LITCHFIELD FINANCIAL CORPORATION
AND
THE BANK OF NEW YORK,
TRUSTEE
-------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 1, 1998
9.25% Series B Notes due 2003
Supplemental to Indenture dated as of July 15, 1998
SECOND SUPPLEMENTAL INDENTURE, dated as of December 1, 1998 (the
"Second Supplemental Indenture"), to the Indenture, dated as of July 15, 1998
(the "Indenture"), between Litchfield Financial Corporation, a corporation duly
organized under the laws of the Commonwealth of Massachusetts (the "Company"),
having its principal office at 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx
00000, and The Bank of New York, a New York banking corporation (the "Trustee"),
having a corporate trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of one or more
series of its notes (the "Notes") to be issued in one or more series as in the
Indenture provided;
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Second Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Notes
designated as its 9.25% Series B Notes due 2003 in the aggregate principal
amount of up to $20,000,000, substantially in the form attached hereto as
Exhibit "A" (the "Series B Notes"), on the terms set forth herein;
WHEREAS, Section 13.1 of the Indenture provides that a supplemental
Indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Notes for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Second Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have been
done;
NOW THEREFORE:
In consideration of the premises and the purchase and acceptance of the
Series B Notes by the holders thereof, the Company mutually covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Series B Notes, that the Indenture is supplemented and amended, to the extent
and for the purposes expressed herein, as follows:
1. Establishment of Series B Notes under the Indenture. The Company
hereby establishes the Series B Notes in the form of Exhibit A hereto in an
aggregate principal amount of $20,000,000 and on the terms set forth therein as
a series of Notes under the Indenture pursuant to this Second Supplemental
Indenture.
2. Optional Redemption by the Company. In accordance with Section 5.1
of the Indenture, the Series B Notes will be subject to optional redemption by
the Company as provided in the form of Series B Note attached as Exhibit A
hereto.
3. Redemption at Option of Holder. In the event that a holder or his or
her duly authorized representative notifies the Trustee of such person's desire
to redeem all or any portion of a Series B Note pursuant to Section 6.1(a) or
(b) of the Indenture, such holder shall follow the redemption procedures set
forth in Section 6.2 of the Indenture.
4. Liquidity Maintenance Requirement. At all times, the Company shall
maintain, at the parent company level, Permitted Investments the fair market
value of which are equal to or in excess of the product of (a) the aggregate
amount of interest payable with respect to the Notes for the next succeeding
Interest Payment Date (b) multiplied by two (2). On or before ten (10) days
prior to and until the next succeeding Interest Payment Date, the Company shall
maintain, at the parent company level, Permitted Investments the fair market
value of which are equal to or in excess of the product of (a) the aggregate
amount of interest payable with respect to the Notes for the next succeeding
Interest Payment Date (b) multiplied by three (3). The Company will deliver to
the Trustee, within 30 days after the end of each fiscal quarter, an Officer's
Certificate stating that the Company is, and at all times during the prior
fiscal quarter has been, in compliance with the provisions of this Section 4.
5. Trustee Disclaimer. The Trustee makes no representations as to the
validity or sufficiency of this Second Supplemental Indenture or the Series B
Notes, and assumes no responsibility for the recitals contained herein or
therein which shall be taken as the statements of the Company.
6. Governing Law. This Second Supplemental Indenture and the Series B
Notes shall be governed by the laws of the State of New York as to all matters
affecting the duties, liabilities, privileges, rights and obligations of the
Noteholders, the Company, the Trustee and any agents of the foregoing, including
but not limited to, matters of validity, construction, effect and performance.
IN WITNESS WHEREOF, LITCHFIELD FINANCIAL CORPORATION has caused its
name to be hereunto affixed, and this Second Supplemental Indenture to be signed
by its Chairman of the Board, President or any Vice President, and its corporate
seal to be affixed hereto, and the same to be attested by its Clerk or one of
its Assistant Clerks; and THE BANK OF NEW YORK, in token of its acceptance of
the trust hereby created, has caused its corporate name to be hereunto affixed
and this instrument to be signed by one of its authorized signatories, as of the
day and year first above written.
