SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.6
SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of March 9, 2021, among TNHC Colorado Inc., a Delaware corporation, EHWP LLC, a Colorado limited liability company, EHPP, LLC, a Colorado limited liability company, EHTCV, LLC, a Colorado limited liability company, Epic Homes at Anthem Highlands LLC, a Colorado limited liability company, The Orchard Group LLC, a Colorado limited liability company (together, the “Guaranteeing Subsidiaries”), each a subsidiary of The New Home Company Inc. (or its permitted successor), a Delaware corporation (the “Company”), the Company, the guarantors party hereto (the “Guarantors”) and U.S. Bank National Association, as trustee under the Indenture referred to below (in such capacity, the “Trustee”).
RECITALS
WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture, dated as of October 28, 2020 (as amended by the First Supplemental Indenture, dated as of February 24, 2021, the “Indenture”), providing for the issuance of the Company’s 7.250% Senior Notes due 2025 (the “Notes”) and the related guarantees of the Notes;
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Security Guarantee”);
WHEREAS, Section 9.01(9) of the Indenture provides that, without the consent of the Holders, the Company, the Guarantors and the Trustee may amend the Indenture to allow any Guarantor to execute a supplemental indenture or a Security Guarantee with respect to the Notes in accordance with the applicable provisions of the Indenture;
WHEREAS, the Company and the Guarantors desire to execute and deliver this Second Supplemental Indenture, in accordance with the terms of the Indenture, for the purpose of allowing the Guaranteeing Subsidiaries to unconditionally guarantee all of the Company’s Obligations under the Notes;
WHEREAS, pursuant to Article 9 of the Indenture, the Trustee is authorized to execute and deliver this Second Supplemental Indenture;
WHEREAS, the Company has provided to the Trustee the items required in Section 11.04 of the Indenture;
WHEREAS, pursuant to Section 9.06 of the Indenture, the Company has requested that the Trustee join in the execution of this Second Supplemental Indenture;
WHEREAS, the Company has satisfied all conditions precedent, if any, provided under the Indenture to enable the Company, the Guaranteeing Subsidiaries, the Guarantors and the Trustee to enter into this Second Supplemental Indenture; and
WHEREAS, all things and acts necessary to make this Second Supplemental Indenture the legal, valid and binding obligation of the Company have been done.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors, the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
SECTION 1.1 AMENDMENTS. The Indenture is hereby amended as follows:
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A. |
Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree to provide an unconditional guarantee on the terms and subject to the conditions set forth in the Security Guarantee and in the Indenture including but not limited to Article 10 thereof. |
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B. |
No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Security Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of 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. The waiver may not be effective to waive liabilities under the federal securities laws. |
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.1 DEFINED TERMS. For all purposes of this Second Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Second Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.
SECTION 2.2 INDENTURE. Except as amended hereby, the Indenture is in all respects ratified and confirmed and all the terms 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 Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the Indenture as amended hereby and all terms and conditions of both shall be read together as though they constitute a single agreement, except that in the case of conflict between the Indenture and this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture shall control. In case of a conflict between the terms and conditions contained in the Notes and those contained in the Indenture, as modified and amended by this Second Supplemental Indenture, the provisions of the Indenture, as modified and amended by this Second Supplemental Indenture, shall control. On and after the effective date of this Second Supplemental Indenture, each reference to the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” or the like shall mean and be a reference to the Indenture as supplemented by this Second Supplemental Indenture unless the context otherwise requires.
SECTION 2.3 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA.
SECTION 2.4 SUCCESSORS. All agreements of the Company, the Guaranteeing Subsidiaries, the Guarantors and the Trustee in this Second Supplemental Indenture and the Notes shall bind their respective successors and assigns.
SECTION 2.5 COUNTERPARTS. The parties 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.
SECTION 2.6 SEVERABILITY. In case any one or more of the provisions in this Second Supplemental Indenture or in the Notes 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 2.7 THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.
SECTION 2.8 EFFECTIVENESS; OPERATIVENESS. This Second Supplemental Indenture will become effective and binding upon the Company, the Guaranteeing Subsidiaries, the Guarantors, the Trustee and the holders of the Notes immediately upon execution and delivery thereof by the parties hereto.
SECTION 2.9 EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
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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.
| TNHC COLORADO INC., | ||||
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a Delaware corporation |
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| Members of the Board of Directors | ||||
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/s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx | ||||
| /s/ Xxxx Xxxxxxxx | ||||
| Xxxx Xxxxxxxx | ||||
| /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx | ||||
| EHWP LLC, | ||||
| a Colorado limited liability company | ||||
| EHPP LLC, | ||||
| a Colorado limited liability company | ||||
| EHTCV LLC, | ||||
| a Colorado limited liability company | ||||
| EPIC HOMES AT ANTHEM HIGHLANDS LLC, | ||||
| a Colorado limited liability company | ||||
| THE ORCHARD GROUP LLC, | ||||
| a Colorado limited liability company | ||||
| By: TNHC COLORADO INC. | ||||
| a Delaware corporation | ||||
| as Sole Manager | ||||
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/s/ Xxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxx |
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Its: Chief Financial Officer |
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THE NEW HOME COMPANY INC. |
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/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx |
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Its: Chief Financial Officer |
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[Signatures continue on the following page]
GUARANTORS
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TNHC REALTY AND CONSTRUCTION INC. |
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a Delaware corporation |
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THE NEW HOME COMPANY SOUTHERN CALIFORNIA LLC |
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a Delaware limited liability company |
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THE NEW HOME COMPANY NORTHERN CALIFORNIA LLC |
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a Delaware limited liability company |
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TNHC LAND COMPANY LLC |
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a Delaware limited liability company |
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TNHC ARIZONA LLC |
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a Delaware limited liability company |
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TNHC-SANTA CLARITA GP, LLC |
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a Delaware limited liability company |
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TNHC SAN XXXX LLC |
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a Delaware limited liability company |
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LR8 INVESTORS, LLC |
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a Delaware limited liability company |
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LR8 OWNER, LLC |
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a Delaware limited liability company |
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TNHC-CALABASAS GP LLC |
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a Delaware limited liability company |
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TNHC GROVE INVESTMENT LLC |
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a Delaware limited liability company |
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TNHC CANYON OAKS LLC |
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a Delaware limited liability company |
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TNHC-ARANTINE GP LLC |
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a Delaware limited liability company |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx |
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Its: Chief Financial Officer |
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GUARANTORS cont.
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LARKSPUR LAND 8 OWNER, LLC |
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a Delaware limited liability company |
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LARKSPUR LAND 8 INVESTORS, LLC |
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a Delaware limited liability company |
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DMB/TNHC LLC |
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a Delaware limited liability company |
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TNHC TIDELANDS LLC |
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a Delaware limited liability company |
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TNHC ARIZONA MARKETING LLC |
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a Delaware limited liability company |
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TNHC HOLDINGS LLC, |
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a Delaware limited liability company |
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TNHC HOLDINGS 1 LLC, |
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a Delaware limited liability company |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx |
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Its: Chief Financial Officer |
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U.S. BANK NATIONAL ASSOCIATION, |
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AS TRUSTEE |
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By: |
/s/ Xxxxxx X. Xxxxxxxxxxx | |||
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Name: |
Xxxxxx X. Xxxxxxxxxxx | |||
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Title: |
Vice President | |||
[Signature page to Second Supplemental Indenture - NSHM]
