EXECUTION COPY
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PARENT GUARANTEE AGREEMENT
between
MORTGAGEIT HOLDINGS, INC.
as Parent Guarantor,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Guarantee Trustee
Dated as of April 13, 2005
MORTGAGEIT, INC.
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This PARENT GUARANTEE AGREEMENT, dated as of April 13, 2005, executed and
delivered by MORTGAGEIT HOLDINGS, INC., a Maryland corporation (the "Parent
Guarantor") having its principal office at 00 Xxxxxx Xxxx, Xxx Xxxx, XX 00000,
and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association,
as trustee (in such capacity, the "Guarantee Trustee"), for the benefit of the
Trust (as defined herein), the Holders (as defined herein) and the Note Holders
(as defined herein) from time to time of the Notes (as defined herein) of
MORTGAGEIT, INC., a New York corporation (the "Company").
W I T N E S S E T H :
WHEREAS, pursuant to an Indenture, dated as of the date hereof (the
"Indenture"), among the Company and JPMorgan Chase Bank, National Association,
as trustee, the Company is issuing Fifty One Million Five Hundred and Fifty
Thousand Dollars ($51,550,000) aggregate principal amount of its junior
subordinated notes (the "Notes") having the terms set forth in the Indenture to
MortgageIT Capital Trust I, a Delaware statutory trust (the "Trust"), evidencing
loans made to the Company by the Trust of proceeds from the issuance of
undivided preferred beneficial interests in the assets of the Trust (the
"Preferred Securities"), and undivided common beneficial interests in the assets
of the Trust (collectively, together with the Preferred Securities, the "Trust
Securities");
WHEREAS, the Parent Guarantor owns one hundred percent (100%) of the
outstanding capital stock of the Company, and will substantially benefit from
the issuance of the Notes by the Company and the sale of the Preferred
Securities by the Trust; and
WHEREAS, as incentive for the Holders (as defined herein) to purchase
Preferred Securities from the Trust and for the Trust to purchase the Notes with
the proceeds from such purchase, the Parent Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to the Note
Holders (as defined herein) the Parent Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities and the purchase of the Notes by the Trust, the Parent
Guarantor executes and delivers this Parent Guarantee Agreement to provide as
follows for the benefit of the Holders and the Note Holders (as defined herein):
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation.
In this Parent Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Parent Guarantee Agreement but
not defined in the preamble hereto have the respective meanings assigned
to them in Section 1.2;
(b) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(c) all references to "the Parent Guarantee Agreement" or "this
Parent Guarantee Agreement" are to this Parent Guarantee Agreement, as
modified, supplemented or amended from time to time;
(d) all references in this Parent Guarantee Agreement to articles
and sections are to articles and sections of this Parent Guarantee
Agreement unless otherwise specified;
(e) the words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Parent Guarantee Agreement as
a whole and not to any particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice
versa;
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 1.2. Definitions.
As used in this Parent Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings:
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Beneficiaries" means the Guarantee Trustee, the Delaware Trustee,
the Property Trustee, the Administrative Trustees and any successors
thereof.
"Board of Directors" means either the board of directors of the
Parent Guarantor or any duly authorized committee of that board.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Debt" means with respect to any Person, whether recourse is to all
or a portion of the assets of such Person, whether currently existing or
hereafter incurred, and whether or not contingent and without duplication,
(i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued
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for the account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of
this Parent Guarantee Agreement or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange
rate and commodity forward contracts, options, swaps and similar
arrangements; (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i)
through (vii).
"Event of Default" means a default by the Parent Guarantor on any of
its payment or other obligations under this Parent Guarantee Agreement;
provided, that except with respect to a default in payment of any Parent
Guarantee Payments, such default shall not be an Event of Default unless
the Parent Guarantor shall have received notice of such default in
accordance with the terms herein from the Guarantee Trustee, the Trust or
any Holder and shall have failed to cure such default within thirty (30)
days after receipt of such notice.
"Guarantee Trustee" means JPMorgan Chase Bank, National Association,
until a Successor Guarantee Trustee, as defined below, has been appointed
and has accepted such appointment pursuant to the terms of this Parent
Guarantee Agreement, and thereafter means each such Successor Guarantee
Trustee, in any case solely in its capacity as guarantee trustee and not
in its individual capacity.
