UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF 1934
MFA FINANCIAL, INC.
(Exact Name of Registrant as Specified in Its
Charter)
| Maryland |
|
13-3974868 |
| (State of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
| |
|
|
One Vanderbilt Ave., 48th Floor
New York, New York |
|
10017 |
| (Address of Principal Executive Offices of Registrant) |
|
(Zip Code) |
Securities to be registered pursuant to Section 12(b) of
the Act:
|
Title of Each Class
to be so Registered |
|
Name of Each Exchange on Which
Each Class is to be Registered |
| 8.875% Senior Notes due 2029 |
|
New York Stock Exchange |
If this form relates to the registration
of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c) or
(e), check the following box. x
If this form relates to the registration
of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d) or
(e), check the following box. ¨
If this form relates to the registration
of a class of securities concurrently with a Regulation A offering, check the following box.¨
Securities Act registration statement file
number to which this form relates:
333-267632
Securities to be registered pursuant to Section 12(g) of
the Act:
None.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT’S SECURITIES TO BE REGISTERED.
MFA Financial, Inc. (the “Registrant”), has filed
with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) under the Securities
Act of 1933, as amended, a prospectus supplement dated January 8, 2024 (the “Prospectus Supplement”) to the prospectus
dated September 27, 2022 (the “Base Prospectus” and, collectively with the Prospectus Supplement, the “Prospectus”)
contained in the Registrant’s effective Registration Statement on Form S-3 (Registration No. 333-267632), relating to
the Registrant’s 8.875% Senior Notes due 2029 (the “Notes”) to be registered hereunder.
The information required by this item is incorporated by reference
to the information contained and incorporated by reference in the sections captioned “Description of the Notes” and “Description
of Debt Securities” in the Prospectus.
ITEM 2. EXHIBITS.
| Exhibit |
|
|
| No. |
|
Description |
| |
|
|
| 3.1 |
|
Amended
and Restated Articles of Incorporation of the Registrant, dated April 8, 1998 (incorporated herein by reference to Exhibit 3.1
to the Registrant’s Form 8-K, dated April 24, 1998). |
| |
|
|
| 3.2 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated August 5, 2002 (incorporated herein
by reference to Exhibit 3.1 to the Registrant’s Form 8-K, dated August 13, 2002). |
| |
|
|
| 3.3 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated August 13, 2002 (incorporated herein
by reference to Exhibit 3.3 to the Registrant’s Form 10-Q for the quarter ended September 30, 2002). |
| |
|
|
| 3.4 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated December 29, 2008 (incorporated
herein by reference to Exhibit 3.1 to the Registrant’s Form 8-K, dated December 29, 2008). |
| |
|
|
| 3.5 |
|
Articles
of Amendment (Articles Supplementary) to the Amended and Restated Articles of Incorporation of the Registrant, dated January 1,
2010 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Form 8-K, dated January 5, 2010).
|
| |
|
|
| 3.6 |
|
Articles
Supplementary of the Registrant, dated March 8, 2011 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s
Form 8-K, dated March 11, 2011). |
| |
|
|
| 3.7 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated May 24, 2011 (incorporated by reference
to Exhibit 3.1 to the Registrant’s Form 8-K, dated May 26, 2011). |
| |
|
|
| 3.8 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated April 4, 2022 (incorporated herein
by reference to Exhibit 3.1 to the Registrant’s Form 8-K, dated April 4, 2022). |
| |
|
|
| 3.9 |
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation of the Registrant, dated April 4, 2022 (incorporated herein
by reference to Exhibit 3.2 to the Registrant’s Form 8-K, dated April 4, 2022). |
| |
|
|
| 3.10 |
|
Articles
Supplementary of the Registrant, dated April 22, 2004, designating the Registrant’s 8.50% Series A Cumulative Redeemable
Preferred Stock (incorporated herein by reference to Exhibit 3.4 to the Registrant’s Form 8-A, dated April 23,
2004). |
| |
|
|
| 3.11 |
|
Articles
Supplementary of the Registrant, dated April 12, 2013, designating the Registrant’s 7.50% Series B Cumulative Redeemable
Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Form 8-K, dated April 15,
2013). |
| |
|
|
| 3.12 |
|
Articles
Supplementary of the Registrant, dated February 28, 2020, designating the Registrant’s 6.50% Series C Fixed-to-Floating
Rate Cumulative Redeemable Preferred Stock (incorporated herein by reference to Exhibit 3.10 to the Company’s Registration
Statement on Form 8-A filed on February 28, 2020). |
| |
|
|
| 3.13 |
|
Amended
and Restated Bylaws of the Registrant (as amended and restated through April 10, 2017) (incorporated herein by reference to
Exhibit 3.1 to the Registrant’s Form 8-K, dated April 12, 2017). |
| |
|
|
| 4.1 |
|
Description
of the Registrant’s securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 (incorporated
by reference to Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed February 21, 2020). |
| 4.2 |
|
Specimen of Common Stock Certificate of the Registrant (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-4, dated February 12, 1998). |
| |
|
|
| 4.3 |
|
Specimen of certificate representing the 7.50% Series B Cumulative Redeemable Preferred Stock (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Form 8-K, dated April 15, 2013). |
| |
|
|
| 4.4 |
|
Specimen of certificate representing the 6.50% Series C Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock. (incorporated herein by reference to Exhibit 4.4 to the Company’s Registration Statement on Form 8-A filed on February 28, 2020). |
| |
|
|
| 4.7 |
|
Indenture, dated June 3, 2019, between the Registrant and Wilmington Trust, National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Form 8-K, dated June 3, 2019 ). |
| |
|
|
| 4.8 |
|
First Supplemental Indenture, dated June 3, 2019, between the Registrant and Wilmington Trust, National Association, as Trustee (incorporated herein by reference to Exhibit 4.2 to the Registrant’s Form 8-K, dated June 3, 2019). |
| |
|
|
| 4.9* |
|
Second Supplemental Indenture, dated January 11, 2024, between the Registrant and Wilmington Trust, National Association, as Trustee. |
| |
|
|
| 4.10 |
|
Form of 6.25% Convertible Senior Notes due 2024 (incorporated herein by reference to Exhibit 4.3 to the Registrant’s Form 8-K, dated June 3, 2019). |
| |
|
|
| 4.11* |
|
Form of 8.875% Senior Notes due 2029 (attached as Exhibit A to the Second Supplemental Indenture, filed as Exhibit 4.9 hereto). |
* Filed herewith.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
Dated: January 11, 2024
| |
MFA FINANCIAL, INC. |
| |
|
|
| |
By: |
/s/ Harold E. Schwartz |
| |
Name: |
Harold E. Schwartz |
| |
Title: |
Senior Vice President and General Counsel |
Exhibit 4.9
MFA Financial, Inc.
