EXHIBIT 4.7
WCI COMMUNITIES, INC.
$350,000,000
SERIES A
10 5/8% SENIOR SUBORDINATED NOTES DUE 2011
--------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of April 23, 2002
to
INDENTURE
Dated as of February 20, 2001
As Amended by the
Supplemental Indenture
dated as of June 8, 2001
--------------------------------
THE BANK OF NEW YORK,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as
of April 23, 2002 by and among WCI Communities, Inc., a Delaware corporation
(the "Company"), WCI Architecture & Land Planning, Inc., a Florida corporation
("WCI Architecture"), Community Specialized Services, Inc., a Florida
corporation ("Community Specialized Services" and together with WCI
Architecture, the "Guaranteeing Subsidiaries"), Bay Colony-Gateway, Inc., a
Delaware corporation, Communities Finance Company, LLC, a Delaware limited
liability company, Panther Developments, LLC, a Delaware limited liability
company, First Fidelity Title, Inc., a Delaware corporation, Florida Lifestyle
Management Company, a Florida corporation, Xxxxxxxxxx Road, Inc., a Florida
corporation, Sun City Center Golf Properties, Inc., a Delaware corporation, Sun
City Center Realty, Inc., a Florida corporation, WCI Capital Corporation, a
Florida corporation, Watermark Realty, Inc., a Delaware corporation, Bay Colony
Realty Associates, Inc., a Florida corporation, Bay Colony of Naples, Inc., a
Florida corporation, Communities Amenities, Inc., a Florida corporation,
Communities Home Builders, Inc., a Florida corporation, Coral Ridge Communities,
Inc., a Florida corporation, Coral Ridge Properties, Inc., a Florida
corporation, Coral Ridge Realty, Inc., a Florida corporation, Coral Ridge Realty
Sales, Inc., a Florida corporation, Florida Design Communities, Inc., a Florida
corporation, Gateway Communities, Inc., a Florida corporation, Gateway
Communications Services, Inc., a Florida corporation, Gateway Realty Sales,
Inc., a Florida corporation, Heron Bay Golf Course Properties, Inc., a Florida
corporation, Marbella at Pelican Bay, Inc., a Florida corporation, Pelican Bay
Properties, Inc., a Florida corporation, Pelican Landing Communities, Inc., a
Florida corporation, Pelican Landing Golf Resort Ventures, Inc., a Delaware
corporation, Pelican Landing Properties, Inc., a Florida corporation, Tarpon
Cove Realty, Inc., a Florida corporation, Tarpon Cove Yacht & Racquet Club,
Inc., a Florida corporation, WCI Realty, Inc., a Florida corporation, Watermark
Realty Referral, Inc., a Florida corporation, Financial Resources Group, Inc., a
Florida corporation, WI Ultracorp of Florida, Inc., a Delaware corporation, The
Colony at Pelican Landing Golf Club, Inc., a Florida corporation, Florida
National Properties, Inc., a Florida corporation, Heron Bay, Inc., a Florida
corporation, JYC Holdings, Inc., a Florida corporation, Tiburon Golf Ventures,
Inc., a Delaware corporation, WCI Golf Group, Inc., a Florida corporation,
Pelican Xxxxx Properties, Inc., a Florida corporation, Sarasota Tower, Inc., a
Florida corporation, WCI Communities Property Management, Inc., a Florida
corporation, and WCI Homes, Inc., a Florida corporation (collectively the
"Guarantors") and Bank of New York, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company, the Guarantors and the Trustee
previously executed, and the Company and the Guarantors duly delivered to the
Trustee, an Indenture, as amended, (the "Indenture") dated February 20, 2001
providing for the issuance of an aggregate principal amount of up to
$350,000,000 of the Company's 10 5/8% Senior Subordinated Notes due 2011 (the
"Notes");
WHEREAS, the Indenture provides that a subsidiary required to
execute a Guarantee of the Notes shall execute and deliver a supplemental
indenture to the Trustee in connection therewith;
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WHEREAS, the Guaranteeing Subsidiaries are required to execute
a Guarantee of the Notes and desire to execute and deliver this Supplemental
Indenture herewith; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
WHEREAS, the Board of Directors of the Company and the Board
of Directors of each of the Guaranteeing Subsidiaries have authorized the
execution of this Supplemental Indenture and its delivery to the Trustee;
WHEREAS, the Company has delivered an Officers' Certificate
and an Opinion of Counsel to the Trustee pursuant to Sections 7.02 and 13.04 of
the Indenture; and
WHEREAS, all other actions necessary to make this Supplemental
Indenture a legal, valid and binding obligation of the parties hereto in
accordance with its terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each of the Guaranteeing Subsidiaries, the Guarantors, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AMENDMENTS TO INDENTURE.
I. Section 1.01 of the Indenture shall be amended as
follows:
(a) by deleting the definition of "Significant
Subsidiary " and substituting in lieu thereof the following:
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in effect
on the date hereof except
that the standard of significance will be 20% instead of 10%.
II. by deleting Section 13.08, "Governing Law" and
substituting in lieu thereof the following:
Section 13.08. Governing Law.
THIS INDENTURE, THE NOTES, AND THE NOTE GUARANTEES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
3. AGREEMENT TO GUARANTEE. Each of the Guaranteeing
Subsidiaries hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the
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Trustee and its successors and assigns, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture, and each of the Guaranteeing Subsidiaries accepts all
obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) Each of the Guaranteeing Subsidiaries shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of
any declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee.