"Holder" means any holder, as registered on the books and records of
the Trust, of any Preferred Securities; provided, that, in determining
whether the holders of the requisite percentage of Preferred Securities
have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Parent Guarantor, the Guarantee Trustee or any
Affiliate of the Parent Guarantor or the Guarantee Trustee.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred Securities" means a
vote by the Holder(s), voting separately as a class, of more than fifty
percent (50%) of the aggregate Liquidation Amount of all then outstanding
Preferred Securities issued by the Trust.
"Majority in Principal Amount of the Notes" means a vote by the Note
Holder(s), voting separately as a class, of more than fifty percent (50%)
of the aggregate principal amount of all then outstanding Notes.
"Note Holder" means any holder, as registered on the books and
records of the Trustee (as defined in the Indenture), of any Notes;
provided, that, in determining whether the holders of the requisite
percentage of Notes have given any request, notice, consent or waiver
hereunder, "Note Holder" shall not include either the Parent Guarantor,
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the Company, the Guarantee Trustee or any Affiliate of either of the
Parent Guarantor or the Guarantee Trustee.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, President or a Vice
President of such Person, and by the Chief Financial Officer, Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided
for in this Parent Guarantee Agreement (other than the certificate
provided pursuant to Section 2.2) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer,
such condition or covenant has been complied with.
"Parent Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Notes, to the
extent not fully and promptly paid or made by the Company immediately
after the expiration of any grace or cure period applicable to the Company
under the terms of the Indenture: (a) any accumulated and unpaid payments
of interest or principal, or other amounts, required to be paid on the
Notes; and (b) payment of any other amounts to be paid by the Company
under the Indenture, including all amounts due to any Beneficiary by the
Company.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association,
government or any agency or political subdivision thereof or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
the officer in the Institutional Trust Services Department of the Trustee
having direct responsibility for the administration of this Parent
Guarantee Agreement.
"Senior Debt" means the principal of and any premium, if any, and
interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Parent
Guarantor whether or not such claim for post-petition interest is allowed
in such proceeding) all Debt of the Parent Guarantor, whether incurred on
or prior to the date of the Indenture or thereafter incurred, unless it is
provided in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, that such obligations are not superior in
right of payment to the Notes.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and as in effect on the date of this Parent Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture as in effect on
the date hereof.
ARTICLE II
REPORTS
SECTION 2.1. List of Holders.
The Parent Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee at such times as the Guarantee Trustee may request in writing,
within thirty (30) days after the receipt by the Parent Guarantor of any such
request, a list, in such form as the Guarantee Trustee may reasonably require,
of the names and addresses of the Holders or Note Holders (each a "List of
Holders") as of a date not more than fifteen (15) days prior to the time such
list is furnished, in each case to the extent such information is in the
possession or control of the Parent Guarantor or the Company and is not
identical to a previously supplied List of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
SECTION 2.2. Periodic Reports to the Guarantee Trustee.
(a) The Parent Guarantor shall deliver to the Guarantee Trustee, within
ninety (90) days after the end of each fiscal year of the Parent Guarantor
ending after the date of this Parent Guarantee Agreement, an Officers'
Certificate covering the preceding fiscal year, stating whether or not to the
knowledge of the signers thereof the Parent Guarantor is in default in the
performance or observance of any of the terms or provisions or any of the
conditions of this Parent Guarantee Agreement (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Parent Guarantor
shall be in default thereof, specifying all such defaults and the nature and
status thereof of which they have knowledge.
(a) (b) The Parent Guarantor shall furnish (i) to the Guarantee Trustee;
(ii) Taberna Capital Management, LLC, 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address as designated by Taberna Capital Management, LLC);
and (iii) any Owner of the Preferred Securities reasonably identified to the
Company and the Trust (which identification may be made either by such Owner or
by Taberna Capital Management, LLC) a duly completed and executed certificate
substantively and substantially in the form attached hereto as Exhibit A,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Parent Guarantor not later
than forty five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent Guarantor and not later than ninety
(90) days after the end of each fiscal year of the Parent Guarantor.
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SECTION 2.3. Event of Default; Waiver.
Neither the Trust nor the Note Holders shall have the right to waive any
past Event of Default without the consent of the Holders of a Majority in
Liquidation Amount of the Preferred Securities. The Holders of a Majority in
Liquidation Amount of the Preferred Securities may, on behalf of the Holders,
the Trust or the Note Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Parent Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.4. Event of Default; Notice.
(a) The Guarantee Trustee shall, within ninety (90) days after the
occurrence hereunder of a default, transmit to the Trust, the Note Holders, the
Company and the Holders notices of all defaults actually known to the Guarantee
Trustee, unless such defaults have been cured or waived before the giving of
such notice. For the purpose of this Section 2.4, the term "default" means any
event that is, or after notice or lapse of time or both would become, an Event
of Default.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this Parent
Guarantee Agreement shall have obtained written notice, of such Event of Default
from the Parent Guarantor, the Company, a Note Holder or a Holder.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Parent Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, the Note Holders and the Trust, and the
Guarantee Trustee shall not transfer this Parent Guarantee Agreement to any
Person except a Holder or Note Holder exercising its rights pursuant to Section
5.4(d) or to a Successor Guarantee Trustee upon acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically vest in
any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) The rights, immunities, duties and responsibilities of the Guarantee
Trustee shall be as provided by this Parent Guarantee Agreement and there shall
be no other duties or obligations, express or implied, of the Guarantee Trustee.
Notwithstanding the foregoing, no provisions of this Parent Guarantee Agreement
shall require the Guarantee Trustee to expend or
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risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Parent Guarantee Agreement relating to the conduct or affecting the
liability of or affording protection to the Guarantee Trustee shall be subject
to the provisions of this Section 3.1. To the extent that, at law or in equity,
the Guarantee Trustee has duties and liabilities relating to the Trust, the
Parent Guarantor or the Note Holders or the Holders, the Guarantee Trustee shall
not be liable to any Note Holders or the Holders for the Guarantee Trustee's
good faith reliance on the provisions of this Parent Guarantee Agreement. The
provisions of this Parent Guarantee Agreement, to the extent that they restrict
the duties and liabilities of the Guarantee Trustee otherwise existing at law or
in equity, are agreed by the Parent Guarantor and the Note Holders or the
Holders to replace such other duties and liabilities of the Guarantee Trustee.
(c) No provision of this Parent Guarantee Agreement shall be construed
to relieve the Guarantee Trustee from liability for its own negligent action,
negligent failure to act or own willful misconduct, except that:
(i) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made; and
(ii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Note Holders of not less than a Majority in Principal
Amount of the Notes or, in the case of a waiver under Section 2.3, the
Holders of not less than a Majority in Liquidation Amount of the Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under
this Parent Guarantee Agreement.
SECTION 3.2. Certain Rights of the Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting in good faith and in
accordance with the terms hereof, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Parent Guarantor contemplated by
this Parent Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein;
(iii) the Guarantee Trustee may consult with counsel, and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action
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taken, suffered or omitted to be taken by it hereunder in good faith and
in reliance thereon and in accordance with such advice. Such counsel may
be counsel to the Guarantee Trustee, the Parent Guarantor or any of their
respective Affiliates and may be one of the Guarantee Trustee's employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Parent Guarantee
Agreement from any court of competent jurisdiction;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Parent Guarantee
Agreement at the request or direction of any Holder or Note Holder, unless
such Holder or Note Holder shall have provided to the Guarantee Trustee
reasonable security or indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided, that, nothing contained in this Section 3.2(a)(iv) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it
by this Parent Guarantee Agreement; provided, further, that nothing
contained in this Section 3.2(a)(iv) shall prevent the Guarantee Trustee
from exercising its rights under Section 4.2 hereof;
(v) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and if the Guarantee Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Parent Guarantor, personally or by
agent or attorney;
(vi) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents, attorneys, custodians or nominees and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney, custodian or nominee appointed with due care by
it hereunder;
(vii) whenever in the administration of this Parent Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right hereunder, the
Guarantee Trustee (A) may request instructions from the Trust, the Note
Holders of a Majority in Principal Amount of the Notes or the Holders of a
Majority in Liquidation Amount of the Preferred Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such requested instructions are received and (C) shall be protected
in acting in accordance with such instructions; provided, however, that
the Guarantee Trustee must first obtain the consent of the Holders of a
Majority in Liquidation Amount of the Preferred Securities prior to taking
any action upon the direction of the Trust;
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(viii) except as otherwise expressly provided by this Parent
Guarantee Agreement, the Guarantee Trustee shall not be under any
obligation to take any action that is discretionary under the provisions
of this Parent Guarantee Agreement; and
(ix) whenever, in the administration of this Parent Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Parent Guarantor.