and
Wilmington Trust, National Association
as Trustee
Second Supplemental Indenture
Dated
as of January 11, 2024
to the Indenture
Dated as of June 3, 2019
8.875%
Senior Notes due 2029
TABLE OF CONTENTS
Page
| Article 1 |
| |
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
| |
| Section 1.01 |
Scope of Supplemental Indenture |
3 |
| Section 1.02 |
Definitions |
4 |
| |
|
|
| Article 2 |
| |
|
|
| THE SECURITIES |
| |
| Section 2.01 |
Title and Terms; Payments |
7 |
| Section 2.02 |
Forms |
8 |
| Section 2.03 |
Transfer and Exchange |
9 |
| Section 2.04 |
Payments on the Securities |
12 |
| |
|
|
| Article 3 |
| |
| REDEMPTION OF SECURITIES |
| |
|
|
| Section 3.01 |
Optional Redemption of the Securities |
13 |
| Section 3.02 |
Notice of Optional Redemption; Selection of Securities |
14 |
| Section 3.03 |
Payment of Securities Called for Redemption by the Company |
14 |
| Section 3.04 |
No Sinking Fund |
15 |
| |
|
|
| Article 4 |
| |
| REPURCHASE OF SECURITIES |
| |
| Section 4.01 |
Obligation to Offer to Repurchase Upon a Change of Control Repurchase Event |
15 |
| Section 4.02 |
Securities Purchased in Whole or in Part |
16 |
| Section 4.03 |
Covenant To Comply with Applicable Laws upon Purchase of Securities |
17 |
| Section 4.04 |
Repayment to the Company |
17 |
| |
|
|
| Article 5 |
| |
| INFORMATION RIGHTS |
| |
|
|
| Section 5.01 |
Information Rights |
17 |
| Section 5.02 |
Duty to Review |
17 |
| Article 6 |
| |
| MISCELLANEOUS |
| |
| Section 6.01 |
Effect on Successors and Assigns |
18 |
| Section 6.02 |
Governing Law; Jurisdiction; Waiver of Jury Trial |
18 |
| Section 6.03 |
No Security Interest Created |
18 |
| Section 6.04 |
Trust Indenture Act |
18 |
| Section 6.05 |
Benefits of Supplemental Indenture |
18 |
| Section 6.06 |
Calculations |
19 |
| Section 6.07 |
Execution in Counterparts |
19 |
| Section 6.08 |
Notices |
19 |
| Section 6.09 |
Ratification of Base Indenture |
19 |
| Section 6.10 |
The Trustee |
19 |
| Section 6.11 |
No Recourse Against Others |
19 |
| |
|
|
| EXHIBIT |
|
|
| Exhibit A Form of Security |
SECOND
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 11, 2024, between MFA Financial, Inc.,
a Maryland corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”),
a national banking association organized under the laws of the United States, as trustee under the Indenture dated as of June 3,
2019, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “Base
Indenture”).
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered the
Base Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s unsecured senior
debt Securities, in an unlimited aggregate principal amount, in one or more series to be established by the Company under, and authenticated
and delivered as provided in, the Base Indenture;
WHEREAS, Section 901(4) of the Base Indenture
provides for the Company and the Trustee to enter into supplemental indentures to the Base Indenture to establish the form and terms of
Securities of any series as contemplated by Articles Two and Three of the Base Indenture;
WHEREAS, the Board of Directors has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS,
pursuant to the terms of the Base Indenture, the Company has authorized the creation and issuance under this Supplemental Indenture of
its 8.875% Senior Notes due 2029 (the “Securities”), the form and substance of such Securities and the terms,
provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture; and
WHEREAS, all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Securities, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the Company have been performed, and the execution and delivery of
this Supplemental Indenture have been duly authorized in all respects, and the Company has requested that the Trustee execute and deliver
this Supplemental Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH,
for and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually agreed, for the benefit
of the Company and the equal and proportionate benefit of all Holders, as follows:
Article 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Scope
of Supplemental Indenture. The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture
shall be applicable only with respect to, and shall govern only the terms of (and only the rights of the Holders and the obligations
of the Company with respect to), the Securities, which may be issued from time to time, and shall not apply to any other securities that
may be issued under the Base Indenture (or govern the rights of the Holders or the obligations of the Company with respect to any such
other securities) unless a supplemental indenture with respect to such other securities specifically incorporates such changes, modifications
and supplements. The provisions of this Supplemental Indenture shall, with respect to the Securities, supersede any corresponding provisions
in the Base Indenture. Subject to the preceding sentence, and except as otherwise provided herein, the provisions of the Base Indenture
shall apply to the Securities and govern the rights of the Holders of the Securities and the obligations of the Company and the Trustee
with respect thereto.
Section 1.02 Definitions.
For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(i) the
terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural
as well as the singular; and
(ii) all
words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base
Indenture.
“Applicable
Procedures” means, with respect to any matter at any time, the policies and procedures of the Depository, if any, that are applicable
to such matter at such time.
“Base
Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture, as such instrument may be supplemented
from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the
applicable provisions of the Base Indenture, including, for all purposes of the Base Indenture, this Supplemental Indenture and any such
other supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Base Indenture,
this Supplemental Indenture and any other such supplemental indentures, respectively.
