payments contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date (as determined by the Board of Directors of the Company in
good faith);
(6) Restricted Payments permitted by this Indenture;
(7) sales of Qualified Capital Stock and capital contributions to the Company from one or more holders of its Capital Stock;
(8) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any
stockholders’ agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided
,
however
, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date
shall only be permitted by this clause (8) to the extent that the terms of any such amendment or new agreement, taken as a whole, are not disadvantageous to the Holders of the Notes in any material respect (as determined by the Board of
Directors of the Company in good faith);
(9) transactions in which the Company or any Restricted Subsidiary of the Company, as
the case may be, receives an opinion from a nationally recognized investment banking, appraisal or accounting firm that such Affiliate Transaction is fair, from a financial standpoint, to the Company or such Restricted Subsidiary as approved in good
faith by the Board of Directors of the Company;
(10) (i) the provision of mortgage servicing and similar services to
Affiliates in the ordinary course of business and otherwise not prohibited by this Indenture that are fair to the Company and its Restricted Subsidiaries (as determined by the Company in good faith) or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party (as determined by the Company in good faith) and (ii) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods
or services that are Affiliates, in each case in the ordinary course of business and otherwise in
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compliance with the terms of this Indenture that are fair to the Company and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior
management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(11) payments or loans (or cancellation of loans) to employees of the Company, any of its direct or indirect parent entities or any Restricted Subsidiary of the Company (as determined by the Board of
Directors of the Company in good faith);
(12) guarantees by the Sponsor or any direct and indirect parent of the Company for
Obligations of the Company and its Restricted Subsidiaries, including the guarantees given by Nationstar Mortgage Holdings Inc., Nationstar Sub1 LLC and Nationstar Sub2 LLC;
(13) investments by the Sponsor in securities of the Company or any Restricted Subsidiary of the Company so long as the investment is being offered generally to other investors on the same or more
favorable terms or the securities are acquired in market transactions; and
(14) Co-Investment Transactions as approved by the
Board of Directors of the Company or any direct or indirect parent of the Company.
Section 4.12
Limitation on Liens
.
The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or permit or suffer to exist any Liens of any kind on the assets of the Company or its Restricted Subsidiaries securing Indebtedness of the Company or its Restricted Subsidiaries unless:
(1) in the case of Liens securing Indebtedness of the Company or its Restricted Subsidiaries that is expressly subordinate or junior in
right of payment to the Notes, the Notes are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably secured except for:
(A)
Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date;
(B) Liens
securing the Notes and the Note Guarantees;
(C) Liens securing Non-Recourse Indebtedness;
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(D) Liens securing Permitted Funding Indebtedness so long as any such Lien shall encumber
only (i) the assets acquired or originated with the proceeds of such Indebtedness, assets that consist of Servicing Advances, MSRs, loans, mortgage related securities and other mortgage related receivables, REO Assets, Residual Assets and other
similar assets subject to and pledged to secure such Indebtedness and (ii) any intangible contract rights and proceeds of, and other, related documents, records and assets directly related to the assets set forth in the preceding clause
(i) of this clause (D);
(E) Liens securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that
has been secured by a Lien permitted under this Indenture and that has been incurred in accordance with the provisions of this Indenture;
provided
,
however
, that such Liens: (i) are no less favorable to the Holders than the Liens
in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any property or assets of the Company or its Restricted Subsidiaries not securing the Indebtedness so Refinanced (or property of the same type and value); and
(F) Permitted Liens.
Section 4.13
Conduct of Business
.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole..
Section 4.14
Offer to Repurchase Upon Change of Control
.
(a) Upon the occurrence of a Change of Control, each Holder shall have the right to require that the Issuers purchase all or a portion of
such Holder’s Notes pursuant to the offer described below (the “
Change of Control Offer
”), at a purchase price equal to 101.0% of the principal amount of the Notes redeemed plus accrued and unpaid interest to the date of
purchase (subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption).
(b) Within 30 days following the date upon which a Change of Control occurs, the Issuers shall send, by first class mail, a notice
to each Holder, with a copy to the Trustee or otherwise in accordance with the procedures of DTC, which notice shall govern the terms of the Change of Control Offer. Such notice shall state the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such
Change of Control Offer will be accepted for payment by the Issuers;
(2) the purchase price (the “
Change of Control
Payment
”);
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(3) the purchase date, which must be no earlier than 30 days nor later than
60 days from the date such notice is mailed, other than as may be required by law (the “
Change of Control Payment Date
”);
(4) that any Note not tendered or accepted for payment will remain outstanding and continue to accrue interest;
(5) that unless the Issuers default in the payment of the Change of Control Payment; all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date;
(6) that Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be
required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase,” which is attached hereto as
Exhibit A
, on the reverse of the Note completed, to the Paying Agent at the address specified in the notice (or
transfer by book-entry transfer to the Depositary, as applicable) prior to the close of business on the third Business Day prior to the Change of Control Payment Date;
(7) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes;
provided
that the Paying Agent receives, not later than the
close of business on the last day of the offer period, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its
tendered Notes and its election to have such Notes purchased;
(8) that if the Issuers are redeeming less than all of the
Notes, the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered, and that the unpurchased portion of the Notes must be equal to $2,000 or an
integral multiple of $1,000 in excess of $2,000; and
(9) any other instructions, as determined by the Issuers, consistent with
this Section 4.14, that a Holder must follow.
(c) The Issuers shall not be required to make a Change of Control Offer
upon a Change of Control 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 Indenture applicable to a Change of Control Offer made by the
Issuers and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Sections 3.07(a) and 3.07(c) hereof, unless and until there is a default in payment of
the applicable redemption price.
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(d) The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 4.14, the Issuers shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.
Section 4.15
Limitation on Guarantees by Restricted Subsidiaries
.
(a) The Company shall not permit any Domestic Restricted Subsidiary, other than (i) an Excluded Restricted Subsidiary or
(ii) an MSR Facility Trust, a Securitization Entity or a Warehouse Facility Trust, directly or indirectly, by way of the pledge of any intercompany note or otherwise, to assume, guarantee or in any other manner become liable with respect to any
Indebtedness of the Company of the type described in clauses (1) and (2) of the definition of “Indebtedness” (other than Permitted Funding Indebtedness to the extent such Domestic Restricted Subsidiary is a guarantor thereunder),
unless, in any such case:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this
Indenture, the form of which is attached as
Exhibit B
hereto, providing a Note Guarantee of payment of the Notes by such Subsidiary; and
(2) if such assumption, guarantee or other liability of such Restricted Subsidiary is provided in respect of Indebtedness that is expressly subordinated to the Notes, the guarantee or other instrument
provided by such Restricted Subsidiary in respect of such subordinated Indebtedness shall be subordinated to such Note Guarantee pursuant to subordination provisions no less favorable to the Holders of the Notes than those contained in this
Indenture.