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(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or fraudulent conveyance
laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under
Article 11 of the Indenture, this new Note Guarantee shall be limited
to the maximum amount permissible such that the obligations of such
Guarantor under this Note Guarantee will not constitute a fraudulent
transfer or conveyance.
4. EXECUTION AND DELIVERY. Each of the Guaranteeing
Subsidiaries agrees that the Note Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.
5. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
(a) Each of the Guaranteeing Subsidiaries may not consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not affiliated with
such Guarantor unless:
(i) subject to Sections 11.04 and 11.05 of the Indenture, the Person
formed by or surviving any such consolidation or merger (if other than
a Guarantor or the Company) unconditionally assumes all the obligations
of such Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, the
Indenture and the Note Guarantee on the terms set forth herein or
therein; and
(ii) immediately after giving effect to such transaction, no Default or
Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 11.05
of Article 11 of the Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the
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Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
6. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all to the capital stock of any Guarantor, in each case
to a Person that is not (either before or after giving effect to such
transaction) a Restricted Subsidiary of the Company, then such Guarantor (in the
event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Note Guarantee; provided that the net proceeds of
such sale or other disposition are applied in accordance with the applicable
provisions of the Indenture, including without limitation Section 4.10 of the
Indenture. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of the
Indenture, including without limitation Section 4.10 of the Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under the
Indenture as provided in Article 11 of the Indenture.
7. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of each of the
Guaranteeing Subsidiaries, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
8. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. COUNTERPARTS The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
WCI COMMUNITIES, INC.
By:
Name:
Title:
ADDITIONAL GUARANTORS:
WCI ARCHITECTURE & LAND PLANNING, INC.
By:
Name:
Title:
COMMUNITY SPECIALIZED SERVICES, INC.
By:
Name:
Title:
GUARANTORS:
BAY COLONY-GATEWAY, INC.
By:
Name:
Title:
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FINANCIAL RESOURCES GROUP, INC.
By:
Name:
Title:
FIRST FIDELITY TITLE, INC.
By:
Name:
Title:
FLORIDA LIFESTYLE MANAGEMENT COMPANY
By:
Name:
Title:
XXXXXXXXXX ROAD, INC.
By:
Name:
Title:
WCI CAPITAL CORPORATION
By:
Name:
Title:
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PANTHER DEVELOPMENTS, LLC
By:
Name:
Title:
SUN CITY CENTER GOLF PROPERTIES, INC.
By:
Name:
Title:
SUN CITY CENTER REALTY, INC.
By:
Name:
Title:
WATERMARK REALTY, INC.
By:
Name:
Title:
WI ULTRACORP OF FLORIDA, INC.
By:
Name:
Title:
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THE COLONY AT PELICAN LANDING GOLF CLUB, INC.
By:
Name:
Title:
COMMUNITIES AMENITIES, INC.
By:
Name:
Title:
COMMUNITIES HOME BUILDERS, INC.
By:
Name:
Title:
GATEWAY COMMUNICATIONS SERVICES, INC.
By:
Name:
Title:
JYC HOLDINGS, INC.
By:
Name:
Title:
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MARBELLA AT PELICAN BAY, INC.
By:
Name:
Title:
PELICAN LANDING GOLF RESORT VENTURES, INC.
By:
Name:
Title:
SARASOTA TOWER, INC.
By:
Name:
Title:
TARPON COVE YACHT & RACQUET CLUB, INC.
By:
Name:
Title:
TIBURON GOLF VENTURES, INC.
By:
Name:
Title:
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WATERMARK REALTY REFERRAL, INC.
By:
Name:
Title:
WCI COMMUNITIES PROPERTY MANAGEMENT, INC.
By:
Name:
Title:
WCI GOLF GROUP, INC.
By:
Name:
Title:
WCI REALTY, INC.
By:
Name:
Title:
BAY COLONY REALTY ASSOCIATES, INC.
By:
Name:
Title:
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BAY COLONY OF NAPLES, INC.
By:
Name:
Title:
CORAL RIDGE COMMUNITIES, INC.
By:
Name:
Title:
CORAL RIDGE PROPERTIES, INC.
By:
Name:
Title:
CORAL RIDGE REALTY, INC.
By:
Name:
Title:
CORAL RIDGE REALTY SALES, INC.
By:
Name:
Title:
13
FLORIDA DESIGN COMMUNITIES, INC.
By:
Name:
Title:
FLORIDA NATIONAL PROPERTIES, INC.
By:
Name:
Title:
GATEWAY COMMUNITIES, INC.
By:
Name:
Title:
GATEWAY REALTY SALES, INC.
By:
Name:
Title:
HERON BAY, INC.
By:
Name:
Title:
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HERON BAY GOLF COURSE PROPERTIES, INC.
By:
Name:
Title:
PELICAN BAY PROPERTIES, INC.
By:
Name:
Title:
PELICAN LANDING COMMUNITIES, INC.
By:
Name:
Title:
PELICAN LANDING PROPERTIES, INC.
By:
Name:
Title:
PELICAN XXXXX PROPERTIES, INC.
By:
Name:
Title:
15
TARPON COVE REALTY, INC.
By:
Name:
Title:
WCI HOMES, INC.
By:
Name:
Title:
COMMUNITIES FINANCE COMPANY, LLC
By:
Name:
Title:
THE BANK OF NEW YORK,
As Trustee
By:
Name:
Title:
