EXHIBIT 4.7
SIXTH SUPPLEMENTAL INDENTURE
Dated as of October 4, 2001
among
XXXXXXX HOMES, INC.
(formerly known as Xxxxxxx Holdings, Inc.),
THE GUARANTORS PARTY HERETO
and
BNY WESTERN TRUST COMPANY
AS TRUSTEE
Supplementing the Indenture
Dated as of May 6, 1998
SIXTH SUPPLEMENTAL INDENTURE
This SIXTH SUPPLEMENTAL INDENTURE, dated as of October 4, 2001 (this
"Sixth Supplemental Indenture"), by and among Xxxxxxx Homes, Inc., a Delaware
corporation (formerly known as Xxxxxxx Holdings, Inc.) ("Xxxxxxx Homes"), the
Guarantors signatory hereto BNY Western Trust Company, as successor in interest
to U.S. Trust Company, National Association, as trustee (the "Trustee").
WHEREAS, Xxxxxxx Residential, Inc., a Delaware corporation ("Xxxxxxx
Residential") (formerly known as Xxxxxxx Homes, Inc.) and the Guarantors
signatory thereto executed and delivered the Indenture dated as of May 6, 1998,
as supplemented by the First Supplemental Indenture, dated as of February 26,
1999, the Second Supplemental Indenture, dated as of July 15, 1999, the Third
Supplemental Indenture, dated as of July 27, 2000, the Fourth Supplemental
Indenture, dated as of October 20, 2000 and the Fifth Supplemental Indenture,
dated as of June 21, 2001 (as supplemented, the "Indenture"), to the Trustee to
provide for the issuance of Xxxxxxx Residential's 9% Senior Notes Due 2008 (the
"Securities").
WHEREAS, pursuant to an Agreement and Plan of Reorganization, dated as
of September 12, 2000 (the "Plan of Reorganization"), as amended, by and among
Xxxxxxx Residential, Apollo Real Estate Investment Fund, L.P., a Delaware
limited partnership ("Apollo"), Blackacre WPH, LLC, a Delaware limited liability
company ("Blackacre"), Highridge Pacific Housing Investors, L.P., a California
limited partnership ("Highridge"), AP WP Partners, L.P., a Delaware limited
partnership ("APWP"), AP Western GP Corporation, a Delaware corporation ("AP
Western"), API LHI, Inc., a California corporation ("API"), and Lamco Housing,
Inc., a California corporation ("LAMCO," and collectively with Apollo,
Blackacre, Highridge, APWP, AP Western and API, the "WP Partners"), (1) Xxxxxxx
Residential and the WP Partners formed Xxxxxxx Homes and (2) a wholly-owned
subsidiary of Xxxxxxx Homes merged into Xxxxxxx Residential, with Xxxxxxx
Residential as the surviving corporation, as a result of which Xxxxxxx
Residential became a wholly-owned subsidiary of Xxxxxxx Homes.
WHEREAS, on April 2, 2001, pursuant to the Plan of Reorganization,
Xxxxxxx Residential changed its name from "Xxxxxxx Homes, Inc." to "Xxxxxxx
Residential, Inc.", and Xxxxxxx Homes changed its name from "Xxxxxxx Holdings,
Inc." to "Xxxxxxx Homes, Inc."
WHEREAS, in connection with the Plan of Reorganization, Xxxxxxx Homes
acquired various subsidiaries which have been designated as Restricted
Subsidiaries.
WHEREAS, on June 21, 2001, pursuant to Section 2.6(b) of the Plan of
Reorganization, Xxxxxxx Residential was merged into Xxxxxxx Homes, with Xxxxxxx
Homes as the surviving corporation of such merger.
WHEREAS, on June 21, 2001, Xxxxxxx Homes assumed all of the Obligations
of Xxxxxxx Residential under the Indenture and the Securities.
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WHEREAS, Xxxxxxx Homes desires that pursuant to Section 4.18 and
Article 10 of the Indenture, those Restricted Subsidiaries listed on Exhibit A
hereto (the "Additional Guarantors") shall become Guarantors under the
Indenture.
