Application for Qualification of a Trust Indenture — Form T-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: T-3 Application for Qualification of a Trust Indenture 11 54K
5: EX-99.1 Statement of Eligibility 9 24K
2: EX-99.T3A-3 Articles Supplementary of Series A Preferred 10 36K
Stock
3: EX-99.T3C-1 Form of Indenture 81 356K
4: EX-99.T3C-2 Form of First Supplemental Indenture 10 42K
T-3 — Application for Qualification of a Trust Indenture
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
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IMPAC MORTGAGE HOLDINGS, INC.
(Name of applicant)
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20371 Irvine Avenue
Santa Ana Heights, California 92707
(Address of principal executive offices)
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Securities to be Issued Under the Indenture to be Qualified
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Title of Class Amount
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11% Senior Subordinated Debentures due February $35,000,000
15, 2004
Approximate date of proposed public offering:
February 24, 1999
Name and address of agent for service:
Joseph R. Tomkinson
20371 Irvine Avenue
Santa Ana Heights, California 92707
(714) 556-0122
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Copies to:
Thomas J. Poletti, Esq.
Susan B. Kalman, Esq.
David M. Tamman, Esq.
Freshman, Marantz, Orlanski,
Cooper & Klein
9100 Wilshire Boulevard, Suite 800 East
Beverly Hills, California 90212
(310) 273-1870
The Registrant hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this application, or (ii) such date as the Securities and Exchange
Commission, acting pursuant to Section 307(c) of the Act, may determine upon
written request of the Registrant.
GENERAL
1. General Information.
(a) Form of organization. A corporation which elects to be taxed at the
corporate level as a real estate investment trust.
(b) State or other sovereign power under the laws of which organized.
Maryland.
2. Securities Act Exemption Applicable.
Impac Mortgage Holdings, Inc. (the "Company") is relying on the exemption
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act") provided by Section 3(a)(9) thereunder in connection with
the Company's exchange offer as described herein (the "Exchange Offer"). The
Exchange Offer is being made by the Company pursuant to its Offering Circular
dated February 24, 1999 (the "Offering Circular"), and the related Letter of
Transmittal, and consists of an offer to exchange up to $35,000,000 aggregate
principal amount of its 11% Senior Subordinated Debentures due February 15, 2004
(the "Debentures") for up to 5,000,000 shares of its Common Stock, $.01 par
value per share ("Common Stock") (including the associated Preferred Share
Purchase Rights (the "Rights" and together with the Common Stock, the
"Shares")). Unless the Rights become exercisable or separately tradeable prior
to the expiration of the Exchange Offer, a tender of Shares will also constitute
a tender of the associated Rights. The Company will determine an exchange
price (the "Exchange Price") of no greater than 120% nor less than 105% of the
average closing sales price of the Shares as reported by the American Stock
Exchange for the two trading day period ending two trading days prior to the
Expiration Date (the "Average Price"), provided that the maximum Exchange Price
shall not exceed $7.00 per share. The exact maximum principal amount of
Debentures to be exchanged will be a function of the Average Price. The Company
will exchange validly tendered Shares for a principal amount of Debentures equal
to the number of Shares tendered at or below the Exchange Price multiplied by
the Exchange Price. The Company will select as the final Exchange Price the
lowest Exchange Price which would permit the maximum number of Shares to be
exchanged in the Exchange Offer.
There have not been any sales of securities of the same class as the
Debentures, nor are there any such other sales planned, by the Company or by or
through an underwriter at or about the time of the Exchange Offer.
The Company has retained D.F. King & Co., Inc. as the "Information Agent,"
and IBJ Whitehall Bank & Trust Company as the "Exchange Agent" in connection
with the Exchange Offer. The Information Agent and Exchange Agent will only
provide to holders of the Shares information otherwise contained in the Offering
Circular and general information regarding the mechanics of the exchange
process. The Exchange Agent will provide the actual acceptance and exchange
services with respect to the exchange of the Shares and the Debentures. Neither
the Information Agent nor the Exchange Agent will solicit exchanges in
connection with the Exchange Offer or make recommendations as to the acceptance
or rejection of the Exchange Offer. Both the Information Agent and the Exchange
Agent will be paid reasonable fees directly by the Company for their services.