(b) No provision of this Parent Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Compensation.
The Parent Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provisions of
this Parent Guarantee Agreement.
SECTION 3.4. Indemnity.
The Parent Guarantor agrees to indemnify and hold harmless the Guarantee
Trustee and any of its Affiliates and any of their officers, directors,
shareholders, employees, representatives or agents from and against any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to Section 3.3), penalty, expense or claim of any kind or
nature whatsoever incurred without negligence, bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Parent Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Guarantee Trustee will not claim or exact any lien or charge on any Parent
Guarantee Payments as a result of any amount due to it under this Parent
Guarantee Agreement. This indemnity shall survive the termination of this Parent
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
In no event shall the Guarantee Trustee be liable for any indirect,
special, punitive or consequential loss or damage of any kind whatsoever,
including, but not limited to, lost profits, even if the Guarantee Trustee has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
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In no event shall the Guarantee Trustee be liable for any failure or delay
in the performance of its obligations hereunder because of circumstances beyond
its control, including, but not limited to, acts of God, flood, war (declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this Parent
Guarantee Agreement.
SECTION 3.5. Securities.
The Guarantee Trustee or any other agent of the Guarantee Trustee, in its
individual or any other capacity, may become the owner or pledgee of the Notes.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Parent Guarantor or the Company;
and
(ii) be a corporation organized and doing business under the laws
of the United States or of any State thereof, authorized to exercise
corporate trust powers, having a combined capital and surplus of at least
fifty million dollars ($50,000,000), subject to supervision or examination
by Federal or State authority and having an office within the United
States. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then, for the purposes of this Section 4.1, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee shall either eliminate such interest or resign in the manner
and with the effect set out in Section 4.2(c).
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Parent Guarantor, except during an
Event of Default.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Parent Guarantor.
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(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Parent Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Parent Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within thirty (30) days
after delivery to the Parent Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Parent
Guarantor, any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
PARENT GUARANTEE
SECTION 5.1. Parent Guarantee.
(a) The Parent Guarantor irrevocably and unconditionally agrees to pay
in full to the Note Holders and/or the Beneficiaries, as the case may be, the
Parent Guarantee Payments (without duplication of amounts theretofore timely
paid by or on behalf of the Company), as and when due, regardless of any defense
(except for the defense of timely payment by the Company), right of set-off or
counterclaim which the Company may have or assert. The Parent Guarantor's
obligation to make a Parent Guarantee Payment may be satisfied by direct payment
of the required amounts by the Parent Guarantor to the Note Holders and/or the
Beneficiaries, as the case may be, or by causing the Company to pay such amounts
to the Note Holders and/or the Beneficiaries, as the case may be. The Parent
Guarantor shall give prompt written notice to the Guarantee Trustee in the event
the Parent Guarantor makes any direct payment to the Note Holders and/or the
Beneficiaries, as the case may be.
(b) The Parent Guarantor expressly agrees that the guarantee set forth
in the immediately preceding paragraph includes, but is not limited to, the
guarantee of the full and prompt payment of the Parent Guarantor's obligation to
make any and all interest payments on the Notes which would be required to be
made by the Company under the Indenture, including, without limitation, any
amounts of Additional Interest, the Optional Redemption Price, Liquidation
Amount, the Special Redemption Price, Additional Tax Sums, or any other amount
set forth in the Indenture or the Note.
(c) All Parent Guarantee Payments made from time to time with respect to
this Parent Guarantee Agreement shall be in U.S. dollars.
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SECTION 5.2. Waiver of Notice and Demand.