LITCHFIELD FINANCIAL CORPORATION
Attest:
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Attesting Officer Name: Xxxxxxx X. Xxxxxxxx
Title: President and
Chief Executive Officer
[Corporate Seal] THE BANK OF NEW YORK
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
Exhibit A to Second Supplemental Indenture
[FORM OF FACE OF NOTES]
Litchfield Financial Corporation $
No.
Cusip: 536619 AF 6
9.25% SERIES B NOTE DUE DECEMBER 1, 2003
Litchfield Financial Corporation, a corporation organized and existing
under the laws of the Commonwealth of Massachusetts (hereinafter called the
"Company," which term shall include any successor corporation as defined in the
Indenture referred to on the reverse side hereof), for value received, hereby
promises to pay to[ ], or registered assigns, the sum of [ ] Dollars on or
before December 1, 2003, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and private debts,
and to pay interest (calculated on the basis of a 360-day year of twelve 30-day
months) on the unpaid principal amount hereof in like coin or currency from the
Interest Payment Date to which interest hereon has been paid immediately
preceding the date hereof (unless the date hereof is an Interest Payment Date to
which interest has been paid, in which case from the date hereof) or, if no
interest has been paid on this Note since the date of its original issuance,
from such date of original issuance, at the rate of 9.25% per annum, payable
monthly, on the first day of each month, commencing January 1, 1999, until the
principal hereof shall have been paid or duly provided for. The interest so
payable on any Interest Payment Date will be paid to the person in whose name
this Note is registered at the close of business on the fifteenth day of the
month immediately preceding such Interest Payment Date (whether or not such
fifteenth day shall be a regular business day), unless the Company shall default
in the payment of interest due on such Interest Payment Date, in which case such
defaulted interest shall be paid to the person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest established by notice to the registered holders of Notes
given by mail to said holders as their names and addresses appear in the Note
Register (as defined in the Indenture referred to on the reverse side hereof)
not less than 10 days preceding such Special Record Date. The principal hereof
and the interest hereon shall be payable at the main office of The Bank of New
York, Trustee under the Indenture referred to on the reverse side hereof, in New
York, New York; provided, however, that the interest on this Note may be
payable, at the option of the Company, by check mailed to the person entitled
thereto as such person's address shall appear on the Note Register (including
the records of any Note Co-Registrar).
Reference is hereby made to the further provisions of this Note set
forth on the reverse side hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse side hereof, or be or become valid or obligatory for
any purpose, until the authentication certificate endorsed hereon shall have
been signed by The Bank of New York, Trustee under such Indenture, or a
successor trustee thereto under such Indenture.
IN WITNESS WHEREOF, LITCHFIELD FINANCIAL CORPORATION has caused this
Note to be signed in its name by its President and Chief Executive Officer or
its Executive Vice President or one of its Vice Presidents by his signature or a
facsimile thereof, and its corporate seal to be affixed or printed or engraved
hereon, or a facsimile thereof, and attested by its Clerk or one of its
Assistant Clerks by his signature or a facsimile thereof.
LITCHFIELD FINANCIAL CORPORATION
By:
Title:
[CORPORATE SEAL]
Attest:
-------------------------
Attesting Officer
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Note is one of the Notes described or provided for in the
Indenture referred to on the reverse side hereof.
The Bank of New York
as Trustee
Dated:________________
By:
Authorized Signatory
[FORM OF REVERSE OF NOTE]
Litchfield Financial Corporation
9.25% SERIES B NOTE DUE DECEMBER 1, 2003
This Note is one of a duly authorized issue of Notes of the Company
designated as its 9.25% Series B Notes due December 1, 2003 (herein called the
"Notes"), limited in aggregate principal amount of up to $___________________
(except for Notes authenticated and delivered upon transfer of, or in exchange
for or in lieu of other Notes), all issued and to be issued only in fully
registered form without coupons under an Indenture dated as of July 15, 1998 and
Second Supplemental Indenture dated as of ____________________ (such Indenture
and Second Supplemental Indenture, together with any indenture supplemental
thereto, called the "Indenture"), each duly executed and delivered by Litchfield
Financial Corporation to The Bank of New York, New York, New York, Trustee (the
Trustee, together with its successors being herein called the "Trustee"), to
which Indenture (which is hereby made a part hereof and to all of which the
holder by acceptance hereof assents) reference is hereby made for a description
of the respective rights of and restrictions upon the Company and the holders of
the Notes, and the rights, limitations of rights, duties and immunities of the
Trustee in respect thereof.