“Business
Day” means, notwithstanding anything to the contrary in Section 101 of the Base Indenture, any day other than a Saturday,
a Sunday or a day on which the Trustee or the Federal Reserve Bank of New York is authorized or required by law, regulation or executive
order to close or to be closed and, when used with respect to payments, any day other than a Saturday, a Sunday or a day on which trust
companies or banking institutions in the place of payment are authorized or obligated by law, regulation or executive order to close or
to be closed.
“Capital
Stock” means, for any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) the equity of such Person, but excluding any debt securities convertible into such
equity.
“Change
of Control” means the occurrence of the following: (a) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the Commission thereunder as in effect
on the date hereof), of Equity Interests representing more than 50% of the aggregate Ordinary Voting Power of our issued and outstanding
Equity Interests; (b) occupation of a majority of the seats (other than vacant seats) on our board of directors by Persons who were
neither (i) nominated by our board of directors nor (ii) appointed by our board of directors; or (c) the acquisition of
direct or indirect Control of us by any Person or group (within the meaning of the Exchange Act and the rules of the Commission thereunder
as in effect on the date of the closing of the offering of the Securities) not in Control of the Company on the date of the closing of
the offering of the Securities; provided that, for the purposes of this definition, no Change of Control shall be deemed to occur
by reason of the Company becoming a wholly owned Subsidiary of a Successor Parent.
“Change
of Control Repurchase Event” means the occurrence of a Change of Control.
“Close
of Business” means 5:00 p.m., New York City time.
“Commission”
means the Securities and Exchange Commission.
“Company”
has the meaning specified in the first paragraph of this Supplemental Indenture, and subject to the provisions of Section 801 of
the Base Indenture, shall include its successors and assigns.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
“Custodian”
means the Trustee, as custodian with respect to the Securities (so long as the Securities constitute Global Securities), or any successor
entity.
“Default”
means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Equity
Interests” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests
in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock
of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of Capital
Stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Form of
Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 1 to the
Form of Security attached hereto as Exhibit A.
“Global
Security” means a Security which is executed by the Company and authenticated and delivered to the Depository or its nominee,
all in accordance with the Indenture and pursuant to a Company Order, which shall be registered in the name of the Depository or its nominee
and which shall represent the amount of uncertificated Securities as specified therein.
“Holder”
means, notwithstanding anything to the contrary in Section 101 of the Base Indenture, the Person in whose name a Security is registered
in the Security Register.
“Indenture”
means, notwithstanding anything to the contrary in Section 101 of the Base Indenture, the Base Indenture, as originally executed
and as supplemented by this Supplemental Indenture, each as may be amended or supplemented from time to time.
“Interest
Payment Date” means, with respect to the payment of interest on the Securities and notwithstanding anything to the contrary
in Section 101 of the Base Indenture, each February 15, May 15, August 15 and November 15 of each year, beginning
on May 15, 2024.
“Issue
Date” means, with respect to the Securities, January 11, 2024.
“Maturity
Date” means, with respect to any Security and the payment of the principal amount thereof, February 15, 2029.
“Ordinary
Voting Power” means, with respect to any Person, the power to elect the directors (or functional equivalent) of such Person.
“Paying
Agent” has the meaning set forth in the Base Indenture and shall be the Person authorized by the Company to pay the principal
amount of and interest on, any Securities on behalf of the Company.
“Physical
Securities” means any non-Global Security issued pursuant to Section 2.03 hereof that is in definitive, fully registered
form, without interest coupons.
“Preliminary
Prospectus Supplement” means the Preliminary Prospectus Supplement of the Company, dated January 8, 2024 and relating to
the offering and sale of the Securities, to the Prospectus of the Company dated September 27, 2022.
“Redemption
Date” has the meaning specified in Section 3.01 hereof.
“Regular
Record Date” means, with respect to any Interest Payment Date, February 1 (whether or not a Business Day), May 1 (whether
or not a Business Day), August 1 (whether or not a Business Day) or November 1 (whether or not a Business Day), as the case
may be, immediately preceding such Interest Payment Date.
“Security”
or “Securities” has the meaning specified in the fourth paragraph of the Recitals of this Supplemental Indenture, notwithstanding
anything to the contrary in Section 101 of the Base Indenture.
“Successor Parent” means, means
any Person for which Equity Interests of such Person representing more than 50% of the aggregate Ordinary Voting Power of the issued and
outstanding Equity Interests of such Person immediately after the time we become a wholly owned Subsidiary of such Person, are beneficially
owned (within the meaning of the Exchange Act and the rules of the Commission thereunder as in effect on the date hereof) by one
or more Persons that beneficially owned Equity Interests representing more than 50% of the aggregate Ordinary Voting Power of our issued
and outstanding Equity Interests immediately prior to our becoming a wholly owned Subsidiary of such Person and in substantially the same
proportion as immediately prior to our becoming a wholly owned Subsidiary of such Person.
“Supplemental
Indenture” has the meaning specified in the first paragraph hereof, as such instrument may be supplemented from time to time
by one or more indentures supplemental hereto, entered into pursuant to the applicable provisions of the Base Indenture and this Supplemental
Indenture, including, for all purposes of this Supplemental Indenture and any such other supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern the Base Indenture, this Supplemental Indenture and any other such supplemental
indenture, respectively.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of the Base Indenture and this Supplemental Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder.
“U.S.”
or “United States” means the United States of America.
Article 2
THE
SECURITIES
Section 2.01 Title
and Terms; Payments.
(a) Establishment;
Designation. Pursuant to Section 301 of the Base Indenture, there is hereby established and authorized a new series of Securities
under the Indenture, which series of Securities shall be designated the “8.875% Senior Notes due 2029.”
(b) Initial
Issuance. Subject to Section 2.01(c) hereof, the aggregate principal amount of Securities to be authenticated and
delivered on the date hereof is limited to $115,000,000. In addition, the Company may execute, and the Trustee may authenticate and deliver,
in each case, in accordance with Section 303 of the Base Indenture, an unlimited aggregate principal amount of additional Securities
upon the transfer, exchange, or purchase of Securities pursuant to Sections 304, 305 and 306 of the Base Indenture and Section 3.03
hereof.