The Parent Guarantor hereby waives notice of acceptance of the Parent
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Guarantee Trustee, the Company, the Trust, the Note Holders or any other
Person before proceeding against the Parent Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Parent Guarantor
under this Parent Guarantee Agreement shall be absolute and unconditional, and
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Notes to be
performed or observed by the Company;
(b) [Reserved];
(c) any failure, omission, delay or lack of diligence on the part
of the Trust or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Trust or the Holders pursuant
to the terms of the Notes, or any action on the part of the Company
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the Notes;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Parent
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders, the Note Holders or the Trust to
give notice to, or obtain the consent of, the Parent Guarantor with respect to
the happening of any of the foregoing. No set-off, counterclaim, reduction or
diminution of any obligation, or any defense of any kind or nature that the
Parent Guarantor has or may have shall be available hereunder to the Parent
Guarantor against the Trust, any Holder or any Note Holder to reduce the
payments thereto under this Parent Guarantee Agreement.
SECTION 5.4. Rights of Holders, the Note Holders and the Trust.
12
The Parent Guarantor expressly acknowledges that: (a) this Parent
Guarantee Agreement will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders, the Note Holders and the Trust; (b) the Guarantee
Trustee has the right to enforce this Parent Guarantee Agreement on behalf of
the Holders, the Note Holders and the Trust; (c) the Holders of a Majority in
Liquidation Amount of the Preferred Securities, the Note Holders of a Majority
in Principal Amount of the Notes and the Trust have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Parent Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Parent Guarantee Agreement (provided, however, the Trust shall not exercise such
right without the consent of the Holders of a Majority in Liquidation Amount of
the Preferred Securities); and (d) the Trust, any Note Holder or any Holder may
institute a legal proceeding directly against the Parent Guarantor to enforce
their respective rights under this Parent Guarantee Agreement, without first
instituting a legal proceeding against the Guarantee Trustee, the Company or any
other Person.
SECTION 5.5. Guarantee of Payment.
This Parent Guarantee Agreement creates a guarantee of payment and not of
collection. This Parent Guarantee Agreement will not be discharged except by
payment of the Parent Guarantee Payments in full (without duplication of amounts
theretofore paid by the Company) or upon payment in full of the Notes and all
amounts owed by the Company under the Indenture to the Note Holders or
beneficiary thereof.
SECTION 5.6. Subrogation.
The Parent Guarantor shall be subrogated to all (if any) rights of the
Trust, the Note Holders and the Holders against the Company in respect of any
amounts paid to the Trust or the Note Holders by the Parent Guarantor under this
Parent Guarantee Agreement and shall have the right to waive payment by the
Company pursuant to Section 5.1; provided, that, the Parent Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Parent Guarantee Agreement, if, at the time of any such payment, any
amounts are due and unpaid under this Parent Guarantee Agreement. If any amount
shall be paid to the Parent Guarantor in violation of the preceding sentence,
the Parent Guarantor agrees to hold such amount in trust for the Holders, Note
Holders and the holders of any beneficial interests thereof and to pay over such
amount to the appropriate Note Holder or Holder, as applicable.
SECTION 5.7. Independent Obligations.
The Parent Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Notes, any
other guarantee agreement and with respect to any obligations of the Parent
Guarantor, the Trust or the Company with respect to the Notes and the Preferred
Securities and that the Parent Guarantor shall be liable as principal and as
debtor hereunder to make Parent Guarantee Payments pursuant to the terms of this
Parent Guarantee Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3.
13
SECTION 5.8. Enforcement.
A Beneficiary or a Note Holder may enforce the Obligations of the Parent
Guarantor contained in Section 5.1(c) directly against the Parent Guarantor, and
the Parent Guarantor waives any right or remedy to require that any action be
brought against the Company or any other person or entity before proceeding
against the Parent Guarantor.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Subordination.
(a) The obligations of the Parent Guarantor under this Parent Guarantee
Agreement will constitute unsecured obligations of the Parent Guarantor and will
rank subordinate and junior in right of payment to all Senior Debt of the Parent
Guarantor.