There are no cash payments made or to be made by any holder of the Common
Stock.
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AFFILIATIONS
3. Affiliates.
The following is a list of all direct and indirect subsidiaries of the
Company. Indirect subsidiaries are indented and listed under their direct
parent. Unless otherwise indicated, the basis of control is ownership of equity
securities and all subsidiaries are wholly owned subsidiaries.
Impac Mortgage Holdings, Inc.
A. Impac Funding Corporation (the Company owns 99% of the economic
interest in Impac Funding Corporation, but does not have any voting
power with respect to the shares of Impac Funding Corporation it owns)
1. Impac Secured Assets Corp. (a wholly owned subsidiary of Impac
Funding Corp.)
B. Impac Warehouse Lending Group, Inc. (a wholly owned subsidiary of the
Company)
C. IMH Assets Corp. (a wholly-owned subsidiary of the Company).
MANAGEMENT AND CONTROL
4. Directors and Executive Officers.
[Enlarge/Download Table]
Name Address Office
Joseph R. Tomkinson 20371 Irvine Avenue, Santa Ana Chief Executive Officer and
Heights, California 92707 Chairman
William S. Ashmore 20371 Irvine Avenue, Santa Ana President, Chief Operating
Heights, California 92707 Officer and Director
Richard J. Johnson(1) 20371 Irvine Avenue, Santa Ana Executive Vice President and
Heights, California 92707 Chief Financial Officer
Mary C. Glass Schannault 20371 Irvine Avenue, Santa Ana Senior Vice President
Heights, California 92707
Ronald Morrison 20371 Irvine Avenue, Santa Ana Secretary and General Counsel
Heights, California 92707
H. Wayne Snavely 23550 Hawthorne Blvd. Building Director
One, Suite 110, Torrance,
California 90505
James Walsh 4 Campus Drive, Parsippany, New Director
Jersey 07054
Frank P. Filipps 1601 Market Street, 12th Floor, Director
Philadelphia, Pennsylvania 19103
Stephan R. Peers 2900 Rohrer Drive, Lafayette, Director
California 94549
(1) Mr. Johnson was the Senior Vice President and Secretary of the Company from
its formation until January and July 1998, respectively.
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5. Principal Owners of Voting Securities.
As of February 18, 1999, the following beneficially owned 10% or more of
the voting securities of the Company:
[Download Table]
Percentage of
Name and Complete Amount Voting Securities
Mailing Address Title of Class Owned Owned Owned
Prime Acquisition Corp. Series B 10.5% Cumulative 800,000(1) 14.0(1)
200 Manaroneck Ave. Convertible Preferred Stock
White Plains, NY 10601
(1) Prime Acquisition Corp. ("Prime") is deemed to beneficially own 17% of the
voting securities of the Company as a result of its purchase of 800,000
shares of the Company's Series B 10.5% Cumulative Convertible Preferred
Stock (the "Series B Preferred Stock"). The Series B Preferred Stock does
not have voting rights, absent the occurrence of certain events. Each
share of the Series B Preferred Stock is convertible at Prime's option into
5.050505 shares of the Company's Common Stock, subject to adjustment under
certain circumstances.
UNDERWRITERS
6. Underwriters.
The following are the names and complete mailing addresses of (a) each
person who within three years prior to the date of the filing of this
application, acted as an underwriter of any securities of the Company which were
outstanding on the date of filing this application, and (b) each proposed
principal underwriter of the debentures to be offered:
(a) The only securities of the Company that have been underwritten during
the last three years is its Common Stock. The following were the
underwriters for the Company's issuances of Common Stock for the last
three years:
PaineWebber Incorporated
1285 Avenue of the Americas, 12th Floor
New York, NY 10019
CIBC Oppenheimer Corp.
200 Liberty Street, 39th Floor
New York, NY 10171
EVEREN Securities, Inc.