(b) Notwithstanding Section 4.15(a), any such Note Guarantee by a Restricted Subsidiary of the Company of the
Notes shall provide by its terms that it shall be automatically and unconditionally released and discharged (pursuant to Section 10.07 hereof), without any further action required on the part of the Trustee or any Holder, upon:
(1) the unconditional release of such Restricted Subsidiary from its liability in respect of the Indebtedness in connection with which
such Note Guarantee was executed and delivered pursuant to Section 4.15(a); or
(2) any sale or other disposition (by
merger or otherwise) to any Person that is not a Restricted Subsidiary of the Company of all of the Company’s Capital Stock in, or all or substantially all of the assets of, such Restricted Subsidiary;
provided
that: (a) such sale
or disposition of such Capital Stock or assets is otherwise in compliance with the terms of this Indenture; and (b) such assumption, guarantee or other liability of such Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
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Section 4.16
Limitation on Sale and Leaseback Transactions
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided
that the Company and any Restricted Subsidiary of the Company may enter into a sale and leaseback transaction if:
(1) the Company or that Restricted Subsidiary, as applicable, could have (a) incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction pursuant
to Section 4.09 hereof and (b) incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof;
(2)
the consideration of that sale and leaseback transaction is at least equal to the Fair Market Value of the property that is the subject of that sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback transaction is permitted by, and the Company applies the proceeds of such
transaction in compliance with Section 4.10 hereof.
Section 4.17
Designation of Unrestricted and Restricted Subsidiaries
(a) The Board of Directors of the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted
Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or
under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
(b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary
will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an officers’ certificate certifying that such designation complied with
the preceding conditions and was permitted by Section 4.07 hereof. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company;
provided
that such designation
will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under
Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would occur and be continuing following such designation.
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Section 4.18
Restrictions on Activities of the Co-Issuer
The Co-Issuer may not hold any assets, become liable for any obligations or engage in any business activities;
provided
that the
Co-Issuer may be a co-obligor of (i) the Notes and (ii) any other Indebtedness incurred by the Company pursuant to Section 4.09 hereof and in each case may engage in any activities directly related or necessary in connection
therewith.
Section 4.19
Covenant Suspension
During any period of time that the Notes are rated Investment Grade and no Default or Event of Default has occurred and is then continuing, the Company and its Restricted Subsidiaries will not be subject
to Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.15 and 5.01(a)(2) hereof (collectively, the “
Suspended Covenants
”). In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any
period of time as a result of the preceding sentence and, subsequently, one or both of the Rating Agencies, as applicable, withdraws its ratings or downgrades the ratings assigned to the Notes such that the Notes are not rated Investment Grade, then
the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, it being understood that no actions taken by (or omissions of) the Company or any of its Restricted Subsidiaries during the suspension period
shall constitute a Default or an Event of Default under the Suspended Covenants. Furthermore, after the time of reinstatement of the Suspended Covenants upon such withdrawal or downgrade, calculations with respect to Restricted Payments will be made
in accordance with the terms of Section 4.07 as though such covenant had been in effect during the entire period of time from the Issue Date.
ARTICLE V
SUCCESSORS
Section 5.01
Merger, Consolidation or Sale of All or Substantially All Assets
.
(a) (i) Neither Issuer, in a single transaction or series of related transactions, may consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all such Issuer’s assets, to any Person and (ii) the Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or
otherwise dispose of (or cause or permit any Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a consolidated basis for the Company and
the Company’s Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
(1)
either:
(A) the Company, or such Issuer, as the case may be, shall be the surviving or continuing entity; or
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(B) the Person (if other than the Company or such Issuer, as the case may be) formed by such
consolidation or into which the Company or such Issuer, as the case may be, is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company or such Issuer, as the
case may be, and of the Company’s Subsidiaries substantially as an entirety (the “
Surviving Entity
”):
(i) shall be a Person organized and validly existing under the laws of the United States or any State thereof or the District of
Columbia;
provided
that in the case where the Surviving Entity is not a corporation, a co-obligor of the Notes is a corporation; and
(ii) shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal
of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes and this Indenture on the part of the Company or such Issuer, as the case may be, to be performed or observed;
(2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) of this
Section 5.01(a) (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company, such Issuer, or such Surviving Entity, as the case
may be, shall either (x) be able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(b) hereof or (y) the Company shall have a pro forma Fixed Charge Coverage Ratio that would not be less than the actual Fixed
Charge Coverage Ratio of the Company immediately prior to such transaction;
(3) immediately before and immediately after
giving effect to such transaction and the assumption contemplated by clause (1)(B)(ii) of this Section 5.01(a) (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and
(4) the Company, such Issuer or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of
Section 5.01(a), the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company the Capital
Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
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(c) Notwithstanding the foregoing, Section 5.01(a) shall not apply to:
(1) a merger of the Company or such Issuer, as the case may be, with an Affiliate solely for the purpose of reorganizing the Company in
another jurisdiction or converting the Company into a corporation;
(2) any consolidation or merger, or any sale, assignment,
transfer, conveyance, lease or other disposition of assets between or among the Company and its Restricted Subsidiaries; or
(3) any Required Asset Sale or Legacy Loan Portfolio Sale that complies with Section 4.10 hereof.
Section 5.02
Surviving Entity Substituted
.
Upon any consolidation, combination or merger or any transfer of all or substantially all of the assets of the Company or such Issuer, as the case may be, in accordance with Section 5.01 hereof, in
which the Company or such Issuer, as the case may be, is not the continuing entity, the successor Person formed by such consolidation or into which the Company or such Issuer, as the case may be, is merged or to which such conveyance, lease or
transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such Issuer, as the case may be, under this Indenture and the Notes with the same effect as if such Surviving Entity had been named
as such.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01
Events of Default
.