(b) The right of the Parent Guarantor to participate in any distribution
of assets of any of its subsidiaries upon any such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent the Parent Guarantor may itself be recognized
as a creditor of that subsidiary. Accordingly, the Parent Guarantor's
obligations under this Parent Guarantee Agreement will be effectively
subordinated to all existing and future liabilities of the Parent Guarantor's
subsidiaries, and claimants should look only to the assets of the Parent
Guarantor for payments thereunder.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Parent Guarantor under this Parent Guarantee
Agreement shall rank pari passu with the obligations of the Parent Guarantor
under any similar guarantee agreements issued by the Parent Guarantor with
respect to notes (if any) similar to the Notes, issued by the Company or other
Affiliate of the Parent Guarantor and related to trusts other than the Trust
established or to be established by the Company (if any), in each case similar
to the Trust.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Parent Guarantee Agreement shall terminate and be of no further force
and effect upon (a) full payment of the Redemption Price of all Preferred
Securities or (b) full payment of the Notes and all amounts payable in
accordance with the Indenture upon liquidation of the Trust. Notwithstanding the
foregoing, this Parent Guarantee Agreement will continue to be effective or will
be reinstated, as the case may be, if at any time any Holder, the Note Holder or
the Trust must restore payment of any sums paid with respect to Preferred
Securities (including amounts paid under that certain Guarantee Agreement issued
by the Company and the Parent
14
Guarantor to JPMorgan Chase Bank, National Association, as guarantee trustee,
dated even herewith with respect to the Preferred Securities, the Notes or this
Parent Guarantee Agreement). The obligations of the Parent Guarantor under
Sections 3.3 and 3.4 shall survive any such termination or the resignation and
removal of the Guarantee Trustee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Parent Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Parent Guarantor and shall inure to the benefit of the Trust and the Holders
or the Note Holders. Except in connection with a consolidation, merger or sale
involving the Parent Guarantor that is permitted under Article IX hereof, and
pursuant to which the successor or assignee agrees in writing to perform the
Parent Guarantor's obligations hereunder, the Parent Guarantor shall not assign
its rights or delegate its obligations hereunder without the prior approval of
the Holders of a Majority in Liquidation Amount of the Preferred Securities.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Trust and of the Holders in any material respect (in which case no
consent of the Holders will be required), this Parent Guarantee Agreement may
only be amended with the prior approval of the Parent Guarantor, the Guarantee
Trustee, the Trust and the Holders of not less than a Majority in Liquidation
Amount of the Preferred Securities. The provisions of Article VI of the Trust
Agreement (as defined in the Indenture) concerning meetings or consents of the
Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Parent Guarantor, to the address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Parent Guarantor may give notice to
the Guarantee Trustee and the Holders:
15
MortgageIT Holdings, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(b) if given to the Trust, at the address or facsimile number set
forth below or such other address, facsimile number or to the attention of
such other Person as the Trust may give notice to the Guarantee Trustee
and the Holders:
MortgageIT Capital Trust I
c/o MortgageIT Holdings, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(c) if given to the Company, at the address or facsimile number
set forth below or such other address, facsimile number or to the
attention of such other Person as the Company may give notice to the
Guarantee Trustee and the Holders:
MortgageIT, Inc.
c/o MortgageIT Holdings, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(d) if given to the Guarantee Trustee, at the address or
facsimile number set forth below or such other address, facsimile number
or to the attention of such other Person as the Guarantee Trustee may give
notice to the Parent Guarantor and the Holders:
JPMorgan Chase Bank, National Association
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Institutional Trust Services--MortgageIT
Capital Trust I
(e) if given to any Note Holder, at the address set forth on the
books and records of the Trustee (as defined in the Indenture), and if to
any Holder, at the address set forth in the books and records of the
Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
16
SECTION 8.4. Benefit.
This Parent Guarantee Agreement is solely for the benefit of the Trust,
the Note Holders and the Holders and is not separately transferable from the
Notes.
SECTION 8.5. Governing Law.
THIS PARENT GUARANTEE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH
PARTY HERETO, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION 8.6. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS PARENT GUARANTEE AGREEMENT MAY BE BROUGHT IN
OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF
THIS PARENT GUARANTEE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS PARENT GUARANTEE AGREEMENT.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.8. The Indenture.
Each of the parties hereto hereby acknowledges that it is familiar with
the terms of the Indenture. The Indenture shall be deemed to be specifically
described in this Parent Guarantee Agreement.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE AND OWNERSHIP OF THE
COMPANY
SECTION 9.1. Parent Guarantor May Consolidate, etc., Only on Certain
Terms.