(c) Further
Issues. The Company may, without the consent of the Holders, issue additional Securities under the Indenture with the same
terms and the same CUSIP number as the Securities initially issued under the Indenture in an unlimited aggregate principal amount; provided,
that the Company may issue such additional Securities only if they are part of the same issue (and part of the same series) as the Securities
initially issued hereunder for U.S. federal income tax purposes. Any such additional Securities will, for all purposes of the Indenture,
including waivers, amendments and offers to purchase, be treated as part of the same series as the Securities initially issued under
the Indenture.
(d) Purchases.
The Company and its Subsidiaries may from time to time purchase Securities in open market purchases in negotiated transactions or
otherwise without giving prior notice to or obtaining any consent of the Holders. Any Securities purchased by the Company or any of its
Subsidiaries pursuant to the foregoing sentence or otherwise will be retired and will no longer be Outstanding under the Indenture
(e) Denominations.
Pursuant to Sections 301 and 302 of the Base Indenture, the Securities will be issued only in minimum denominations of $25.00 and
integral multiples of $25.00 in excess thereof.
Section 2.02 Forms.
(a) In
General. Pursuant to Article Two of the Base Indenture, the Securities will be substantially in the forms set forth in Exhibit A
hereto, and may include such insertions, omissions, substitutions and other variations as are required or permitted by the Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
Notwithstanding Section 305 of the Base Indenture,
each Security will bear a Trustee’s certificate of authentication substantially in the form included in Exhibit A hereto.
Each Security will also bear the Form of Assignment and Transfer.
Any
Security that is a Global Security will bear a legend substantially in the form of the legend set forth in Exhibit A hereto
and shall also bear the “Schedule of Increases and Decreases of Global Security” set forth in Annex A
to Exhibit A hereto.
The terms and provisions contained in the Securities
will constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However,
to the extent that any provision of any Security conflicts with the express provisions of the Indenture, the provisions of this Indenture
will govern and control.
(b) Initial
and Subsequent Form of Securities. The Company hereby initially appoints The Depository Trust Company as the Depository for the
Securities, which initially shall be issued in the form of one or more Global Securities without interest coupons (i) registered
in the name of Cede & Co., as nominee of the Depository, and (ii) delivered to the Trustee as custodian for the Depository.
So long as the Securities are eligible for book-entry
settlement with the Depository, unless otherwise required by law, and except to the extent provided in Section 2.03(b)(1) through
(3) hereof, all Securities will be represented by one or more Global Securities.
(c) Global
Securities. Each Global Security will represent the aggregate principal amount of the then Outstanding Securities endorsed thereon
and provide that it represents such aggregate principal amount of the then Outstanding Securities, which aggregate principal amount may,
from time to time, be reduced or increased to reflect transfers, exchanges, conversions or purchases by the Company.
Only the Trustee, or the Custodian holding such
Global Security for the Depository, at the direction of the Trustee, may endorse a Global Security to reflect the amount of any increase
or decrease in the aggregate principal amount of the then Outstanding Securities represented thereby, and whenever the Holder of a Global
Security delivers instructions to the Trustee to increase or decrease the aggregate principal amount of the then Outstanding Securities
represented by a Global Security in accordance with the Indenture and the Applicable Procedures, the Trustee, or the Custodian holding
such Global Security for the Depository, at the direction of the Trustee, will endorse such Global Security to reflect such increase or
decrease in the aggregate principal amount of the then Outstanding Securities represented thereby. None of the Trustee, the Company or
any agent of the Trustee or the Company will have any responsibility or bear any liability for any aspect of the records relating to or
payments made on account of the ownership of any beneficial interest in a Global Security or with respect to maintaining, supervising
or reviewing any records relating to such beneficial interest.
Members
of, or participants in, the Depository (“Agent Members”) shall have no rights under the Indenture with respect
to any Global Security held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Security, and Cede &
Co., or such other Persons designated by the Depository as its nominee, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of any Holder.
Section 2.03 Transfer
and Exchange.
(a) In
General. Notwithstanding anything to the contrary in Article Three of the Base Indenture, the Company is not required to transfer
or exchange any Securities or portions thereof that have been surrendered for purchase in accordance with Article 3 hereof,
and a written form of transfer substantially in the form of the Form of Assignment and Transfer will be deemed to be a written instrument
of transfer satisfactory to the Company and the Security Registrar.
At such time as all interests in a Global Security
have been purchased, cancelled or exchanged for Securities in certificated form, such Global Security shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and instructions existing between the Depository and the Custodian for
the Global Security. At any time prior to such cancellation, if any interest in a Global Security is purchased, cancelled or exchanged
for Securities in certificated form, the principal amount of such Global Security shall, in accordance with the standing procedures and
instructions existing between the Depository and the Custodian for the Global Security, be appropriately reduced, and an endorsement
shall be made on such Global Security, by the Trustee or the Custodian for the Global Security, at the direction of the Trustee, to reflect
such reduction.
(b) Global
Securities. Notwithstanding anything to the contrary in Section 305 of the Base Indenture, every transfer and exchange of a beneficial
interest in a Global Security will be effected through the Depository in accordance with the Applicable Procedures and the provisions
of the Indenture, and each Global Security may be transferred only as a whole and only (A) by the Depository to a nominee of the
Depository, (B) by a nominee of the Depository to the Depository or to another nominee of the Depository, or (C) by the Depository
or any such nominee to a successor Depository or a nominee of such successor Depository.
(c) Holders
Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any interest (subject to Section 307 of the Base Indenture) on such Security at the Maturity
Date, in connection with a Change of Control Repurchase Event, and for all other purposes whatsoever, for distribution of notices to such
Holders or solicitations of their consent, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding anything to the contrary in Section 305
of the Base Indenture:
(1) Each
Global Security will be exchanged for Physical Securities if the Depository delivers notice to the Company that the Depository is unwilling,
unable or no longer permitted under applicable law to continue to act as Depository, and, in each case, the Company promptly delivers
a copy of such notice to the Trustee and the Company fails to appoint a successor Depository within 90 days after receiving notice from
the Depository.
(2) If
an Event of Default has occurred and is continuing, any owner of a beneficial interest in a Global Security may exchange such beneficial
interest for Physical Securities by delivering a written request to the Depository, who shall in turn notify the Security Registrar.
