EXHIBIT 1.11
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 21, 2001
among
XXXXXXX HOMES, INC.
(formerly known as Xxxxxxx Holdings, Inc.),
XXXXXXX RESIDENTIAL, INC.
(formerly known as Xxxxxxx Homes, Inc.),
THE GUARANTORS PARTY HERETO
and
U.S. TRUST COMPANY, NATIONAL ASSOCIATION
AS TRUSTEE
Supplementing the Indenture
Dated as of May 6, 1998
FIFTH SUPPLEMENTAL INDENTURE, dated as of June 21, 2001 (this
"FIFTH SUPPLEMENTAL INDENTURE"), by and among Xxxxxxx Homes, Inc., a Delaware
corporation (formerly known as Xxxxxxx Holdings, Inc.) ("XXXXXXX HOMES"),
Xxxxxxx Residential, Inc., a Delaware corporation (formerly known as Xxxxxxx
Homes, Inc.) ("XXXXXXX RESIDENTIAL"), the Guarantors signatory hereto and U.S.
Trust Company, National Association, as trustee (the "TRUSTEE").
WHEREAS, Xxxxxxx Residential 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 and the Fourth Supplemental
Indenture, dated as of October 20, 2000 (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, pursuant to Section 2.6(b) of the Plan of
Reorganization, on the date hereof, Xxxxxxx Residential shall be merged into
Xxxxxxx Homes, with Xxxxxxx Homes as the surviving corporation of such merger
(the effective time of such merger on the date hereof is referred to herein as
the "MERGER EFFECTIVE TIME").
WHEREAS, Section 5.01 of the Indenture provides that the
Company will not merge into another person unless such person is a corporation
organized under the laws of the United States of America or any state thereof or
the District of Columbia and expressly assumes all of the Obligations (as
defined in the Indenture) of the Company under the Indenture and the Securities,
and certain other conditions specified in Section 5.01 are satisfied.
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 evidencing the succession of another
corporation to the Company and the assumption by it of the Obligations (as
defined in the Indenture) of the Company under the Indenture and the Securities
in order to comply with Section 5.01 of the Indenture, and to make any other
change that does not adversely
affect the rights of any holder of the Securities.
WHEREAS, Xxxxxxx Residential, Xxxxxxx Homes, the Guarantors
and the Trustee have agreed to execute this Fifth Supplemental Indenture and
have done all things necessary under their respective charters and by-laws and
the Indenture to enter into this Fifth Supplemental Indenture.
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. DEFINITION 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.
ASSUMPTION BY SUCCESSOR CORPORATION
Pursuant to Section 5.01 of the Indenture, Xxxxxxx Homes
hereby assumes all of the Obligations (as defined in the Indenture) of Xxxxxxx
Residential under the Indenture and the Securities.
Article 3.
MISCELLANEOUS
Section 3.01. AUTHORIZATION.
The execution, delivery and performance by Xxxxxxx
Residential, Xxxxxxx Homes and the Guarantors of this Fifth Supplemental
Indenture have been duly authorized by all necessary action of Xxxxxxx
Residential and Xxxxxxx Homes and each such Guarantor.
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Section 3.02. RATIFICATION OF INDENTURE.
The Indenture, as supplemented by this Fifth Supplemental
Indenture, is in all respects ratified and confirmed, and this Fifth
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 FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 3.04. SEVERABILITY.
In case any one or more of the provisions in this Fifth
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 Fifth 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 Fifth Supplemental Indenture shall be effective and
binding at and as of the Merger Effective Time.
Section 3.07. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by Xxxxxxx Residential,
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 Fifth 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 Fifth Supplemental Indenture and agrees to
perform this Fifth 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.
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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 Fifth 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 Fifth
Supplemental Indenture to be duly executed, all as of the date first written
above.
XXXXXXX HOMES, INC.
(formerly known as Xxxxxxx Holdings, Inc.)
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXXX RESIDENTIAL, INC.
(formerly known as Xxxxxxx Homes, Inc.)
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive 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/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
U.S. TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