(a) An “
Event of Default
” wherever used herein, means any one of the following events (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):
(1) the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days;
(2) the failure to pay the principal on any Notes, when such principal becomes due and payable, at maturity, upon redemption
or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer);
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(3) a default in the observance or performance of any other covenant or agreement contained
in this Indenture and such default continues for a period of 60 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25.0% of the then
outstanding principal amount of all Notes issued under this Indenture;
(4) the failure to pay at final maturity (giving effect
to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness (other than Non-Recourse Indebtedness) of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity
of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by the Company or such Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final maturity or which has been accelerated, aggregates $25.0 million or more at any time;
(5) one or more judgments in an aggregate amount in excess of $25.0 million shall have been rendered against the Company or any of
its Restricted Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable (other than any judgments as to which, and only to the extent, a
reputable insurance company has acknowledged coverage of such judgments in writing);
(6) the Issuers or any of their
Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or insolvent;
(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under applicable Bankruptcy law;
(iii) consents to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due;
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(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i) is for relief against the Issuers or any of their Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, in a proceeding in which the Issuers or any such Restricted Subsidiaries, that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuers or any of their Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or for all or substantially all of the property of the Issuers or any of their Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
(iii) orders the
liquidation of the Issuers or any of their Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(8) the Note Guarantee of any Significant Subsidiary of the Company shall for any reason cease to be in full force and effect or be
declared null and void or any responsible officer of any Guarantor that is a Significant Subsidiary of the Company, as the case may be, denies that it has any further liability under its Note Guarantee or gives notice to such effect, other than by
reason of the termination of this Indenture or the release of any such Note Guarantee in accordance with this Indenture.
Section 6.02
Acceleration
.
(a) If an Event of Default (other than an Event of Default specified in clause (6) or (7) of
Section 6.01(a) hereof with respect to the Company) shall occur and be continuing, the Trustee or the Holders of at least 25.0% in principal amount of the then outstanding Notes issued under this Indenture may declare the principal of, premium,
if any, and interest on all the Notes issued under this Indenture to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that it is a “
notice of acceleration
,” or the
“
Acceleration Notice
,” and the same shall become immediately due and payable.
(b) If an Event of Default
specified in clause (6) or (7) of Section 6.01(a) hereof with respect to the Company occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the then outstanding Notes
issued under this Indenture shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
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(c) At any time after a declaration of acceleration with respect to the Notes as described
in Section 6.02(a) or 6.02(b) hereof, the Holders of a majority in principal amount of all Notes issued under this Indenture may rescind and cancel such declaration and its consequences:
(1) if the rescission would not conflict with any judgment or decree;
(2) if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(4)
if the Company has paid the Trustee (including its agents and counsel) its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and
(5) in the event of the cure or waiver of an Event of Default of the type described in clause (6) or (7) of Section 6.01(a) hereof, the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 6.03
Other Remedies
.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04
Waiver of Past Defaults
.
Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default in the payment of
the principal of, premium, if any, or interest on, any Note held by a non-consenting Holder (including in connection with an Asset Sale Offer or a Change of Control Offer);
provided
, subject to Section 6.02 hereof, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall affect any subsequent or other Default or impair any right consequent thereto.
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Section 6.05
Control by Majority
.
Subject to all provisions of this Indenture and applicable law, the Holders of a majority in 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 of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts
with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.
Section 6.06
Rights of Holders of Notes to Receive Payment
.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if
any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.07
Collection Suit by Trustee
.
If an Event of Default specified in Section 6.01(a)(1) or (2) 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 Issuers for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.08
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this 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 proceedings, the Issuers, 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 has been instituted.
Section
6.09
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
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other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.10
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Note 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 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 or by the Holders, as
the case may be.
Section 6.11
Trustee May File Proofs of Claim
.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers (or
any other obligor upon the Notes including the Guarantors), their creditors or their property and shall be entitled and empowered to participate as members in any official committee of creditors appointed in such matter and to collect, receive and
distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall
consent 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 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of
the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.12
Undertaking for Costs
.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable
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attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10.0% in principal amount of the then outstanding Notes.
Section 6.13
Trustee May Enforce Claims without Possession of Notes
.
All rights of action and claims under this Indenture or any of 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 or judgment, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Note in respect of which such judgment has been
recovered.
Section 6.14
Limitation on Suits
.
Subject to Section 6.06 hereof, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(a) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(b) in the case of clause (2) of Section 6.01 hereof, Holders of at least 25.0% of the then outstanding principal amount of all Notes issued under this Indenture have requested the Trustee to
pursue the remedy;
(c) Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability
or expense;
(d) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of
security or indemnity; and
(e) Holders of a majority in principal amount of the total outstanding Notes have not given the
Trustee a direction inconsistent with such request within such 60-day period.
A Holder of Notes may not use this Indenture to
prejudice the rights of another Holder of Notes or to obtain a preference or priority over another Holder.
Section 6.15
Priorities
.
If the Trustee or any agent collects any money or property pursuant to this Article VI, it shall pay out
the money in the following order:
(a) to the Trustee, such agent, their agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee or such Agent and the costs and expenses of collection;
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(b) to Holders of the Notes for amounts due and unpaid on the Notes for principal, premium
and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium and interest, respectively; and
(c) to the Issuers or to such party as a court of competent jurisdiction shall direct including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.15.
ARTICLE VII
TRUSTEE
Section 7.01
Duties of Trustee
.
(a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the Trustee shall
not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of
any of the Holders of the Notes unless the Holders have offered to the Trustee reasonable indemnity or security against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02
Rights of Trustee
.
(a) The Trustee may conclusively rely upon, and shall be fully protected in acting or refraining from acting upon any document believed
by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney at the sole
cost of the Issuers and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate of either of the Issuers or an Opinion of Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers shall be sufficient if signed by an Officer of the Issuers.
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(f) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(g) The Trustee shall not be
deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Notes and this Indenture
(h) In no event shall the Trustee be
responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Issuers and any Guarantor deliver an Officers’ Certificate setting forth the names of
individuals and/or titles of officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person specified as so authorized in any such
certificate previously delivered and not superseded.
(k) The permissive rights of the Trustee to take certain actions under
this Indenture shall not be construed as a duty unless so specified herein.
(l) The Trustee shall not be required to give any
bond or surety in respect of the performance of its powers and duties hereunder.
Section 7.03
Individual Rights of Trustee
.
Subject to the Trust Indenture Act, the Trustee in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest as described in the Trust Indenture
Act, it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
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Section 7.04
Trustee’s Disclaimer
.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Issuers’ use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers’ direction under any provision of this Indenture, it shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05
Notice of Defaults
.
If a Default occurs and is continuing and if it is actually known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default within 90 days after it occurs. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders notice of any continuing Default if and so long as
a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. The Trustee shall not be deemed to know of any Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is such a Default is received by the Trustee at the Corporate Trust Office of the Trustee.