The Parent Guarantor shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and
17
no Person shall consolidate with or merge into the Parent Guarantor or convey,
transfer or lease its properties and assets substantially as an entirety to the
Parent Guarantor, unless:
(a) if the Parent Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the entity formed by such consolidation or into which
the Parent Guarantor is merged or the Person that acquires by conveyance or
transfer, or that leases, the properties and assets of the Parent Guarantor
substantially as an entirety shall be an entity organized and existing under the
laws of the United States of America or any State or Territory thereof or the
District of Columbia unless otherwise approved by Holders of a Majority
Liquidation Amount of the Preferred Securities and shall expressly assume, in
writing, executed and delivered to the Guarantee Trustee, in form reasonably
satisfactory to the Guarantee Trustee, the due and punctual payment of the
Parent Guarantee Payments required hereunder and the performance of every
covenant and obligation of the Parent Guarantor to be performed under this
Parent Guarantee Agreement on the part of the Parent Guarantor to be performed
or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(c) the Parent Guarantor has delivered to the Guarantee Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a written agreement
evidencing any assignment or assumption is required in connection with such
transaction, any such agreement complies with this Article IX and that all
conditions precedent herein provided for relating to such transaction have been
complied with; and the Trustee may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this Section 9.1.
SECTION 9.2. Dividends, Distributions and Payments.
So long as any Notes or Preferred Securities remain outstanding, if there
shall have occurred and be continuing an Event of Default, then the Parent
Guarantor shall not and shall not permit the Company to (a) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make liquidation
payment with respect to, any of its respective capital stock (other than
payments of dividends or distributions by the Company to the Parent Guarantor,
its successor or any of its Subsidiaries, provided that such Subsidiary is
wholly-owned, directly or indirectly, by the Parent Guarantor) or (b) make any
payment of principal of or any interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company or the Parent Guarantor
that rank pari passu in all respects with or junior in interest to the Notes
(other than (i) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company or the Parent Guarantor by either the Company or
the Parent Guarantor in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one of more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company or the Parent Guarantor (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of such Event of Default, (ii)
as a result of an exchange or conversion of any class or series of the Company's
or the Parent Guarantor's capital stock (or any capital stock of a subsidiary of
either
18
the Company or the Parent Guarantor) for any class or series of the Company's or
the Parent Guarantor's capital stock or any class of series of the Company's or
the Parent Guarantor's indebtedness for any class or series of the Company's or
the Parent Guarantor's capital stock, (iii) the purchase of fractional interests
in shares of the Company's or the Parent Guarantor's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (iv) any declaration of a dividend in connection
with any rights plan, the issuance of rights, stock or other property under any
rights plan or the redemption or repurchase of rights pursuant thereto, or (v)
any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock).
SECTION 9.3. Successor Company Substituted.
Upon any consolidation or merger by the Parent Guarantor with or into any
other Person, or any conveyance, transfer or lease by the Parent Guarantor of
its properties and assets substantially as an entirety to any Person in
accordance with Section 9.1 and the execution and delivery to the Trustee of the
written agreement described in Section 9.1(a), the successor entity formed by
such consolidation or into which the Parent Guarantor is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Parent Guarantor under this
Parent Guarantee Agreement with the same effect as if such successor Person had
been named as the Parent Guarantor herein; and in the event of any such
conveyance, or transfer, or lease following the execution and delivery of such
written agreement, the Parent Guarantor shall be discharged from all obligations
and covenants under the Parent Guarantee Agreement and the Notes.
SECTION 9.4. Ownership of the Company.
At all times while this Parent Guarantee Agreement is in effect and while
any of the obligations of the Parent Guarantor hereunder remain outstanding, one
hundred percent (100%) of the outstanding capital stock of the Company shall be
owned by the Parent Guarantor.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
SECTION 10.1. Representations and Warranties of Parent Guarantor.
The Parent Guarantor hereby represents and warrants for the benefit of the
Note Holders and the Holders that:
(a) the Parent Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of Maryland;
(b) the Parent Guarantor has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Parent
Guarantee Agreement and has
19
taken all necessary action to authorize the execution, delivery and performance
by it of this Parent Guarantee Agreement;
(c) this Parent Guarantee Agreement has been duly authorized, executed
and delivered by the Parent Guarantor and constitutes the legal, valid and
binding agreement of the Parent Guarantor enforceable against the Parent
Guarantor in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity;
(d) the execution, delivery and performance of this Parent Guarantee
Agreement have been duly authorized by all necessary corporate or other action
on the part of the Parent Guarantor and do not require any approval of
stockholders of the Parent Guarantor and such execution, delivery and
performance will not (i) violate the articles or certificate of incorporation or
by-laws (or other organizational documents) of the Parent Guarantor or (ii)
violate any applicable law, governmental rule or regulation governing the Parent
Guarantor, any material agreement to which it is a party or any material portion
of its property or any order, judgment or decree applicable to the Company or
the Parent Guarantor, respectively, or any material portion of its property;
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, the undersigned have executed this Parent Guarantee
Agreement as of the date first above written.