WHEREAS, Xxxxxxx Homes, the Guarantors and the Trustee have agreed to
execute this Sixth Supplemental Indenture and have done all things necessary
under their respective organizational documents and the Indenture to enter into
this Sixth Supplemental Indenture.
WHEREAS, Section 9.01 of the Indenture provides that the Company and
the Guarantors, with the consent of the Trustee, may amend, modify or supplement
the Indenture without notice to or the consent of any holder of the Securities
for the purpose of reflecting additional guarantors in order to comply with
Section 4.18 of the Indenture, and to make any other change that does not
adversely affect the rights of any holder of the Securities.
NOW THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, each party hereto agrees as follows for the benefit
of the holders of the Securities:
ARTICLE 1.
DEFINITIONS
Section 1.01. Definitions of Terms. Unless the context otherwise
requires:
(a) capitalized terms used herein that are not otherwise defined herein
shall have the meaning assigned to such terms in the Indenture;
(b) references to Sections or Articles mean references to such Section
or Article in the Indenture, unless stated otherwise; and
(c) rules of construction applicable pursuant to the Indenture are also
applicable herein.
ARTICLE 2.
ADDITIONAL GUARANTORS
Each of the Additional Guarantors listed on Exhibit A hereto hereby
agrees to become a Guarantor under the Indenture, and upon its execution and
delivery of this Sixth Supplemental Indenture, each of such Additional
Guarantors guarantees payment of the Securities pursuant to the terms of Article
10 of the Indenture and Exhibit B thereto.
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ARTICLE 3.
MISCELLANEOUS
Section 3.01. Authorization. The execution, delivery and performance by
Xxxxxxx Homes and the Guarantors of this Sixth Supplemental Indenture have been
duly authorized by all necessary action of Xxxxxxx Homes and each such
Guarantor.
Section 3.02. Ratification of Indenture. The Indenture, as supplemented
by this Sixth Supplemental Indenture, is in all respects ratified and confirmed,
and this Sixth Supplemental Indenture shall be deemed part of the Indenture in
the manner and to the extent herein and therein provided and every holder of
Securities heretofore or hereafter authenticated and delivered under the
Indenture shall benefit and be bound hereby.
Section 3.03. Governing Law. This Sixth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflict of laws provisions thereof.
Section 3.04. Severability. In case any one or more of the provisions
in this Sixth Supplemental Indenture shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
Section 3.05. Counterparts. This Sixth Supplemental Indenture may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
Section 3.06. Effectiveness. This Sixth Supplemental Indenture shall be
effective and binding upon execution hereof by Xxxxxxx Homes, the Guarantors and
the Trustee.
Section 3.07. Trustee Not Responsible for Recitals. The recitals herein
contained are made by Xxxxxxx Homes and the Guarantors and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof and shall
incur no liability for any incorrectness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Sixth Supplemental
Indenture.
Section 3.08. Performance of Trustee. The Trustee, for itself and its
successors, accepts the Trust of the Indenture as amended by this Sixth
Supplemental Indenture and agrees to perform this Sixth Supplemental Indenture
and the Indenture, but only upon the terms and conditions set forth herein and
therein, including the terms and provisions in the Indenture defining and
limiting the liability and responsibility of the Trustee.
Section 3.09. Compensation. Xxxxxxx Homes shall promptly reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it in
administering and executing this Sixth Supplemental Indenture. Such expenses
shall include the reasonable compensation and out-of-pocket expenses of the
Trustee's agents and counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplemental Indenture to be duly executed, all as of the date first written
above.
XXXXXXX HOMES, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Senior Vice President and Chief
Financial Officer
XXXXXXX HOMES OF CALIFORNIA, INC.
XXXXXXX HOMES OF OREGON, INC.
XXXXXXX HOMES OF WASHINGTON, INC.
MELODY HOMES, INC.
MELODY MORTGAGE CO.
XXXXXXX REALTY/MAUI, INC.
XXXXXXX REALTY/OAHU, INC.
LOKELANI CONSTRUCTION CORPORATION
SHLR OF WASHINGTON, INC.
SHLR OF COLORADO, INC.
SSHI LLC
SHLR OF NEVADA, INC.
SRHI LLC
XXXXXXX HOMES OF ARIZONA LLC
SHLR OF CALIFORNIA, INC.