Section 7.06
Reports by Trustee to Holders of the Notes
.
Within 60 days
after each May 15, beginning with the May 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies
with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with
Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by Trust Indenture Act Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Issuers and filed with the SEC and each stock exchange on which the Notes are listed in accordance with
Trust Indenture Act Section 313(d). The Issuers shall promptly notify the Trustee in writing when the Notes are listed on any stock exchange and of any delisting thereof.
Section 7.07
Compensation and Indemnity
.
The Issuers shall pay to the
Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
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The Issuers and the Guarantors, jointly and severally, shall indemnify the Trustee for, and
hold the Trustee harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance of its
duties hereunder (including the costs and expenses of enforcing this Indenture against any Issuer or any Guarantor (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, any Issuer or any Guarantor,
or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuers shall not relieve the Issuers of their obligations hereunder. The Issuers shall defend the claim and the Trustee may have separate counsel and the Issuers shall pay the fees and expenses of such counsel. The Issuers need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence.
Notwithstanding the provisions of Section 4.12 hereof, to secure the payment obligations of the Issuers and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes
on all money or property held or collected by the Trustee from the Issuers or any Guarantor, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(6) or
(7) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
The obligations of the Issuers under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee.
Section 7.08
Replacement of Trustee
.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing not less than 30 days prior to the effective date of such removal. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof or Section 310 of the Trust Indenture Act;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee (at the Issuers’ expense), the Issuers or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails
to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee;
provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers’ obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09
Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall
be the successor Trustee.
Section 7.10
Eligibility; Disqualification
.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who
satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 7.11
Preferential Collection of Claims Against Issuer
.
The
Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) to the extent indicated therein.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01
Option to Effect Legal Defeasance or
Covenant Defeasance
.
The Issuers may, at their option and at any time, elect to have either Section 8.02 or
Section 8.03 hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
Section
8.02
Legal Defeasance and Discharge
.
Upon the Issuers’ exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding
Notes and Note Guarantees on the date the conditions set forth below are satisfied (“
Legal Defeasance
”). For this purpose, Legal Defeasance means that the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture including that of the Guarantors (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of
Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04 hereof;
(b) the Issuers’ 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 under Article II;
(c) the rights, powers, trusts, duties and immunities of the Trustee and the Issuers’ obligations in connection therewith; and
(d) this Section 8.02.
Subject to compliance with this Article VIII, the Issuers may exercise their option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
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Section 8.03
Covenant Defeasance
.
Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuers and the
Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15 and 4.16 hereof and Sections 5.01(a)(2) and (4) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (“
Covenant Defeasance
”), and the Notes
shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the
Issuers may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason
of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and any Note Guarantees shall be unaffected thereby. In addition, upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(4), 6.01(a)(5), 6.01(a)(6) (solely with respect to the Issuers and their Restricted Subsidiaries that are Significant Subsidiaries), 6.01(a)(7)
(solely with respect to the Issuers and their Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(a)(8) hereof shall not constitute Events of Default.
Section 8.04
Conditions to Legal or Covenant Defeasance
.
The following
shall be the conditions to the application of either Section 8.02 or Section 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
(1) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in Dollars, non-callable U.S.
government obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable redemption date, as the case may be, and any other amounts owing under this Indenture (in the case of an optional redemption date prior to electing to exercise either Legal Defeasance or Covenant
Defeasance, the Issuers have delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on such redemption date);
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(2) in the case of Legal Defeasance, the Issuers shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions:
(a) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such opinion of counsel shall confirm that, subject to customary assumptions and exclusions, the Holders 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;
(3) in the case of Covenant Defeasance, the Issuers shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than Default or Event of Default resulting from the borrowing of funds to be applied to such
deposit (and the incurrence of Liens associated with any such borrowings));
(5) such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(6) the Issuers shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Issuers with the intent of preferring the Holders over any other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuers or others; and
(7) the Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
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Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) of this
Section 8.04 with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers.
Section 8.05
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
.
Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the “
Trustee
”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including an Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium,
if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The
Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon the
written request of the Issuers any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(2)(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06
Repayment to Issuer
.
Subject to any abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium, if any, or interest on
any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Issuers on their written request or (if then held by the Issuers) shall be discharged from such
trust; and the Holder of such Note shall thereafter look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, shall
thereupon cease.
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Section 8.07
Reinstatement
.
If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers’ obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
provided
that, if the Issuers make any
payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Without Consent of Holders of Notes
.
Notwithstanding Section 9.02 hereof, the Issuers, any Guarantor (with respect to a Note Guarantee or this Indenture) and
the Trustee may amend or supplement this Indenture and any Note Guarantee or Notes without the consent of any Holder:
(1) cure
any mistakes, ambiguities, defects or inconsistencies;
(2) provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of this Indenture relating to the form of the Notes (including the related definitions) in a manner that does not materially adversely affect any Holder;
(3) provide for the assumption of the Issuers’ or a Guarantor’s obligations to the Holders of the Notes;
(4) comply with Section 5.01 hereof;
(5) make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not materially adversely affect the legal rights under this Indenture of any Holder of the
Notes or to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuers or any Guarantor;
(6) comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(7) provide for the issuance of Notes issued after the Issue Date in accordance with the limitations set forth in this Indenture;
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(8) allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the Notes or to effect the release of any Guarantor from any of its obligations under its Note Guarantee or this Indenture (to the extent permitted by this Indenture);
(9) secure the Notes;
(10) evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee hereunder pursuant to the requirements hereof;
(11) conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of Notes” section
of the prospectus supplement relating to the offering of the Initial Notes, dated May 29, 2013, including to the extent that such provision in such “Description of Notes” section was intended to be a verbatim recitation of a provision of
this Indenture, the Note Guarantees or the Notes; or
(12) to modify the restrictions on the transferability of any Notes, and
the procedures for resales and other transfers of the Notes to reflect any change in applicable law or regulation (or the interpretation thereof) or to provide alternative procedures in compliance with applicable law and practices relating to the
resale or other transfer of restricted securities generally.
Upon the request of the Issuers accompanied by a resolution of
their Boards of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 9.06 hereof, the Trustee shall join with the Issuers and the Guarantors in
the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to
enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. Notwithstanding the foregoing, neither an Opinion of Counsel nor an Officers’ Certificate of either of the
Issuers shall be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor and the Trustee of a supplemental indenture to this Indenture, the form of which is attached as
Exhibit
B
hereto.