The Notes are redeemable at the option of the Company as a whole at any
time, or in part from time to time, prior to maturity, commencing December 1,
2000, on not less than 30 nor more than 60 days' notice given as provided in the
Indenture, upon payment of the then applicable redemption price (expressed in
percentages of the principal amount) set forth below under the heading "General
Redemption Prices," together in each case with accrued and unpaid interest to
the date fixed for redemption, all subject to the conditions more fully set
forth in the Indenture. The General Redemption Prices (expressed in percentages
of the principal amount) applicable during the 12-month period beginning
December 1 in the years indicated below are as follows:
General Redemption Prices
If redeemed during the 12 month period beginning December 1,
2000 .........................103.0%
2001 .........................101.5%
2002 and thereafter ..........100.0%
Unless the Notes have been declared due and payable prior to their
maturity by reason of an Event of Default and such Event of Default has not been
waived and such declaration has not been rescinded or annulled, a holder has the
right under Section 6.1 of the Indenture to present Notes for payment prior to
their maturity, and the Company will redeem the same (or any portion of the
principal amount thereof which is $1,000 or an integral multiple thereof, as the
holder may specify), subject to the following limitations: (a) the Company will
have no obligation to redeem any Notes prior to January 1, 2000, except on the
death of a holder as described below, and (b)
the Company will have no obligation to redeem Notes (on the death of a holder or
otherwise) in excess of the following annual maximum amounts (collectively, the
"Annual Amount Limitations") of (i) $25,000 per holder and (ii) an aggregate
amount for all Notes issued under the Indenture submitted for redemption equal
to five percent (5%) of the aggregate original principal amount of the Notes
issued under the Indenture (the "Five Percent Limitation"). Notes submitted for
redemption, except for Notes submitted for redemption following the death of a
holder, must be submitted by October 31 of any year, commencing on October 31,
1999, for redemption on the following January 1. If the $25,000 per holder
limitation has been reached and the Five Percent Limitation has not been
reached, and if Notes have been properly presented for payment each in an
aggregate principal amount exceeding $25,000, the Company will redeem such Notes
in order of their receipt (except Notes presented for payment in the event of
death of a holder, which will be given priority in order of their receipt), up
to the aggregate limitation of five percent (5%) of the aggregate principal
amount of the Notes issued under this Indenture, notwithstanding the $25,000
limitation.
Subject to the Annual Amount Limitations (and unless the Notes have
been declared due and payable prior to their maturity by reason of an Event of
Default and such Event of Default has not been waived and such declaration has
not been rescinded or annulled), Notes submitted for redemption upon the death
of any holder (or any portion of the principal amount of such Notes which is
$1,000 or an integral multiple thereof, as the holder may specify), will be
redeemed within sixty (60) days following receipt by the Trustee of a written
request therefor from such holder's personal representative, or surviving joint
tenant(s), tenant by the entirety or tenant(s) in common.
The price to be paid by the Company for all Notes presented to it for
redemption pursuant to these provisions is 100% of the principal amount thereof
to be redeemed, plus accrued but unpaid interest on such principal amount to the
date of payment.