(3) If
the Company notifies the Depository and Trustee that the Securities shall no longer be represented by a Global Security and the beneficial
owners of the majority of the principal amount of such Global Security (or portion thereof) consent to an exchange of Global Securities
for Physical Securities, the Company may exchange all beneficial interests in such Global Security (or portion thereof) for Physical Securities.
In the case of an exchange for Physical Securities
under clause (1) above:
(A) each
Global Security will be deemed surrendered to the Trustee for cancellation;
(B) the
Trustee will cause each Global Security to be cancelled in accordance with the Applicable Procedures; and
(C) the
Company, in accordance with Section 303 of the Base Indenture, will promptly execute, and, upon receipt of a Company Request, the
Trustee, in accordance with Section 303 of the Base Indenture, will promptly authenticate and deliver, for each beneficial interest
in each Global Security so exchanged, an aggregate principal amount of Physical Securities equal to the aggregate principal amount of
such beneficial interest, registered in such names and in such authorized denominations as the Depository specifies, and bearing any legends
that such Physical Securities are required to bear under this Indenture.
In the case of an exchange for Physical Securities
under clause (2) above:
(A) the
Security Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the owner of the beneficial
interest to be exchanged, the aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Security, in
each case if and as such information is provided to the Security Registrar by the Depository;
(B) the
Company, in accordance with Section 303 of the Base Indenture, will promptly execute, and, upon receipt of a Company Request, the
Trustee, in accordance with Section 303 of the Base Indenture, will promptly authenticate and deliver to such owner, for the beneficial
interest so exchanged by such owner, Physical Securities registered in the name specified by the Depository having an aggregate principal
amount equal to the aggregate principal amount of such beneficial interest and bearing any legends that such Physical Securities are required
to bear under this Indenture; and
(C) the
Security Registrar, in accordance with the Applicable Procedures, will cause the principal amount of such Global Security to be decreased
by the aggregate principal amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Security are
so exchanged, such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global
Security to be cancelled in accordance with the Applicable Procedures.
In the case of an exchange for Physical Securities
under clause (3) above:
(A) the
Company shall deliver notice of such request to the Security Registrar and the Trustee, which notice will identify each owner of a beneficial
interest to be exchanged, the aggregate principal amount of each such beneficial interest and the CUSIP of the relevant Global Security;
(B) the
Company, in accordance with Section 303 of the Base Indenture, shall promptly execute, and, upon receipt of a Company Request, the
Trustee, in accordance with Section 303 of the Base Indenture, will promptly authenticate and deliver to each such beneficial owner,
Physical Securities registered in such beneficial owner’s name having an aggregate principal amount equal to the aggregate principal
amount of its exchanged beneficial interest and bearing any legends that such Physical Securities are required to bear under this Indenture
and any applicable law; and
(C) the
Security Registrar, in accordance with the Applicable Procedures, will cause the principal amount of each relevant Global Security to
be decreased by the aggregate principal amount of the beneficial interests so exchanged. If all of the beneficial interests in a Global
Security are so exchanged, such Global Security will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause
such Global Security to be cancelled in accordance with the Applicable Procedures.
In each of the cases described in clauses (1),
(2) and (3) above, the Company, the Security Registrar and the Trustee may rely on the Depository to provide all names of beneficial
owners and their respective principal amounts beneficially owned and the Company may issue Physical Securities registered in the names
and amounts so provided by the Depository.
(d) Physical
Securities. Except to the extent otherwise provided in Section 2.03(a) hereof, Physical Securities may be transferred
or exchanged in accordance with Section 305 of the Base Indenture.
Section 2.04 Payments
on the Securities.
(a) In
General. Each Security will accrue cash interest at a rate equal to 8.875% per annum from the most recent date to which interest has
been paid or duly provided for, or, if no interest has been paid or duly provided for, the Issue Date. Interest on a Security will cease
to accrue upon the earliest of the Maturity Date and subject to the provisions of Article 4 hereof, any Repurchase Price
Payment Date for such Security. Interest on any Security will be payable quarterly in arrears on each Interest Payment Date, beginning
May 15, 2024, to the Holder of such Security as of the Close of Business on the Regular Record Date immediately preceding the applicable
Interest Payment Date. As provided in Section 310 of the Base Indenture, interest will be computed on the basis of a 360-day year
comprised of twelve 30- day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.
The Securities will mature on the Maturity Date,
and on the Maturity Date, each Holder of a then Outstanding Security will be entitled on such date to receive $25.00 in cash for each
$25.00 in principal amount of then Outstanding Securities held, together with accrued and unpaid interest to, but not including, the Maturity
Date on such then Outstanding Securities.
Notwithstanding anything to the contrary, if the
Maturity Date or any Interest Payment Date, Redemption Date or Repurchase Price Payment Date falls, or if any payment, delivery, notice
or other action by the Company is otherwise due, on a day that is not a Business Day, then any action to be taken on such date need not
be taken on such date, but may be taken on the immediately following Business Day with the same force and effect as if taken on such date,
and no additional interest will accrue and no Default shall occur on account of such delay.
(b) Method
of Payment. The Company shall pay the principal of, or the Repurchase Price for any Physical Security to the Holder of such Security
in cash at the designated office of the Paying Agent in the United States, prior to 10:00 a.m. on the relevant payment or settlement
date, as the case may be. Interest on any Physical Security will be payable by the Company (i) to Holders having an aggregate principal
amount of $2,000,000 or less, by check mailed to the Holders of such Security and (ii) to Holders having an aggregate principal amount
of more than $2,000,000, either by check mailed to each Holder or, upon application by such a Holder to the Security Registrar not later
than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United
States, which application will remain in effect until the Holder notifies, in writing, the Security Registrar to the contrary.
The Company shall pay the principal of, interest
on, the Repurchase Price for, any Global Security to the Depository by wire transfer of immediately available funds on the relevant payment
date in accordance with Applicable Procedures.
(c) Defaulted
Payments. The Company shall pay any interest on the Securities that is payable, but is not punctually paid or duly provided for on
the applicable Interest Payment Date, in accordance with Section 307 of the Base Indenture.