Section 9.02
With Consent of Holders of Notes
.
Except as provided below in this Section 9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes and the Note Guarantees with the consent of the Holders of
at least a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes), and, subject to Sections 6.04 and 6.06 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then
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outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes).
Sections 2.08 and 2.09 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
Upon the request of the Issuers accompanied by a resolution of their Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06 hereof, the Trustee shall join with the Issuers and the Guarantors, if
applicable, in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be
necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuers shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of
Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted interest, on any Notes;
(3) reduce the principal of or change
or have the effect of changing the fixed final maturity of any Notes, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefore (other than provisions relating to Sections 3.09, 4.10 and 4.14
hereof);
(4) make any Notes payable in money other than that stated in the Notes;
(5) make any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes issued under this Indenture to waive Defaults or Events of Default;
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(6) waive a Default or Event of Default in the payment of principal of, or interest or
premium, if any, on the Notes (except a rescission of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration);
(7) after the Issuers’ obligation to purchase Notes arises thereunder, amend, change or modify in any material respect the obligation
of the Issuers to make and consummate a Change of Control Offer in the event of a Change of Control or modify any of the provisions or definitions with respect thereto; or
(8) modify or change any provision of this Indenture or the related definitions affecting the ranking of the Notes in a manner which adversely affects the Holders.
Section 9.03
Compliance with Trust Indenture Act
.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.
Section 9.04
Revocation and Effect of Consents
.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuers may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to
such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date
unless the consent of the requisite number of Holders has been obtained.
Section 9.05
Notation on or Exchange of Notes
.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers
in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
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Failure to make the appropriate notation or issue a new Note shall not affect the validity
and effect of such amendment, supplement or waiver.
Section 9.06
Trustee to Sign Amendments, etc
.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuers may not sign an amendment, supplement or waiver until their respective Boards approves it. In executing any amendment, supplement or waiver, the Trustee shall
receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’ Certificate of either of the Issuers and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuers and any Guarantors party thereto,
enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03 hereof). Notwithstanding the foregoing, neither an Opinion of Counsel nor an Officers’
Certificate of either of the Issuers shall be required for the Trustee to execute any amendment or supplement adding a new Guarantor under this Indenture.
ARTICLE X
GUARANTEES
Section 10.01
Note Guarantee
.
Subject to this Article X, each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its respective successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder, that: (a) the principal of, interest and premium, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuers to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance which might otherwise
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constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by full payment or complete
performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the
Issuers or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the
Issuers for liquidation, reorganization, should the Issuers become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any
part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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The Note Guarantee issued by any Guarantor shall be a general unsecured senior obligation of
such Guarantor and shall rank equally in right of payment with all existing and future unsubordinated indebtedness of such Guarantor, if any.
Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 10.02
Limitation on Guarantor Liability
.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law or fraudulent conveyance laws to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations
of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article X, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to
a contribution from each other Guarantor in an amount equal to such other Guarantor’s
pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with
GAAP.
Section 10.03
Execution and Delivery
.
To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture (or any supplemental indenture attached hereto as
Exhibit B
) shall be
executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee
set forth in Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature is on this Indenture (or any supplemental indenture attached hereto as
Exhibit B
) no longer holds
that office at the time the Trustee authenticates the Note, such Note Guarantee shall be valid nevertheless.
The delivery of
any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.15 hereof, the Issuers shall cause any newly created or acquired Restricted Subsidiary that is not a
Securitization Entity, a Warehouse Facility Trust, an MSR Facility Trust or an Excluded Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article X, to the extent applicable.
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Section 10.04
Subrogation
.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuers in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01 hereof;
provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the
Issuers under this Indenture or the Notes shall have been paid in full.
Section 10.05
Benefits Acknowledged
.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this
Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 10.06
Merge, Consolidation or Sale of All or Substantially All Assets
.
A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Issuers or another Guarantor, unless:
(1) except in the case of a merger entered into solely for the purpose of reincorporating a Guarantor in another jurisdiction, immediately
after giving effect to that transaction, no Default or Event of Default shall have occurred and be continuing; and
(2)
either:
(a) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such
consolidation or merger (if not the Guarantor) assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture satisfactory to the Trustee; or
(b) the Net Proceeds of such sale or other disposition are either (i) applied in accordance with the applicable provisions of this
Indenture or (ii) not required to be applied in accordance with any provision of this Indenture.
Section 10.07
Release of Note
Guarantees
.
A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no
further action by such Guarantor, the Issuers or the Trustee is required for the release of such Guarantor’s Note Guarantee, in the following circumstances:
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(1) in connection with any sale, transfer or other disposition of all or substantially all
of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition
does not violate Section 4.10 hereof;
(2) in connection with any sale, transfer or other disposition of all of the
Capital Stock of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition
does not violate Section 4.10 hereof;
(3) if the Company designates any Restricted Subsidiary of the Company that is a
Guarantor to be an Unrestricted Subsidiary of the Company in accordance with Section 4.17 hereof or if any Restricted Subsidiary is no longer required to be a Guarantor pursuant to Section 4.15 hereof; or
(4) upon the exercise of Legal Defeasance by the Issuers or pursuant to Article XI hereof; and
in connection with such release, either of the Issuers shall deliver to the Trustee an Officers’ Certificate of such Guarantor confirming the
effective date of such release and stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge
.
This Indenture shall be discharged and shall cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in this Indenture)
as to all Notes when:
(1) either:
(a) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from such trust) have been delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, will become due and payable within one year or are to be called for redemption within one year under
irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
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the name and at the expense of the Issuers, and the Issuers have irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Issuers directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as the case may be;
(2) the Issuers have paid all other
sums payable under this Indenture by the Issuers; and
(3) the Issuers have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to clause
(1)(b) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive.
Section 11.02
Application of Trust Money
.
Subject to the provisions of Section 8.06 hereof, all funds deposited with the
Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including an Issuer or a
Guarantor acting as their own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal of, premium, if any, or interest for whose payment such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any funds
in accordance with Section 11.01 hereof 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 Issuers’ and any
Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided
that if the Issuers have made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the funds held by the Trustee or Paying Agent.
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ARTICLE XII
MISCELLANEOUS
Section 12.01
Trust Indenture Act Controls
.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c), the
imposed duties shall control.
Section 12.02
Notices
.
