SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.6
SECOND SUPPLEMENTAL INDENTURE, (this “Second Supplemental Indenture”) dated as of August 12, 2014, by and among Xxxxxxx Xxxx Homes, Inc., a California corporation (the “Company”), the parties that are signatories hereto as Guarantors (each, a “Guaranteeing Party”) and U.S. Bank National Association, as Trustee, under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, WLH PNW Finance Corp. (the “Escrow Issuer”) has heretofore executed and delivered an indenture dated as of August 11, 2014 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance on such date of an aggregate principal amount of $300,000,000 of 7.00% Senior Notes due 2022 (the “Securities”) of the Escrow Issuer;
WHEREAS, Section 5.02 of the Indenture requires each Guaranteeing Party that is a signatory hereto to execute an assumption supplemental indenture promptly following the Escrow Release Date (and in no event later than such time as such entity will become a guarantor under the Revolving Credit Facility);
WHEREAS, the Company, Xxxxxxx Xxxx Homes, a Delaware corporation (“Parent”), and other subsidiaries of Parent (with Parent, the “Original Guarantors”) and the Trustee previously executed a supplemental indenture to the Indenture, whereby the Company agreed to become a party to the Indenture as the “Company” and each of the Original Guarantors agreed to become a party to the Indenture and to irrevocably Guarantee the Guaranteed Obligations pursuant to Article 10 under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, any Guarantor and the Trustee are authorized to execute and deliver this Second Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guaranteeing Parties and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Second Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to be Bound. Each of the Guaranteeing Parties hereby becomes a party to the Indenture as a “Guarantor” and as such will have all of the rights and be subject to all of the obligations and agreements of a “Guarantor” under the Indenture.
SECTION 2.2. Guarantee. Each of the Guaranteeing Parties agrees, on a joint and several basis with each other Guaranteeing Party, to fully, unconditionally and irrevocably Guarantee to each Holder of the Securities and the Trustee the Guaranteed Obligations pursuant to Article 10 of the Indenture as and to the extent provided for therein.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications to the Guaranteeing Parties shall be given as provided in the Indenture.
SECTION 3.2. Governing Law. This Second Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.3. Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.4. Benefits Acknowledged. Each Guaranteeing Party’s Security Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Second Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Security Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby and entitled to the benefits hereof.
SECTION 3.6. The Trustee. The Trustee makes no representation or warranty as to the validity or sufficiency of this Second Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.7. Counterparts. The parties hereto may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or other electronic transmission shall be deemed to be their original signatures for all purposes.
SECTION 3.8. Execution and Delivery. Each Guaranteeing Party agrees that its Security Guarantee shall remain in full force and effect notwithstanding any absence on each Security of a notation of any such Security Guarantee.
SECTION 3.9. Headings. The headings of the Articles and the Sections in this Second Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| XXXXXXX XXXX HOMES, INC. | ||||||
| By: | ||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | President and Chief Operating Officer | |||||
| By: | ||||||
| /s/ Xxxxx X. Xxxxxx | ||||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Vice President, Chief Financial Officer and Corporate Secretary | |||||
[Signature Page to Second Supplemental Indenture]