Article 3
REDEMPTION
OF SECURITIES
Solely for the purpose of the Securities, Article Eleven
of the Base Indenture shall be deleted and shall be replaced in the entirety by this Article 3. Any reference in the Base Indenture
to Article Eleven shall, with respect to the Securities, be deemed to be a reference to Article 3 of this Supplemental Indenture,
and reference in the Base Indenture to Sections 1103, 1104, 1106 and 1107 shall, with respect to the Securities, be deemed replaced with
references to Sections 3.02, 3.02, 3.03 and 3.02, respectively, in this Supplemental
Indenture.
Section 3.01 Optional
Redemption of the Securities.
(a) On
or after February 15, 2026, the Company may redeem for cash all or any portion of the Securities, at the Company’s option,
at a redemption price equal to 100% of the principal amount of the Securities to be redeemed, plus accrued and unpaid interest to, but
excluding, the redemption date (the “Redemption Price”). Notwithstanding the foregoing, interest due on an interest
payment date falling on or prior to a redemption date will be payable to holders at the close of business on the record date for such
interest payment date. The Company is required to give notice of such redemption not less than 30 days nor more than 60 days prior to
the redemption date (the “Redemption Date”) to each holder at its address appearing in the securities register maintained
by the Trustee.
Section 3.02 Notice
of Optional Redemption; Selection of Securities.
(a) In
case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of the Securities pursuant to Section 3.01,
it shall fix a date for redemption and it or, at its written request received by the Trustee and the Paying Agent not fewer than five
Business Days prior (or such shorter period of time as may be acceptable to the Paying Agent) to the date the notice of redemption is
to be delivered accompanied by an Officers’ Certificate, the Trustee in the name of and at the expense of the Company, shall deliver
or cause to be delivered a notice of such redemption not fewer than 30 calendar days nor more than 60 calendar days prior to the Redemption
Date to each Holder of Securities so to be redeemed in whole or in part at its last address as the same appears on the Security Register,
setting forth the information to be stated in such notice as provided in Section 1104 of the Base Indenture. If fewer than all the
Securities are to be redeemed, the notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any).
In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that, on and after the Redemption Date, upon surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion thereof will be issued.
(b) Whenever
any Securities are to be redeemed, the Company shall give the Trustee and the Paying Agent written notice of the Redemption Date, together
with an Officers’ Certificate as to the aggregate principal amount of Securities to be redeemed, not fewer than 15 calendar days
prior to the Redemption Date.
(c) On
or prior to the Redemption Date specified in the notice of redemption given as provided in this Section 3.02, the Company
shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in the Base Indenture) an amount of money in immediately available funds sufficient to redeem on the Redemption Date all the Securities
(or portions thereof) so called for redemption (other than those theretofore surrendered for exchange) at the appropriate Redemption Price,
together with accrued interest to the Redemption Date; provided that if such payment is made on the Redemption Date, it must be received
by the Paying Agent, by 10:00 a.m., New York City time, on such date. The Company shall be entitled to retain any interest, yield or gain
on amounts deposited with the Paying Agent pursuant to this Section 3.02 in excess of amounts required hereunder to
pay the Redemption Price; provided, however, that neither the Trustee nor the Paying Agent shall be under any liability for interest on
any money received by it hereunder except as otherwise agreed to with the Company in writing.
(d) In
the event the Company elects to redeem less than all of the Securities, the particular Securities to be redeemed will be selected by
the Trustee in accordance with policies and procedures of The Depository Trust Company.
Section 3.03 Payment
of Securities Called for Redemption by the Company. If notice of redemption has been given as provided in Section 3.02,
the Securities or portion of Securities with respect to which such notice has been given shall become due and payable on the Redemption
Date at the place or places stated in such notice at the Redemption Price, and unless the Company shall default in the payment of the
amounts owing on the Securities upon such redemption, interest on the Securities or portion of Securities so called for redemption shall
cease to accrue on and after such date and the Securities shall cease to be entitled to any benefit or security under this Supplemental
Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the Redemption Price
thereof. On presentation and surrender of such Securities, the said Securities or the specified portions thereof shall be paid and redeemed
by the Company at the Redemption Price.
Section 3.04 No
Sinking Fund. Article Twelve of the Base Indenture will not apply to the Securities.
Article 4
REPURCHASE
OF SECURITIES
Section 4.01 Obligation
to Offer to Repurchase Upon a Change of Control Repurchase Event.
(a) If
a Change of Control Repurchase Event occurs, unless the Company has exercised its option to redeem the Securities as described above,
the Company will make an offer to each holder of Securities to repurchase all or any part (in a principal amount of $25 and integral multiples
of $25 in excess thereof) of that holder’s Securities (the “Change of Control Offer”) at a repurchase price in
cash equal to 101% of the aggregate principal amount of Securities repurchased plus any accrued and unpaid interest on the Securities
repurchased to, but excluding, the Repurchase Price Payment Date (the “Repurchase Price”).
(b) Within
30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control, but after
the public announcement of the Change of Control, the Company shall give notice to each Holder of Securities, with a written copy to the
Trustee and the Paying Agent. Such notice shall state:
(i) a
description of the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;
(ii) That
the Change of Control Offer is being made pursuant to this Article 3;
(iii) the
Repurchase Price and the date on which the Repurchase Price will be paid, which date shall be a Business Day that is no earlier than 30
days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Repurchase Price
Payment Date”); and
(iv) if
the notice is given prior to the date of consummation of the Change of Control, a statement that the offer to purchase is conditioned
on the Change of Control Repurchase Event occurring on or prior to the Repurchase Price Payment Date.
At the Company’s request accompanied by an Officers’
Certificate, upon at least five (5) Business Days’ notice (or such shorter period as shall be satisfactory to the Trustee),
the Trustee shall mail such notice in the Company’s name and at the Company’s expense; provided, however, that
the form and content of such notice shall be prepared by the Company.
(c) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control
Repurchase Event provisions of the Securities, the Company will comply with the applicable securities laws and regulations and will not
be deemed to have breached the Company’s obligations under the Change of Control Repurchase Event provisions of the Securities by
virtue of such conflict.