Any notice or communication by the Issuers, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return
receipt requested), PDF transmission, fax or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuers and/or any Guarantor:
c/o Nationstar Mortgage LLC
350 Highland Drive
Lewisville, Texas 75067
Fax No.: (469) 549-2085
Attention: General Counsel
If to the Trustee:
Wells Fargo Bank, National Association
Corporate Trust Services
750 N. Saint Paul Place Suite 1750
MAC T9263-170
Dallas, Texas 75201
Fax No.: (214)756-7401
The Issuers, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery;
provided
that any notice or communication delivered to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
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If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it;
provided
that any notices or communications to the Trustee shall be deemed effective only upon actual receipt thereof.
If the Issuers mail a notice or communication to Holders, they shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03
Communication by Holders of Notes with Other Holders of Notes
.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this
Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 12.04
Certificate and Opinion as to Conditions Precedent
.
Upon
any request or application by the Issuers or any of the Guarantors to the Trustee to take any action under this Indenture, the Issuers or such Guarantor, as the case may be, shall furnish to the Trustee:
(a) An Officers’ Certificate of either of the Issuers in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been
satisfied; and
(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied;
provided
,
however
, that such Opinion of Counsel shall not be required in connection with the authentication and delivery by the Trustee of the Initial Notes.
Section 12.05
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof or Trust
Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
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(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a
statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case
of an Opinion of Counsel, may be limited to reliance on an Officers’ Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 12.06
Rules by Trustee and Agents
.
The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07
No Personal Liability of Directors, Officers, Employees and Stockholders
.
No director, officer, employee, incorporator or stockholder of the Issuers or any Guarantors shall have any liability for any obligation of the Issuers or any Guarantors, respectively, under the Notes,
the Note Guarantees and this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation;
provided
that the foregoing shall not limit any Guarantor’s obligations under its Note Guarantee. Each
Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 12.08
Governing Law; Consent to Jurisdiction and Service
.
THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
To the fullest extent permitted by applicable law, the Issuers hereby irrevocably submit to the jurisdiction of any federal or State
court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Notes and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. The Issuers irrevocably waive, to the fullest extent permitted by law, any objection which they may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient
forum. The Issuers agree that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Issuers, and may be enforced in any courts to the jurisdiction of which the Issuers are subject by a
suit upon such judgment, provided, that service of process is effected
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upon the Issuers in the manner specified herein or as otherwise permitted by law. To the extent the Issuers have or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, the Issuers hereby irrevocably waive such immunity in respect of its
obligations under this Indenture to the extent permitted by law.
Section 12.09
Waiver of Jury Trial
.
EACH OF THE ISSUERS, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.10
Force Majeure
.
In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 12.11
No Adverse Interpretation of Other Agreements
.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuers or their Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
Section 12.12
Successors
.
All agreements of the Issuers in this Indenture and the Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06 hereof.
Section 12.13
Severability
.
In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
-111-
Section 12.14
Counterpart Originals
.
This Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 12.15
Table of Contents, Headings, etc
.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.16
Qualification of Indenture
.
The Issuers and the Guarantors shall qualify this Indenture under the Trust Indenture Act and shall pay all reasonable costs
and expenses (including attorneys’ fees and expenses for the Issuers, the Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and
printing this Indenture and the Notes. The Trustee shall be entitled to receive from the Issuers and the Guarantors any such Officers’ Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any
such qualification of this Indenture under the Trust Indenture Act.
Section 12.17
U.S.A. Patriot Act
.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
[
signature pages follow
]
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N
ATIONSTAR
M
ORTGAGE
LLC
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By:
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/s/ David C. Hisey
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Name: David C. Hisey
Title:
Chief Financial Officer
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N
ATIONSTAR
C
APITAL
C
ORPORATION
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Executive Officer
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GUARANTORS:
N
ATIONSTAR
M
ORTGAGE
H
OLDINGS
I
NC
.
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By:
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/s/ David C. Hisey
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Name: David C. Hisey
Title:
Chief Financial Officer
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N
ATIONSTAR
S
UB
1 LLC
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Executive Officer
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N
ATIONSTAR
S
UB
2 LLC
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Executive Officer
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[
Signature
Page—Indenture
]
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C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III
G
ENERAL
P
ARTNER
, LLC
H
ARWOOD
S
ERVICE
C
OMPANY
, LLC
H
ARWOOD
I
NSURANCE
S
ERVICES
, LLC
H
ARWOOD
S
ERVICE
C
OMPANY
OF
G
EORGIA
,
LLC
H
ARWOOD
S
ERVICE
C
OMPANY
OF
N
EW
J
ERSEY
, LLC
H
OMESELECT
S
ETTLEMENT
S
OLUTIONS
, LLC
N
ATIONSTAR
2009 E
QUITY
C
ORPORATION
N
ATIONSTAR
E
QUITY
C
ORPORATION
N
ATIONSTAR
I
NDUSTRIAL
L
OAN
C
OMPANY
N
ATIONSTAR
I
NDUSTRIAL
L
OAN
C
ORPORATION
NSM R
ECOVERY
S
ERVICES
I
NC
.
NSM F
ORECLOSURE
S
ERVICES
I
NC
.
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Financial Officer
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C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III,
L.P.
By: C
ENTEX
L
AND
V
ISTA
R
IDGE
L
EWISVILLE
III
G
ENERAL
P
ARTNER
, LLC,
its General Partner
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Financial Officer
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CHAMPION MORTGAGE LLC
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By:
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/s/ Jay Bray
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Name: Jay Bray
Title: Chief
Executive Officer
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[
Signature
Page—Indenture
]
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W
ELLS
F
ARGO
B
ANK
, N
ATIONAL
A
SSOCIATION
,
as Trustee
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By:
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/s/ John C. Stohlmann
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Name: John C. Stohlmann
Title: Vice President
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[
Signature
Page—Indenture
]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture]
A-1
CUSIP [ ]
ISIN [ ]
1
GLOBAL NOTE
6.500% Senior Notes due 2022
NATIONSTAR MORTGAGE LLC
NATIONSTAR CAPITAL CORPORATION
promise to pay to
or registered assigns, the principal sum of
United States Dollars on June 1, 2022.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
A-2
IN WITNESS HEREOF, the Issuers have caused this instrument to be duly executed as of the
day of ,
2013.
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N
ATIONSTAR
M
ORTGAGE
LLC
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By:
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Name:
Title:
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N
ATIONSTAR
C
APITAL
C
ORPORATION
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By:
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Name:
Title:
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A-3
This is one of the Notes referred to in the within-mentioned Indenture:
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W
ELLS
F
ARGO
B
ANK
, N
ATIONAL
A
SSOCIATION
,
as Trustee
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By:
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Authorized Signatory
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A-4
[Back of Note]
6.500% Senior Notes due 2022
Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST.