77 West Wacker Drive, Suite 2900
Chicago, IL 60601-1694
Stifel, Nicolaus & Company Incorporated
500 North Broadway, Suite 1500
St. Louis, MO 63102
(b) There are no underwriters of the securities proposed to be offered in
the Exchange Offer.
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CAPITAL SECURITIES
7. Capitalization.
(a) The following information is provided as to each authorized class of
securities of the Company as of February 18, 1999:
[Download Table]
Title of Class Shares Authorized Shares Outstanding
Common Stock, $0.01 par valuE 50,000,000 24,766,465
Preferred Stock, $0.01 par value 10,000,000 1,200,000(1)
Series A Junior Participating 2,500,000 0
Preferred Stock, $0.01 par value
Series B 10.5% Cumulative Convertible 1,200,000 1,200,000
Preferred Stock, $0.01 par value
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(1) Represents the 1,200,000 shares of the Company's Series B Preferred Stock
outstanding.
The Company also has issued outstanding options to purchase up to 998,875
shares of Common Stock with exercise prices ranging from $7.50 to approximately
$18.17 per share.
(b) Each share of Common Stock is entitled to one vote on all matters
submitted to a vote of stockholders, subject to restrictions in the Charter on
transfer of stock. The Board of Directors may issue shares of Preferred Stock
from time to time with such voting rights as they deem fit, subject to
restrictions in the Charter on transfer of stock. Each share of Series A Junior
Participating Preferred Stock is entitled to 100 votes on all matters submitted
to a vote of stockholders. The Series B Preferred Stock is non-voting, except
as to matters which directly, adversely affect the rights, preferences and
privileges of the Series B Preferred stockholders, including the amendment of
the Articles Supplementary of the Series B Preferred Stock. Options to purchase
Common Stock do not give the holder voting rights.
INDENTURE SECURITIES
8. Analysis of Indenture Provisions.
The following is an analysis of the indenture provisions required under
Section 305(a)(2) of the Trust Indenture Act of 1939, as amended.
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For purposes of this Section 8, the "Indenture" refers to the Indenture, as
supplemented and amended by the First Supplemental Indenture thereto, to be
entered into by and between Impac Mortgage Holdings, Inc. and IBJ Whitehall Bank
& Trust Company (the "Trustee"), pursuant to which the Debentures will be
issued. Other capitalized terms are defined in the Indenture or in the Offering
Circular. An unlimited amount of securities ("Securities") may be issued under
the Indenture in one or more series of which the Debentures will be one series.
A. EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Securities of any series: (a) default in the payment
of any interest upon any Security of that series when it becomes due and
payable, and continuance of such default for a period of 30 days; (b) default in
the payment of the principal of or any premium on any Security of that series at
its Maturity; (c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; (d) default in the
performance, or breach, of any covenant or warranty of the Company in the
Indenture (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this paragraph specifically dealt with or which has
expressly been included in the Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" pursuant to
the terms of the Indenture; (e) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; (f) the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or (g) any
other Event of Default provided with respect to Securities of that series. There
are no additional Events of Default provided for the Debentures.
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If a default occurs hereunder and is actually known to the Trustee with
respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default within ninety (90) days after
its occurrence as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
subclause (d) of the immediately preceding paragraph with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this paragraph, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Except in the case of a default in the payment of a principal of, premium, if
any, or interest on any Security, the Trustee may withhold notice, if, and so
long as, a committee of Responsible Officers in good faith determines that
withholding the notice is in the best interest of the Holders.
B. AUTHENTICATION AND DELIVERY
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of the
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted under the Indenture, in
authenticating such Securities, and accepting the additional responsibilities
under the Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to the provisions of the Indenture) shall be
fully protected in relying upon, an Opinion of Counsel stating: (1) if the form
of such Securities has been established by or pursuant to Board Resolution as
permitted under the Indenture, that such form has been established in conformity
with the provisions of the Indenture; (2) if the terms of such Securities have
been established by or pursuant to Board Resolution as permitted under the
Indenture, that such terms have been established in conformity with the
provisions of the Indenture; and (3) that such Securities, when authenticated
and delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or effecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to the Indenture will affect
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the Trustee's own rights, duties or immunities under the Securities and the
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of the Indenture and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to the Indenture or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued. Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in the
Indenture executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under the Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered under the Indenture but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
pursuant to the Indenture, for all purposes of the Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of the Indenture.
C. RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the Securities will not be secured by any
liens or security interests on any assets of the Company. Therefore, the
Indenture does not contain any provisions with respect to the release or the
release and substitution of any property subject to such a lien.
D. SATISFACTION AND DISCHARGE
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The Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities expressly provided for in the Indenture), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of the Indenture, when (1) either (A) all Securities
theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in the Indenture and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
the Indenture) have been delivered to the Trustee for cancellation; or (B) all
such Securities not theretofore delivered to the Trustee for cancellation (i)
have become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose money in
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; (2) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (3) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of the Indenture have been complied with.
E. EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
9. Other Obligors.
No person other than the Company is an obligor with respect to the
Debentures.
Contents of application for qualification. This application for
qualification comprises:
(a) Pages numbered 1 to 10, consecutively.
(b) The statement of eligibility and qualification of each trustee under
the indenture to be qualified.
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee.
Exhibit 99.1: Form T-1 Statement of Eligibility of IBJ Whitehall Bank &
Trust Company under the Trust Indenture Act of 1939.
Exhibit 99.T3A-1: Charter of the Company (incorporated by reference to the
Exhibit
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3.1 to the Company's Registration Statement on Form S-11,
as amended (File No. 33-96670), filed with the SEC on
September 7, 1995).
Exhibit 99.T3A-2: Articles of Amendment of the Company (incorporated by
reference to Exhibit No. 3.1(a) of the Company's Current
Report on Form 8-K, as amended, dated January 28, 1998).
Exhibit 99.T3A-3: Articles Supplementary of Series A Junior Participating
Preferred Stock of the Company.
Exhibit 99.T3A-4: Articles Supplementary of Series B 10.5% Cumulative
Convertible Preferred Stock of the Company (incorporated by
reference to Exhibit No. 3.1b of the Company's Current
Report on Form 8-K, as filed December 23, 1998).
Exhibit 99.T3B-1: Bylaws of the Company, as amended and restated
(incorporated by reference to Exhibit No. 3.2 of the
Company's Quarterly Report on Form 10-Q for the quarter
ending March 31, 1998).
Exhibit 99.T3C-1: Form of Indenture to be qualified.
Exhibit 99.T3C-2: Form of First Supplemental Indenture.
Exhibit 99.T3D: Inapplicable.
Exhibit 99.T3E-1: Offering Circular, dated February 24, 1999 (incorporated by
reference to the Company's Schedule 13E-4 filed on February
24, 1999).
Exhibit 99.T3E-2: Form of Letter of Transmittal, dated February 24, 1999 and
accompanying documents (incorporated by reference to the
Company's Schedule 13E-4 filed on February 24, 1999).
Exhibit 99.T3E-3: Form of Notice of Guaranteed Delivery, dated February 24,
1999 (incorporated by reference to the Company's 13E-4
filed on February 24, 1999).
Exhibit 99.T3F: Cross Reference Sheet (see the first three pages of
Exhibit 99.T3C-1).
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Impac Mortgage Holdings, Inc., a corporation organized and existing
under the laws of the State of Maryland, has duly caused this application to be
signed on its behalf by the undersigned, thereunto duly authorized, and its seal
to be hereunto affixed and attested, all in the city of Santa Ana Heights, and
State of California, on the 24th day of February, 1999.
[SEAL] IMPAC MORTGAGE HOLDINGS, INC.
/s/ Joseph R. Tomkinson
_______________________________________
By: Joseph R. Tomkinson
Title: Chairman of the Board and Chief
Executive Officer
Attest: /s/ Ronald Morrison /s/ Richard J. Johnson
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Name: Ronald Morrison Name: Richard J. Johnson
Title: Secretary Title: Executive Vice President and Chief
Financial Officer
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Dates Referenced Herein and Documents Incorporated by Reference
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