(d) On
the Repurchase Price Payment Date, the Company will, to the extent lawful:
(i) accept
for payment all Securities or portions of Securities properly tendered pursuant to the Change of Control Offer;
(ii) deposit
prior to 10:00 a.m., New York City time, on such date with the Paying Agent an amount equal to the Repurchase Price in respect of all
Securities or portions of Securities properly tendered; and
(iii) deliver
or cause to be delivered to the Paying Agent the Securities properly accepted together with an Officers’ Certificate stating the
aggregate principal amount of Securities being purchased.
(e) Notwithstanding
the foregoing, the Company shall not be required to make an offer to repurchase the Securities upon a Change of Control Repurchase Event
if (i) the Company or such Successor Party has given written notice of a redemption as provided under Section 3.01(a) prior
to the occurrence of the Change of Control Repurchase Event; provided that the Company has not failed to pay the Redemption Price on the
Redemption Date or (ii) a third party makes such an offer in respect of the Securities in the manner, at the times and otherwise
in compliance with the requirements for an offer made by the Company and such third party purchases all the Securities properly tendered
and not withdrawn under its offer.
(f) Failure
to pay the Repurchase Price when due in connection with a Change of Control Repurchase Event will constitute an Event of Default.
Section 4.02 Securities
Purchased in Whole or in Part. Any Security that is to be purchased, whether in whole or in part, shall be surrendered at the office
of the Paying Agent (with, if the Company or the Trustee so requires in the case of Physical Securities, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not purchased.
Section 4.03 Covenant
To Comply with Applicable Laws upon Purchase of Securities. In connection with any offer to purchase Securities under Section 4.01,
the Company shall, in each case if required by law, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer
rules under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the
Exchange Act and (iii) otherwise comply with all federal and state securities laws applicable to the Company in connection with
such purchase offer, in each case, so as to permit the rights and obligations under this Section 4.03 to be exercised in
the time and in the manner specified in Section 4.01.
Section 4.04 Repayment
to the Company. To the extent that the aggregate amount of cash deposited by the Company pursuant to this Section 4.04 exceeds
101% of the aggregate principal amount of Securities repurchased plus any accrued and unpaid interest on the Securities repurchased
to, but excluding, the date of repurchase, then, following the Change of Control Repurchase Event payment date, the Paying Agent
shall promptly return any such excess to the Company.
Article 5
INFORMATION
RIGHTS
Section 5.01 Information
Rights. The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall: (1) deliver to the Trustee, within
15 days after the Company files the same with the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall
deliver to the Trustee and file with the Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations.
Section 5.02 Duty
to Review. The Trustee shall have no duty to review or analyze reports delivered to it. Delivery of such reports, information and
documents to the Trustee pursuant to Section 5.01 is for informational purposes only, and the Trustee’s receipt thereof shall
not constitute actual or constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to certificates).
The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the
covenants or with respect to any reports or other documents filed with the Commission or any website under the indenture, or participate
in any conference calls.
Article 6
MISCELLANEOUS
Section 6.01 Effect
on Successors and Assigns. Notwithstanding Section 112 of the Base Indenture, all agreements of the Company, the Trustee, the
Security Registrar and the Paying Agent in this Indenture and the Securities will bind their respective successors.
Section 6.02 Governing
Law; Jurisdiction; Waiver of Jury Trial. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE SECURITIES, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B).
The Company, the Trustee and, by acceptance of
the Securities, each Holder agrees that any suit, action or proceeding arising out of or based upon this Supplemental Indenture or the
transactions contemplated hereby may be instituted in any State or Federal court in The City of New York, New York, and waives any objection
which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the nonexclusive jurisdiction
of such courts in any suit, action or proceeding.
THE COMPANY, THE TRUSTEE AND EACH HOLDER OF THE
SECURITIES BY HIS ACCEPTANCE THEREOF HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.03 No
Security Interest Created. Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to constitute
a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 6.04 Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.
Section 6.05 Benefits
of Supplemental Indenture. Notwithstanding anything to the contrary in Section 112 of the Base Indenture, nothing in this Supplemental
Indenture or in the Securities, expressed or implied, will give to any Person, other than the parties hereto, any Paying Agent, any Authenticating
Agent, any Security Registrar or their successors hereunder or the Holders of the Securities, any benefit or any legal or equitable right,
remedy or claim under this Supplemental Indenture.
Section 6.06 Calculations.
The Company shall be responsible for making all calculations called for under the Securities and this Indenture. The Company shall make
all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders
of Securities. The Company shall provide a schedule of its calculations to the Trustee, and the Trustee is entitled to rely conclusively
upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s
calculations to any Holder upon the request of that Holder at the sole cost and expense of the Company.
Section 6.07 Execution
in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 6.08 Notices.
The Company or the Trustee, by notice given to the other in the manner provided in Section 105 of the Base Indenture, may designate
additional or different addresses for subsequent notices or communications.
Notwithstanding anything to the contrary in Sections
105 and 106 of the Base Indenture, whenever the Company is required to deliver notice to the Holders, the Company shall, by the date
it is required to deliver such notice to the Holders, deliver a copy of such notice to the Trustee, the Paying Agent, and the Security
Registrar. Each notice to the Trustee, the Paying Agent, or the Security Registrar shall be sufficiently given if in writing and delivered
via a PDF transmission by or mailed, first-class postage prepaid to the address most recently sent by the Trustee, the Paying Agent or
the Security Registrar, as the case may be, to the Company.
Section 6.09 Ratification
of Base Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed,
and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein provided. For the avoidance
of doubt, each of the Company and each Holder of Securities, by its acceptance of such Securities, acknowledges and agrees that all of
the rights, privileges, protections, immunities, indemnities and benefits afforded to the Trustee under the Base Indenture are deemed
to be incorporated herein, and shall be enforceable by the Trustee hereunder, in each of its capacities hereunder as if set forth herein
in full.
Section 6.10 The
Trustee. The recitals in this Supplemental Indenture are made by the Company only and not by the Trustee, and all of the provisions
contained in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable
in respect of the Securities and of this Supplemental Indenture as fully and with like effect as set forth in full herein.