In the case of Notes registered in the name of banks, trust companies
or broker-dealers who are members of a national securities exchange or the
National Association of Securities Dealers, Inc. ("Qualified Institutions"), the
$25,000 per holder limitation applies to each beneficial owner of Notes held by
any Qualified Institution as if such beneficial owner were a separate holder. A
Note held in tenancy by the entirety, joint tenancy or tenancy in common will be
deemed to be held by a single holder, and the death of a tenant by the entirety,
joint tenant or tenant in common will be deemed the death of a holder. The death
of a person who, during his or her lifetime, was entitled to substantially all
of the beneficial ownership interest of a Note, will be deemed the death of the
holder, regardless of the registered holder. For purposes of a holder's request
for redemption and a request for redemption on behalf of a deceased holder, such
beneficial interest shall be deemed to exist if the holder certifies street name
or nominee ownership, ownership by a custodian for the benefit of a minor under
the Uniform Gifts to Minors Act, community property or other joint ownership
arrangements between a husband and wife (including individual retirement
accounts or Xxxxx plans maintained solely by or for the holder or decedent, or
by or for the holder or decedent and his or her spouse) and trusts and certain
other arrangements whereby a person has substantially all of the beneficial
ownership interests in the Note during his or her lifetime. Beneficial interests
shall include the power to sell, transfer or otherwise dispose of a Note and the
right to receive the proceeds therefrom, as well as interest and principal
payable with respect thereto.
Notes may be presented for redemption by delivering to the Trustee at
its main office as defined in the Indenture: (a) a written request for
redemption, in a form satisfactory to the Trustee signed by the registered
holder or his or her duly authorized representative, (b) the Note to be
redeemed, (c) in the case of a surviving tenant or personal representative of a
deceased holder or beneficial owner, appropriate evidence of authority to make
such request. Qualified Institutions must submit evidence, satisfactory to the
Trustee, that they hold Notes on behalf of such beneficial owner and must
certify that the aggregate amount of requests for redemption tendered by such
Qualified Institution on behalf of each beneficial owner in the initial period
or in any subsequent twelve (12) month period does not exceed $25,000.
Any Notes presented for redemption at the option of the holder may be
withdrawn by the person(s) presenting the same upon delivery of a written
request for such withdrawal to the Trustee (a) in cases other than by reason of
death of a holder on or prior to the date that is sixty (60) days prior to the
end of the applicable Redemption Period, or (b) prior to the issuance of a check
in payment thereof or any other form of payment authorized by the Indenture in
the case of Notes presented by reason of the death of a holder.
Notes presented for redemption as set forth above will be redeemed in
order of their receipt by the Trustee, except that Notes presented for payment
in the event of death of a holder will be given priority in order of their
receipt over other Notes. Notes not redeemed in any such period because they
have not been presented prior to October 31 of that period or because of the
Annual Amount Limitations will be held in order of their receipt for redemption
during the following twelve (12) month period(s) until redeemed, unless sooner
withdrawn by the holder. Holders of Notes presented for redemption shall be
entitled to and shall receive scheduled monthly payments of interest thereon on
scheduled Interest Payment Dates until their Notes are redeemed.
In the case of any Notes which are presented for redemption in part
only, upon such redemption the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder of such Notes, without
service charge, a new Note or Notes, of any authorized denomination or
denominations as requested by such holder, in aggregate principal amount equal
to the unredeemed portion of the principal of the Notes so presented. The
Company may redeem, in acceptance of tenders made pursuant hereto, Notes in
excess of the principal amount that the Company is obligated to redeem, and may
purchase Notes in the open market. However, the Company may not use any Notes
purchased in the open market as a credit against its redemption obligations
hereunder.
In the event that there shall occur a Fundamental Structural Change or
a Significant Subsidiary Disposition (as defined in the Indenture), the holder
of this Note shall have the right, subject to certain conditions stated in the
Indenture, to present it for payment prior to maturity, and the Company will
redeem the same (or any portion of the principal amount thereof which is $1,000
or an integral multiple thereof, as the holder shall specify). The $25,000 per
holder limitation and the Five Percent Limitation shall not apply to any such
redemption.