XXXXXXX MORTGAGE, INC.
SHA CONSTRUCTION LLC,
as Guarantors
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Senior Vice President, Chief Financial
Officer and Secretary
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EACH OF THE GUARANTORS
LISTED ON EXHIBIT A HERETO
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
Authorized Person
BNY WESTERN TRUST COMPANY,
as successor in interest to
U.S. TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
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EXHIBIT A
ADDITIONAL GUARANTORS
LAMCO Housing, Inc.
AP LHI, Inc.
APLAM, LLC
AP Western GP Corporation
AP WP Partners L.P.
AP WP Operating Corporation
HPH Homebuilders 2000 XX
Xxxxxx GP LLC
Xxxxxx XX LLC
Western Pacific Housing, Inc.
Western Pacific Housing Development Limited Partnership
Western Pacific Housing Development II Limited Partnership
WPH-Xxxxxx, LLC
Xxxxx, LLC (formerly WPH-Edgewood 56, LLC)
Western Pacific Housing-Agoura I, LLC
Western Pacific Housing-American Canyon, LLC
Western Pacific Housing-Antigua, LLC
Western Pacific Housing-Bay Vista, LLC
Western Pacific Housing-Broadway, LLC
Western Pacific Housing-Xxxxxxx, LLC
Western Pacific Housing-Calvine, LLC
Western Pacific Housing-Xxxxxxxx, LLC
Western Pacific Housing-Cloverdale I, LLC
Western Pacific Housing-Cloverdale II, LLC
Western Pacific Housing-Communications Hill, LLC
Western Pacific Housing-Xxxxxxxx Commons I, LLC
Western Pacific Housing-Coto I, LLC
Western Pacific Housing-Creekside, LLC
Western Pacific Housing-Cypress Xxxxx, LLC
Western Pacific Housing-Deer Creek, LLC
Western Pacific Housing-East Park, LLC
Western Pacific Housing-Edgewood 45, LLC
Western Pacific Housing-Escondido, LLC
Western Pacific Housing-Fieldstone, LLC
Western Pacific Housing-Hercules MRB, LLC
Western Pacific Housing-Hercules Village, LLC
Western Pacific Housing-Land Park North, LLC
Western Pacific Housing-Xxxxxx Xxxxx XX, LLC
Western Pacific Housing-Lomas Verdes, LLC
Western Pacific Housing-Xxxxxxxx, LLC
Western Pacific Housing-Menifee, LLC
Western Pacific Housing-Xxxxxxxxxx, LLC
Western Pacific Housing-Murrieta, LLC
Western Pacific Housing-Natomas Village 13, LLC
Western Pacific Housing-Norco Estates, LLC
Western Pacific Housing-Paradise Creek, LLC
Western Pacific Housing-Providence I, LLC
Western Pacific Housing-Robinhood Ridge, LLC
Western Pacific Housing-Xxxxxxx Heights, LLC
Western Pacific Housing-Saddlebrook, LLC
Western Pacific Housing-San Elijo, LLC
Western Pacific Housing-Simi I, LLC
Western Pacific Housing-Sonoma, LLC
Western Pacific Housing-Spanish Hills, LLC
Western Pacific Housing-Stone Lake, LLC
Western Pacific Housing-Sun Valley, LLC
Western Pacific Housing-Terra Bay Xxxxx, LLC
Western Pacific Housing-Xxxxxx Xxxxx, LLC
Western Pacific Housing-Towngate, LLC
Western Pacific Housing-Valpico, LLC
Western Pacific Housing-Vineyard Terrace, LLC
Western Pacific Housing-Westminster, LLC
Western Pacific Housing-Windsor Pointe, LLC
Western Pacific Housing-Black Mountain, LLC
Western Pacific Housing-Xxxxxxx Xxxxxxx, LLC
Western Pacific Housing-Carlsberg Ranch, LLC
Western Pacific Housing-Carpenteria, LLC
Western Pacific Housing-Dos Vientos 78, LLC
Western Pacific Housing-Fillmore, LLC
Western Pacific Housing-Xxxxx Canyon Partners, LLC
Western Pacific Housing-San Elijo Area R, LLC
Western Pacific Housing-Xxxxx Ranch, LLC
Western Pacific Housing-Sorrento, LLC
Western Pacific Housing-Torrey Village Center
Western Pacific Housing-Torrey, LLC
Western Pacific Housing-Torrey Santa Fe, LLC
WPH-Camino Xxxx, LLC
WPH-HPH LLC
WPH-SAL2, L.P. (formerly WPH-Sunset Hills III, L.P.)