Section 6.11 No
Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company shall have any liability for
any obligations of the Company under the Securities, the Indenture or any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder, by accepting a Security, waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities.
[Remainder of the page intentionally left
blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed as of the day and year first above written.
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MFA FINANCIAL, INC. |
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By: |
/s/ Michael C. Roper |
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Name: Michael C. Roper |
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Title: Chief Financial Officer |
Signature Page to Second Supplemental
Indenture
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/ Barry D. Somrock |
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Name: Barry D. Somrock |
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Title: Vice President |
Signature Page to Second Supplemental
Indenture
EXHIBIT A
[FORM OF FACE OF SECURITY]
[For Global Securities, include the following legend:
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
No.: [ ]
CUSIP: 55772X 706
ISIN: US55272X7066
MFA
Financial, Inc.
8.875% Senior Notes due 2029
MFA
Financial, Inc., a Maryland corporation, promises to pay to [ ] [include “Cede &
Co.” for Global Security] or registered assigns, the principal amount of $[[ ] [as revised
by the Schedule of Increases and Decreases of Global Security attached hereto]1
on February 15, 2029 (the “Maturity Date”).
Interest Payment Dates: Each of February 15,
May 15, August 15 and November 15, commencing on May 15, 2024. If an interest payment date falls on a non-business
day, the applicable interest payment will be made on the next business day and no additional interest will accrue as a result of such
delayed payment.
Regular Record Dates: February 1, May 1,
August 1 and November 1.
Additional provisions of this Security are set
forth on the other side of this Security.
1 Include
for Global Securities only.
IN WITNESS WHEREOF, MFA FINANCIAL, INC. has
caused this instrument to be duly signed.
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MFA FINANCIAL, INC. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Wilmington Trust, National Association, as Trustee, certifies that
this is one of the Securities referred to in the within-mentioned Indenture.
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
Dated:
[FORM OF REVERSE OF SECURITY]
MFA FINANCIAL, INC.
8.875% Senior Notes due 2029
This
Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued
under a Indenture dated as of June 3, 2019 (herein called the “Base Indenture”), and as further supplemented by
the Second Supplemental Indenture, dated as of January 11, 2024 (herein called the “Supplemental Indenture” and
the Base Indenture, as supplemented by the Supplemental Indenture, the “Indenture”) by and between the Company and
Wilmington Trust, National Association, herein called the “Trustee”, and reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
not subject to redemption at the option of the Company prior to the Maturity Date and does not benefit from a sinking fund.
At any time on or after February 15, 2026,
the Company may, in accordance with the provisions of Article 3 of the Supplemental Indenture, redeem the Securities for cash, in
whole or in part, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus unpaid interest, if
any, accrued thereon to, but excluding, the Redemption Date.
If a Change of Control Repurchase Event occurs,
unless the Company has exercised its option to redeem the Securities pursuant to Article 4 of the Supplemental Indenture prior to
the occurrence of the Change of Control Repurchase Event, the Company shall make an offer to each Holder of Securities to repurchase all
or any part of that Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities
repurchased plus any accrued and unpaid interest on the Securities repurchased to, but excluding, the Repurchase Price Payment Date.
If an Event of Default with respect to the Company
shall occur and be continuing, the principal of, and accrued and unpaid interest on, the Securities may be declared to be due and payable
in the manner specified in the Indenture.
As provided in and subject to the provisions of
the Indenture, the Company shall make all payments in respect of the Repurchase Price for, and the principal amount of, this Security
to the Holder that surrenders this Security to the Paying Agent to collect such payments in respect of this Security. The Company shall
pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders
of the Securities to be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority
in principal amount of the Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture, or for
the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Security, the Holders of not less than 25% in principal amount of
the Securities at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities at the time Outstanding a direction inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or interest hereon or amounts
due upon conversion on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
or deliver, as the case may be, the principal of (including the Repurchase Price), and interest on this Security at the time, place and
rate, and in the coin and currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered
form without coupons in denominations of $25.00 and integral multiples of $25.00 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities and of like
tenor of a different authorized denomination, as requested by the Holder surrendering the same.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or Trustee may treat the Person in whose name the Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
All defined terms used in this Security that are
defined in the Indenture shall have the meanings assigned to them in the Indenture. If any provision of this Security limits, qualifies
or conflicts with a provision of the Indenture, such provision of the Indenture shall control.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to the Company at the following address:
MFA Financial, Inc.
One Vanderbilt Ave., 48th Floor
New York, NY 10017
Attention: Investor Relations Department
Telephone: 212-207-6400
ABBREVIATIONS
The following abbreviations, when used in the inscription
of the face of this Security, shall be construed as though they were written out in full.
| TEN COM - as tenants in common |
UNIF GIFT MIN ACT |
| |
Custodian |
| |
(Cust) |
| |
|
| |
|
| TEN ENT -as tenants by the entireties |
(Minor) |
| |
|
| JT TEN - as joint tenants with right of survivorship and not as tenants in common |
Uniform Gifts to Minors Act
(State) |
| |
|
| Additional abbreviations may also be used though not in the above list. |
|
ANNEX A
[Include for Global Security]
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial principal amount of Global Security: $115,000,000
| Date |
|
Amount of
Increase in
principal
amount of
Global Security |
|
Amount of
Decrease
in
principal
amount of
Global
Security |
|
Principal
amount of
Global
Security
after
Increase or
Decrease |
|
Notation
by Security
Registrar
or
Custodian |
| |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
ATTACHMENT 1
[FORM OF ASSIGNMENT AND TRANSFER]
For value
received hereby sell(s),
assign(s) and transfer(s) unto (Please insert social security or Taxpayer Identification Number of assignee) the
within Security, and hereby irrevocably constitutes and
appoints to transfer
the said Security on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Security,
the undersigned confirm(s) that such Security is being transferred:
| |
|
| Dated: |
|
|
|
| |
|
| |
|
| |
Signature(s) |
| |
|
| |
Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs: |
| |
|
| |
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) another guarantee program |
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