Nationstar Mortgage LLC (the “
Company
”) and Nationstar Capital Corporation (the “
Co-Issuer
” and, together with the Company, the “
Issuers
”), promise to pay interest on the principal amount of this
Note at 6.500% per annum from May 31, 2013 until maturity. The Issuers will pay interest semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an
“
Interest Payment Date
”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance;
provided
that the first Interest Payment Date
shall be December 1, 2013
. The Issuers will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers will pay interest on the Notes to the Persons who are
registered Holders of Notes at the close of business on the May 15 and November 15 (whether or not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in the Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders,
provided
that payment
by wire transfer of immediately available funds will be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers
or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Issuers may change any Paying Agent or Registrar without notice to the Holders. The Issuers or any of their Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuers issued the Notes under an Indenture, dated as of May 31, 2013 (the “
Indenture
”), among the Issuers, the Guarantors named therein and the Trustee. This Note is
one of a duly authorized issue of notes of the Issuers designated as their 6.500% Senior Notes due 2022. The Issuers shall be entitled to issue Additional Notes pursuant to Sections 2.01 and 4.09
A-5
of the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “
Trust
Indenture Act
”). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) At any time prior to December 1, 2017, the Issuers may on any one or more occasions redeem all or a part of the Notes, upon not less
than 30 nor more than 60 days’ notice, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest on the Notes redeemed, to the applicable date of redemption
(subject to the rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption).
(b) At any time, or from time to time, on or prior to June 1, 2016, the Issuers may, at their option, use the net cash proceeds of one or
more Equity Offerings to redeem up to 35.0% of the principal amount of all Notes issued at a redemption price equal to 106.500% of the principal amount of the Notes redeemed plus accrued and unpaid interest to the date of redemption (subject to the
rights of Holders of Notes on the relevant regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption);
provided
that:
(i) at least 65.0% of the principal amount of all Notes issued under the Indenture remains outstanding immediately after
any such redemption; and
(ii) the Issuers makes such redemption not more than 120 days after the consummation
of any such Equity Offering.
Notice of any redemption upon any Equity Offering may be given prior to the completion thereof, and any such
redemption or notice may, at the Issuers’ discretion, be subject to one or more conditions precedent.
(c) On or after
December 1, 2017, the Issuers may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below,
plus accrued and unpaid interest on the Notes redeemed, to the applicable date of redemption, if redeemed during the twelve month period beginning on December 1 of the years indicated below, subject to the rights of Holders of Notes on the relevant
regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the applicable date of redemption:
A-6
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Year
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Percentage
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2017
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103.250
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%
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2018
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101.625
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%
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2019 and thereafter
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100.000
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%
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(d) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.07 of the Indenture.
(e) In addition to the Issuers’ rights to redeem Notes pursuant to
clause (a), (b) or (c) of this paragraph 5, the Issuers may at any time and from time to time purchase Notes in open-market transactions, tender offers or otherwise.
6. MANDATORY REDEMPTION. The Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will be mailed by first-class mail at least
30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess
of $2,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE.
(a) Upon the occurrence of a Change of Control, the Issuers shall make an offer (a “
Change of Control Offer
”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess of $2,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (the “
Change of Control
Payment
”). The Change of Control Offer shall be made in accordance with Section 4.14 of the Indenture.
(b) If
the Issuers or any of its Restricted Subsidiaries consummates an Asset Sale, within 30 days after each date that Excess Proceeds exceed $60.0 million, the Issuers shall commence, an offer, to all Holders of Notes and all holders of Pari Passu Debt
containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such Pari Passu Debt that may be purchased out
of the Excess Proceeds (an “
Asset Sale Offer
”). The offer price in any Asset Sale Offer shall be equal to 100.0% of the principal amount (or, in the case of any other Pari Passu Debt offered at a significant original issue discount,
100.0% of the accreted value thereof, if permitted by the relevant indenture or other agreement governing such Pari Passu Debt) plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Debt tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
A-7
such Pari Passu Debt to be purchased on a
pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached
to this Note. The Asset Sale Offer shall be made in accordance with Sections 3.09 and 4.10 of the Indenture.
9.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The
registered Holder of a Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The
Indenture, the Note Guarantees and the Notes may be amended or supplemented as provided in the Indenture.
12. DEFAULTS AND
REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25.0% in principal amount of the then outstanding Notes
may declare the principal of, premium, if any, and interest on all of the Notes to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that it is a “notice of acceleration,”
and the same shall become immediately due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without
any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture, the Notes or the Note Guarantees except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default under the Indenture except a Default in payment of the principal of, premium, if any, or interest on, any Note held by a non-consenting Holder (including in connection with an Asset Sale Offer
or a Change of Control Offer). The Issuers and each Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and
the Issuers are required within five Business Days after becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the status thereof.
A-8
13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
14. GOVERNING LAW. THE LAWS
OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
15. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers and ISIN numbers to be printed on the
Notes and the Trustee may use CUSIP numbers and ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.
16. GUARANTEE. The
Issuers’ obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Guarantors.
The Issuers will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the
Issuers at the following address:
350 Highland Drive
Lewisville, Texas 75067
Fax No.: (469) 549-2085
Attention: General Counsel
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’ legal name)
(Insert assignee’s soc. sec. or
tax I.D. no.)
(Print or type assignee’s name,
address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee*:
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuers pursuant to Section 4.10 or Section 4.14 of the Indenture,
check the appropriate box below:
[ ]
Section 4.10 [ ] Section 4.14
If you want to elect to have only part of this Note purchased by the Issuers pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee*:
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is
$
. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note,
or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
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Date of
Exchange
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Amount of
decrease
in Principal
Amount of this
Global Note
|
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Amount of increase
in Principal
Amount of this
Global
Note
|
|
Principal Amount
of
this Global Note
following such
decrease or
increase
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Signature of
authorized
signatory
of Trustee or
Note Custodian
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*
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This schedule should be included only if the Note is issued in global form.