Western Pacific Funding, Inc.
Western Pacific Housing - XxXxxxxxx Canyon, LLC
Western Pacific Housing-Torrey Commercial, LLC
Western Pacific Housing-Torrey Multi-Family, LLC
WPH-SAL1, L.P.
WPH Management Co.
Allegra, LLC
Coto Venture, Ltd. (see WPH-Coto Venture, L.P.)
HPH Homebuilders LP 1995
HPH Homebuilders LP 1996
Livermore Homebuilders XX
Xxxxxx-Avalon LP
Western Pacific Housing-Altamar, LLC
Western Pacific Housing-Altura, L.P.
Western Pacific Housing-Arbor Hills, LLC
Western Pacific Housing-Aviara, L.P.
Western Pacific Housing-Bella Nevona, LLC
Western Pacific Housing Co.
Western Pacific Housing-Canyon Park, LLC
Western Pacific Housing-Carlsbad I, LLC
Western Pacific Housing-Carmel, LLC
Western Pacific Housing-Xxxxxx Station, LLC
Western Pacific Housing-Corona, L.P.
Western Pacific Housing-Coto Venture, L.P.
Western Pacific Housing-Xxxxxx City, L.P.
Western Pacific Housing-Xxxxxx Grove, LLC
Western Pacific Housing-Del Sol
Western Pacific Housing-El Camino, LLC
Western Pacific Housing-Financing Partners
Western Pacific Housing-Xxxx View, LLC
Western Pacific Housing-Hamptons, L.P.
Western Pacific Housing-Lost Hills Park, LLC
Western Pacific Housing-Mayfair, LLC
Western Pacific Housing-Mountaingate, L.P.
Western Pacific Housing-Oso, L.P.
Western Pacific Housing-Pacific Park, L.P.
Western Pacific Housing-Pacific Park II, LLC
Western Pacific Housing-Penasquitos, LLC
Western Pacific Housing-Poinsettia, L.P.
Western Pacific Housing-Rancho Del Tio, LLC
Western Pacific Housing-Riverside I, LLC
Western Pacific Housing-San Simeon, L.P.
Western Pacific Housing-San Xxxxxx XX, L.P.
Western Pacific Housing-Santa Fe, LLC
Western Pacific Housing-Saugus, L.P.
Western Pacific Housing-Scripps, L.P.
Western Pacific Housing-Scripps II, LLC
Western Pacific Housing-Seacove, L.P.
Western Pacific Housing-Shadow Creek, LLC
Western Pacific Housing-Skyridge, L.P.
Western Pacific Housing-Xxxxxxx I, LLC
Western Pacific Housing-Sunset Hills I, L.P.
Western Pacific Housing-Sunset Hills II, L.P.
Western Pacific Housing-Xxxxxx Place, LLC
Western Pacific Housing-Tiburon II, L.P.
Western Pacific Housing-Torrey Hills, LLC
Western Pacific Housing-Westlake, L.P.
Western Pacific Housing-Westlake II, L.P.
Western Pacific Housing-Windflower, L.P.
Western Pacific Housing-Winterhaven, LLC
Western Pacific Housing-Xxxxx, X.X.
Western Pacific Housing-Boardwalk, LLC
Western Pacific Housing-Brea Olinda, LLC
Western Pacific Housing-Xxxxxxxxx, LLC
Western Pacific Housing-Lemon Grove, LLC
Western Pacific Housing-Studio 528, LLC
Western Pacific Housing-Terra Bay Duets, LLC
Western Pacific Housing-Xxxxxx Xxxxxxx, LLC
Western Pacific Housing-Glacier, LLC
Western Pacific Housing-Camarillo, LLC
Western Pacific Housing-Playa Vista, LLC
Western Pacific Housing-Torrance, LLC