| 460 CENTRAL, L.L.C. BASELINE XXXXX SFD I, L.L.C. BASELINE XXXXX SFD II, L.L.C. BASELINE XXXXX WEST, L.L.C. XXXXXXX CREEK FALLS, L.L.C. BROWNSTONE AT ISSAQUAH HIGHLANDS, L.L.C. XXXXXX HEIGHTS, L.L.C. BULL MOUNTAIN RIDGE, L.L.C. CALAIS AT VILLEBOIS, L.L.C. CEDAR FALLS WAY LLC CASCARA AT XXXXXXX RIDGE, L.L.C. XXXXXXXXX PASS TOWNHOMES, L.L.C. EDGEWATER TUALATIN, L.L.C. GRANDE POINTE AT VILLEBOIS, L.L.C. HIGH POINT III, L.L.C. HIGHCROFT AT SAMMAMISH, L.L.C. ISSAQUAH HIGHLANDS INVESTMENT FUND, L.L.C. LES BOIS AT VILLEBOIS, L.L.C. MILL CREEK TERRACE, L.L.C. XXXXXX & XXXX SFD, L.L.C. ORENCO XXXXX SFD, L.L.C. XXXXXXX CANYON HOMES, L.L.C. POLYGON AT BRENCHLEY ESTATES, L.L.C. POLYGON AT SUNSET RIDGE, L.L.C. POLYGON AT VILLEBOIS II, L.L.C. POLYGON AT VILLEBOIS III, L.L.C. POLYGON AT VILLEBOIS IV, L.L.C. POLYGON AT VILLEBOIS V, L.L.C. RIDGEVIEW TOWNHOMES, L.L.C. RIVERFRONT MF, L.L.C. RIVERFRONT SF, L.L.C. SILVERLAKE CENTER, L.L.C. SPANAWAY 230, L.L.C. SPARROW CREEK, L.L.C. THE RESERVE AT MAPLE VALLEY, L.L.C. THE RESERVE AT NORTH CREEK, L.L.C. TWIN CREEKS AT XXXXXX MOUNTAIN, L.L.C. W.R. TOWNHOMES F, L.L.C. VIEWRIDGE AT ISSAQUAH HIGHLANDS, L.L.C. CASCADIAN KING COMPANY, L.L.C. PNW CASCADIAN COMPANY, L.L.C. POLYGON NORTHWEST COMPANY, L.L.C. POLYGON PAYMASTER, L.L.C. CASCADIAN SOUTH L.L.C. | ||||||||
| By: | POLYGON WLH LLC, Its Sole Member | |||||||
| By: | ||||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||||
| Name: | Xxxxxxx X. Xxxxx | |||||||
| Title: | President & Chief Operating Officer | |||||||
[Signature Page to Second Supplemental Indenture]
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||||
| By: | ||||||
| /s/ Xxxxxx X. Xxxxxxxxxxx | ||||||
| Name: | Xxxxxx X. Xxxxxxxxxxx | |||||
| Title: | Vice President | |||||
[Signature Page to Second Supplemental Indenture]
Schedule I
New Guarantors
| 1. | 460 Central, L.L.C., a Washington limited liability company |
| 2. | Baseline Xxxxx SFD I, L.L.C., a Washington limited liability company |
| 3. | Baseline Xxxxx SFD II, L.L.C., a Washington limited liability company |
| 4. | Baseline Xxxxx West, L.L.C., a Washington limited liability company |
| 5. | Xxxxxxx Creek Falls, L.L.C., a Washington limited liability company |
| 6. | Brownstone at Issaquah Highlands, L.L.C., a Washington limited liability company |
| 7. | Xxxxxx Heights, L.L.C., a Washington limited liability company |
| 8. | Bull Mountain Ridge, L.L.C., a Washington limited liability company |
| 9. | Cedar Falls Way LLC, a Washington limited liability company |
| 10. | Calais at Villebois, L.L.C., a Washington limited liability company |
| 11. | Cascara at Xxxxxxx Ridge, L.L.C., a Washington limited liability company |
| 12. | Xxxxxxxxx Pass Townhomes, L.L.C., a Washington limited liability company |
| 13. | Edgewater Tualatin, L.L.C., a Washington limited liability company |
| 14. | Grande Pointe at Villebois, L.L.C., a Washington limited liability company |
| 15. | High Point III, L.L.C., a Washington limited liability company |
| 16. | Highcroft at Sammamish, L.L.C., a Washington limited liability company |
| 17. | Issaquah Highlands Investment Fund, L.L.C., a Washington limited liability company |
| 18. | Les Bois at Villebois, L.L.C., a Washington limited liability company |
| 19. | Mill Creek Terrace, L.L.C., a Washington limited liability company |
| 20. | Xxxxxx & Xxxx SFD, L.L.C., a Washington limited liability company |
| 21. | Orenco Xxxxx SFD, L.L.C., a Washington limited liability company |
| 22. | Xxxxxxx Canyon Homes, L.L.C., a Washington limited liability company |
| 23. | Polygon at Brenchley Estates, L.L.C., a Washington limited liability company |
| 24. | Polygon at Sunset Ridge L.L.C., a Washington limited liability company |
| 25. | Polygon at Villebois II, L.L.C., a Washington limited liability company |
| 26. | Polygon at Villebois III, L.L.C., a Washington limited liability company |
| 27. | Polygon at Villebois IV, L.L.C., a Washington limited liability company |
| 28. | Polygon at Villebois V, L.L.C., a Washington limited liability company |
| 29. | Ridgeview Townhomes, L.L.C., a Washington limited liability company |
| 30. | Riverfront MF, L.L.C., a Washington limited liability company |
| 31. | Riverfront SF, L.L.C., a Washington limited liability company |
| 32. | Silverlake Center, L.L.C., a Washington limited liability company |
| 33. | Spanaway 230, L.L.C., a Washington limited liability company |
| 34. | Sparrow Creek, L.L.C., a Washington limited liability company |
| 35. | The Reserve at Maple Valley, L.L.C., a Washington limited liability company |
| 36. | The Reserve at North Creek, L.L.C., a Washington limited liability company |
| 37. | Twin Creeks at Xxxxxx Mountain, L.L.C., a Washington limited liability company |
| 38. | Viewridge at Issaquah Highlands, L.L.C., a Washington limited liability company |
| 39. | W.R. Townhomes F, L.L.C., a Washington limited liability company |
| 40. | Cascadian King Company, L.L.C., a Washington limited liability company |
| 41. | PNW Cascadian Company, L.L.C., a Washington limited liability company |
| 42. | Polygon Northwest Company, L.L.C., a Washington limited liability company |
| 43. | Polygon Paymaster, L.L.C., a Washington limited liability company |
| 44. | Cascadian South L.L.C., an Oregon limited liability company |
