FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this “
First Supplemental Indenture ”) is executed as
of July 14, 2009 by Impac Mortgage Holdings, Inc., a Maryland
corporation (the “ Company ”), and Wilmington
Trust Company, as Trustee (in such capacity, the “
Trustee ”). Capitalized terms used herein
and not defined shall have the meanings given to them in the
Indenture (as defined below).
RECITALS
WHEREAS, the Company and the Trustee have
heretofore executed and delivered an indenture (the “
Indenture ”), dated as of October 18, 2005;
WHEREAS, the parties hereto desire to amend the
Indenture to terminate the Company’s right to defer interest
payments on the Debt Securities pursuant to Section 2.11
therein;
WHEREAS, Section 9.01(d) of the Indenture
permits, without the consent of the Securityholders, the Company
and the Trustee to enter into supplemental indentures to make any
change that does not adversely affect the rights of any
Securityholder in any material respect; and
WHEREAS, pursuant to Section 9.01 of
the Indenture, each of the Company and the Trustee wish to hereby
consent to the execution of this supplemental indenture.
NOW THEREFORE, this First Supplemental Indenture
Witnessesth:
For and in consideration of the foregoing, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities as follows:
1.
Deletion of Section 2.11 of the Indenture
. Section 2.11 of the Indenture is hereby deleted in its
entirety.
2.
Amendment of Section 3.08 of the Indenture
. Section 3.08 of the Indenture is hereby deleted in its
entirety and replaced with the following:
“If Debt Securities are initially issued
to the Trust or a trustee of such Trust in connection with the
issuance of Trust Securities by the Trust (regardless of whether
Debt Securities continue to be held by such Trust) and
(i) there shall have occurred and be continuing an Event of
Default, or (ii) the Company shall be in default with respect
to its payment of any obligations, then the Company may not (A)
declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Company’s capital stock or (B) make any payment of
principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in
interest to the Debt Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Company (I) in connection with any
