SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.3
EXECUTION COPY
Second Supplemental Indenture (this “Second Supplemental Indenture”), dated as of
December 13, 2010, among NSM FORECLOSURE SERVICES INC. (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 Xxxxx Fargo Bank,
National Association, as trustee (the “Trustee”).
WITNESSETH
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 March 26, 2010, providing for the issuance of 10.875% Senior
Notes due 2015 (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 Second 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:
(i) the principal of, interest, premium, if any, and Additional Interest, 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
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(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 Second
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 Second Supplemental Indenture and applicable to this Guarantee). The
Guaranteeing Subsidiary acknowledges that by executing this Second 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.
(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.
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(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.
(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:
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(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 ay 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, its Note
Guarantee and the applicable Registration Rights Agreement 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.
(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 Second 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
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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 SECOND SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(8) Counterparts. The parties may sign any number of copies of this Second
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 Second 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 Second 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 Second
Supplemental Indenture shall bind its Successors, except as otherwise in this Second Supplemental
Indenture. All agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, all as of the date first above written.
| NSM Foreclosure Services Inc. |
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| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | SVP | |||
| Xxxxx Fargo Bank, National Association, as Trustee |
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| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Vice President | |||
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