To the extent permitted by, and as provided in, the Indenture, the
Company may, by entering into an indenture or indentures supplemental to the
Indenture, modify, alter, add to or eliminate in any manner any provisions of
the Indenture, or the rights of the holders or the rights and obligations of the
Company, upon the consent, as in the Indenture provided, of the holders of not
less than sixty-six and two-thirds percent (662/3%) in principal amount of the
Notes then outstanding. Notwithstanding the foregoing, no supplemental indenture
shall, without the consent of the holder of each outstanding Note affected
thereby, change the Stated Maturity of the principal of, or any installment of
interest on any Note, or reduce the principal amount thereof or the rate of
interest thereon, reduce the percentage of the aggregate principal amount of
outstanding Notes the consent of the holders of which is required for any
supplemental indenture or for any waiver of compliance with certain provisions
of the Indenture, or modify any of the provisions of the Indenture relating to
the foregoing, all except as provided in the Indenture.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and all interest accrued on all the
Notes at any such time outstanding under the Indenture may be declared, and upon
such declaration shall become, immediately due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that such declaration and its consequence may be waived by
the holders of a majority in principal amount of the Notes then outstanding.
The Notes are issuable as registered Notes without coupons in
denominations of integral multiples of $1,000. Subject to the provisions of the
Indenture, the transfer of this Note is registrable by the registered holder
hereof, in person or by his attorney duly authorized in writing, at the office
or agency of the Company in New York, New York or at any other office or agency
the Company maintains for that purpose on books of the Company to be kept for
that purpose at said office, upon surrender and cancellation of this Note duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee, and thereupon a new fully
registered Note of the same series, of the same aggregate principal amount and
in authorized denominations, will be issued to the transferee or transferees in
exchange therefor; and this Note, with or without others of the same series, may
in like manner be exchanged for one or more new fully registered Notes of the
same series of other authorized denominations but of the same aggregate
principal amount; all as provided in the Indenture. No service charge shall be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge or expense that may be
imposed in relation thereto.
Prior to due presentment for registration of transfer, the Company, the
Trustee or any agent of the Company or the Trustee may deem and treat the person
in whose name this Note shall be registered at any given time upon the Note
Register as the absolute owner of this Note for the purpose of receiving any
payment of, or on account of, the principal and interest on this Note and for
all other purposes whether or not this Note be overdue; and neither the Company
nor the Trustee, nor any agent of the Company or the Trustee shall be bound by
any notice to the contrary.
No recourse under any obligation, covenant or agreement contained in
the Indenture or in any Note, or because of the creation of the indebtedness
represented hereby, shall be had against any incorporator, any past, present or
future stockholder, or any officer or director of the Company or any successor
corporation, as such under any rule of law, statute or constitution.
In any case where the date fixed for the payment of principal or
interest on any of the Notes or the date fixed for redemption thereof shall not
be a business day, then payment of such principal or interest need not be made
on such date, but may be made on the next succeeding business day with
the same force and effect as if made on the date fixed for such payment or
redemption, and no interest shall accrue for the period from or after such date.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[END OF FORM OF NOTES]
#649148.v1
ASSIGNMENT FORM
Via Hand Delivery or Registered Mail, Return Receipt Requested
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Insert assignee's Soc. Sec. or tax I.D. No.)
========================
========================
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________ agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date________________________ Your signature:_______________________________
----------------------------------------
Signature(s) must be guaranteed by an eligible guarantor institution which is a
member of a recognized signature program, i.e., Securities Transfer Agents
Medallion Program ("STAMP"), Stock Exchange Medallion Program ("SEMP") or New
York Stock Exchange Medallion Signature Program ("MSP"). Sign exactly as your
name appears on the Note. If the Assignment Form is executed by a person other
than a registered holder, enclose appropriate evidence of your authority to
effect the assignment.
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TO REDEEM A NOTE PURSUANT TO SECTION 6.1 OF THE INDENTURE, REQUEST A REDEMPTION
FORM AND PROVIDE YOUR NAME AND MAILING ADDRESS, VIA HAND DELIVERY OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED TO:
THE BANK OF NEW YORK
000 XXXXXXX XXXXXX
XXX XXXX, XX 00000
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