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A-12
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
THE OBLIGATIONS OF THE GUARANTORS TO THE HOLDERS OF THE NOTES PURSUANT TO THIS GUARANTEE AND THE INDENTURE DATED AS OF May 31, 2013, AMONG NATIONSTAR
MORTGAGE LLC, NATIONSTAR CAPITAL CORPORATION, THE GUARANTORS NAMED THEREIN AND THE TRUSTEE NAMED THEREIN (THE “
INDENTURE
”) ARE EXPRESSLY SET FORTH IN ARTICLE X OF THE INDENTURE, AND REFERENCE IS HEREBY MADE TO SUCH INDENTURE FOR THE
PRECISE TERMS OF THIS GUARANTEE. THE TERMS OF THE INDENTURE, INCLUDING WITHOUT LIMITATION ARTICLE X, ARE INCORPORATED HEREIN BY REFERENCE.
A-13
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this “
Supplemental Indenture
”), dated as of
, among
(the “
Guaranteeing Subsidiary
”), a subsidiary of Nationstar Mortgage LLC, a Delaware limited liability
company (the “
Company
” and, together with Nationstar Capital Corporation, the “
Issuers
”) and Wells Fargo Bank, National Association, as trustee (the “
Trustee
”).
W I T N E S S E T H
WHEREAS, the Issuers and each of the Guarantors (as defined in the Indenture referred to below) have heretofore executed and delivered to the Trustee an indenture (the “
Indenture
”), dated
as of May 31, 2013, providing for the issuance of 6.500% Senior Notes due 2022 (the “
Notes
”);
WHEREAS, the
Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers’
Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “
Note Guarantee
”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1)
Capitalized Terms
. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2)
Agreement to Guarantee
. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all other Guarantors named in the Indenture (including pursuant to any supplemental indentures), to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its respective successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuers hereunder or thereunder, that:
B-1
(i) the principal of, interest and premium, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuers to the Holders or the
Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same immediately. This is a guarantee of payment and not a guarantee of collection.
(b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuers or any Guarantors, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The Guaranteeing Subsidiary hereby waives: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a
proceeding first against the Issuers, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be
discharged except by full payment or complete performance of the obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture, including
Article X of the Indenture (which is deemed incorporated in this Supplemental Indenture and applicable to this Note Guarantee). The Guaranteeing Subsidiary acknowledges that by executing this Supplemental Indenture, it will become a Guarantor under
the Indenture and subject to all the terms and conditions applicable to Guarantors contained therein.
(e) If any Holder or the
Trustee is required by any court or otherwise to return to the Issuers, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuers or the
Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
B-2
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article VI of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Note
Guarantee.
(h) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
(i) Pursuant to
Section 10.02 of the Indenture, the obligations of the Guaranteeing Subsidiary shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guaranteeing
Subsidiary that are relevant under any applicable Bankruptcy Law or fraudulent conveyance laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under Article X of the Indenture, result in the obligations of such Guaranteeing Subsidiary under this Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.
(j) This Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or
against the Issuers for liquidation, reorganization, should the Issuers become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and
shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes and Note Guarantee, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
B-3
(k) In case any provision of this Note Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(l) This Note Guarantee shall be a general unsecured senior obligation of such Guaranteeing Subsidiary, ranking
pari passu
with any
other future unsubordinated Indebtedness of the Guaranteeing Subsidiary, if any.
(m) Each payment to be made by the
Guaranteeing Subsidiary in respect of this Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(3)
Execution and Delivery
. The Guaranteeing Subsidiary agrees that the Note Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such
Note Guarantee on the Notes.
(4)
Merger, Consolidation or Sale of All or Substantially All Assets
.
(a) The Guaranteeing Subsidiary may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Guaranteeing Subsidiary is the surviving Person), another Person, other than the Issuers or another Guarantor, unless:
(i) except in the case of a merger entered into solely for the purpose of reincorporating a Guaranteeing Subsidiary in another jurisdiction, immediately after giving effect to that transaction, no Default
or Event of Default shall have occurred and be continuing; and
(ii) either:
(A) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or
merger (if not the Guaranteeing Subsidiary) assumes all the obligations of that Guaranteeing Subsidiary under the Indenture and its Note Guarantee pursuant to this supplemental indenture; or
(B) the Net Proceeds of such sale or other disposition are either (i) applied in accordance with Section 4.10(d) of the
Indenture or (ii) not required to be applied in accordance with any provision of the Indenture.
B-4
(5)
Releases
.
The Note Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally released and discharged, and no further
action by the Guaranteeing Subsidiary, the Issuers or the Trustee is required for the release of the Guaranteeing Subsidiary’s Note Guarantee, in the following circumstances:
(a) in connection with any sale, transfer or other disposition of all or substantially all of the assets of that Guaranteeing Subsidiary
(including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate
Section 4.10 of the Indenture;
(b) in connection with any sale, transfer or other disposition of all of the Capital Stock
of the Guaranteeing Subsidiary (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition
does not violate Section 4.10 of the Indenture;
(c) if the Company designates any Restricted Subsidiary of the Company
that is a Guarantor to be an Unrestricted Subsidiary of the Company in accordance with Section 4.17 of the Indenture; or
(d) upon the exercise of Legal Defeasance by the Issuers or pursuant to Article XI of the Indenture; and
in connection with such release, either of the Issuers shall deliver to the Trustee an Officers’ Certificate of such Guarantor confirming the
effective date of such release and stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(6)
No Recourse Against Others
. No director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the Issuers or the
Guarantors (including the Guaranteeing Subsidiary), respectively, under the Notes, the Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation;
provided
that the foregoing shall not limit any Guarantor’s obligations under its Note Guarantees. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance
of the Notes.
(7)
Governing Law
. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
B-5
(8)
Counterparts
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
(9)
Effect of
Headings
. The Section headings herein are for convenience only and shall not affect the construction hereof.
(10)
The
Trustee
. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely
by the Guaranteeing Subsidiary.
(11)
Subrogation
. The Guaranteeing Subsidiary shall be subrogated to all rights of
Holders of Notes against the Issuers in respect of any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture;
provided
that, if an Event of Default has occurred
and is continuing, the Guaranteeing Subsidiary shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuers under the Indenture or the Notes
shall have been paid in full.
(12)
Benefits Acknowledged
. The Guaranteeing Subsidiary’s Note Guarantee is subject
to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that
the guarantee and waivers made by it pursuant to this Note Guarantee are knowingly made in contemplation of such benefits.
(13)
Successors
. All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its Successors, except as
otherwise in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
[
signature page follows
]
B-6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
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[G
UARANTEEING
S
UBSIDIARY
]
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By:
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Name:
Title:
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W
ELLS
F
ARGO
B
ANK
, N
ATIONAL
A
SSOCIATION
,
as Trustee
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By:
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Name:
Title:
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B-7