MORTGAGEIT HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President & Chief Financial Officer
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Guarantee Trustee
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
G-1
EXHIBIT A
OFFICER'S FINANCIAL CERTIFICATE
The undersigned, the [Chairman/Vice Chairman/Chief Executive
Officer/President/Vice President/Chief Financial Officer/Treasurer/Assistant
Treasurer], hereby certifies pursuant to Section 2.2(b) of the Parent Guarantee
Agreement, dated as of April 13 (the "Parent Guarantee Agreement"), between
MortgageIT Holdings, Inc. (the "Parent Guarantor"), JPMorgan Chase Bank,
National Association, as guarantee trustee, that, as of [date], [20__].
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Parent Guarantor and its consolidated subsidiaries
for the three years ended _______, 20___].
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Parent Guarantor and its consolidated subsidiaries for the
fiscal quarter ended [date], 20__.]
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Parent Guarantor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and for
the [QUARTER] [ANNUAL] period ended [DATE], 20__, and such financial statements
have been prepared in accordance with GAAP consistently applied throughout the
period involved (expect as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this _____ day of _____________, 20__.
MortgageIT Holdings, Inc.
By:_______________________________________
Name:_____________________________________
MortgageIT Holdings, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
G-2
TABLE OF CONTENTS
PAGE
ARTICLE I INTERPRETATION AND DEFINITIONS...................................1
Section 1.1. Interpretation..............................................1
Section 1.2. Definitions.................................................2
ARTICLE II REPORTS..........................................................5
Section 2.1. List of Holders.............................................5
Section 2.2. Periodic Reports to the Guarantee Trustee...................5
Section 2.3. Event of Default; Waiver....................................6
Section 2.4. Event of Default; Notice....................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE...............6
Section 3.1. Powers and Duties of the Guarantee Trustee..................6
Section 3.2. Certain Rights of the Guarantee Trustee.....................7
Section 3.3. Compensation................................................9
Section 3.4. Indemnity...................................................9
Section 3.5. Securities.................................................10
ARTICLE IV GUARANTEE TRUSTEE...............................................10
Section 4.1. Guarantee Trustee; Eligibility.............................10
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee......................................10
ARTICLE V PARENT GUARANTEE................................................11
Section 5.1. Parent Guarantee...........................................11
Section 5.2. Waiver of Notice and Demand................................12
Section 5.3. Obligations Not Affected...................................12
Section 5.4. Rights of Holders, the Note Holders and the Trust..........13
Section 5.5. Guarantee of Payment.......................................13
Section 5.6. Subrogation................................................13
Section 5.7. Independent Obligations....................................13
Section 5.8. Enforcement................................................14
ARTICLE VI SUBORDINATION...................................................14
Section 6.1. Subordination..............................................14
Section 6.2. Pari Passu Guarantees......................................14
i
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VII TERMINATION.....................................................15
Section 7.1. Termination................................................15
ARTICLE VIII MISCELLANEOUS...................................................15
Section 8.1. Successors and Assigns.....................................15
Section 8.2. Amendments.................................................15
Section 8.3. Notices....................................................16
Section 8.4. Benefit....................................................17
Section 8.5. Governing Law..............................................17
Section 8.6. Submission to Jurisdiction.................................17
Section 8.7. Counterparts...............................................17
Section 8.8. The Indenture..............................................17
ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE AND OWNERSHIP OF THE COMPANY..............................18
Section 9.1. Parent Guarantor May Consolidate, etc.,
Only on Certain Terms......................................18
Section 9.2. Dividends, Distributions and Payments......................18
Section 9.3. Successor Company Substituted..............................19
Section 9.4. Ownership of the Company...................................19
ARTICLE X REPRESENTATIONS AND WARRANTIES..................................20
Section 10.1. Representations and Warranties of Parent
Guarantor..................................................20
ii
