SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.2
EXECUTION VERSION
Second Supplemental Indenture (this “Supplemental Indenture”), dated as of October 2, 2018, among Xxxxxx Xxxxxxxx Communities, Inc., a Delaware corporation (the “Qualified Successor”), certain subsidiaries listed on Schedule 1 hereto, each a subsidiary of the Qualified Successor (each, a “Guaranteeing Subsidiary”), AV Homes, Inc., a Delaware corporation (the “Company” or “AV Homes”), certain subsidiaries of the Company listed on Schedule 2 hereto (the “Existing Subsidiary Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, each of the Company and the Subsidiary Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee an indenture (as supplemented by the First Supplemental Indenture, dated as of January 11, 2018, between AVH DFW, LLC, an Arizona Limited Liability Company and the Trustee, the “Indenture”), dated as of May 18, 2017, providing for the issuance of an unlimited aggregate principal amount of 6.625% Senior Notes due 2022 (the “Notes”);
WHEREAS, pursuant to the terms of the Indenture, as a condition to the occurrence of a Covenant Replacement Event, the Qualified Successor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Qualified Successor shall assume all of the obligations of the Company under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture;
WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01(a) of the Indenture, the Trustee is authorized and hereby directed to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to be Bound. The Qualified Successor hereby expressly assumes the Company’s Obligations for the due and punctual payment of principal, premium, if any, and interest (including Additional Interest, if any) on the Notes issued pursuant to the Indenture and all other Obligations under the Indenture, the Notes and the Registration Rights Agreement. The Qualified Successor hereby becomes a party to the Indenture and the Registration Rights Agreement as the Company and as such shall have all of the rights and be subject to all of the obligations and agreements of
the Company under the Indenture and the Registration Rights Agreement. The Qualified Successor agrees to be bound by all of the provisions of the Indenture, the Notes and the Registration Rights Agreement applicable to the Company and to perform all of the obligations and agreements of the Company under the Indenture, the Notes and the Registration Rights Agreement.
3. Release. AV Homes hereby is released from all of the obligations of the Company, and relinquishes all of the rights of the Company, that are assumed or acquired by the Qualified Successor pursuant to this Supplemental Indenture.
4. Guarantors. Each Guaranteeing Subsidiary hereby agrees to be a Subsidiary Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Subsidiary Guarantors, including Article 10 thereof. Each Existing Subsidiary Guarantor hereby confirms that its obligations under the Registration Rights Agreement continue to be in effect.
5. Merger. Each Subsidiary Guarantor hereby confirms that its Subsidiary Guarantee shall apply to the Qualified Successor’s Obligations under the Indenture and the Notes.
6. Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. Waiver of Jury Trial. EACH OF THE QUALIFIED SUCCESSOR, THE GUARANTEEING SUBSIDIARIES, THE EXISTING SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8. 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.
9. Headings. The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
10. Trustee Not Responsible for Recitals. The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| XXXXXX XXXXXXXX COMMUNITIES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Executive Vice President, Chief Legal Officer and Secretary | ||
| ATPD, LLC | ||
| DARLING HOMES OF TEXAS, LLC | ||
| DFP TEXAS (GP), LLC | ||
| XXXXXX XXXXXXXX AT XXXXXXX FALLS, LLC | ||
| XXXXXX XXXXXXXX ESPLANADE NAPLES, LLC | ||
| XXXXXX XXXXXXXX FINANCE, INC. | ||
| XXXXXX XXXXXXXX HOLDINGS OF ARIZONA, INC. | ||
| XXXXXX XXXXXXXX MARBLEHEAD HOLDINGS, LLC | ||
| XXXXXX XXXXXXXX OF CALIFORNIA, LLC | ||
| XXXXXX XXXXXXXX OF CAROLINAS, INC. | ||
| XXXXXX XXXXXXXX OF COLORADO, INC. | ||
| XXXXXX XXXXXXXX OF FLORIDA, INC. | ||
| XXXXXX XXXXXXXX OF GEORGIA, LLC | ||
| XXXXXX XXXXXXXX OF ILLINOIS, INC. | ||
| XXXXXX XXXXXXXX OF TEXAS, INC. | ||
| XXXXXX XXXXXXXX PACIFIC POINT HOLDINGS, LLC | ||
| XXXXXX XXXXXXXX SERVICES, INC. | ||
| XXXXXX XXXXXXXX TRAMONTO HOLDINGS, LLC | ||
| XXXXXX XXXXXXXX, INC. | ||
Signature Page to Supplemental Indenture – Qualified Successor
| XXXXXX XXXXXXXX/ARIZONA, INC. | ||
| XXXXXX XXXXXXX COMMUNITIES AT ARTISAN LAKES, L.L.C. | ||
| XXXXXX XXXXXXX COMMUNITIES – LEAGUE CITY, LTD. | ||
| XXXXXX XXXXXXX COMMUNITIES AT MIRASOL, LTD. | ||
| XXXXXX XXXXXXX COMMUNITIES AT PORTICO, L.L.C. | ||
| XXXXXX XXXXXXX COMMUNITIES AT ST. XXXXX FOREST, L.L.C. | ||
| XXXXXX XXXXXXX HOMES – CENTRAL FLORIDA DIVISION, L.L.C. | ||
| XXXXXX XXXXXXX HOMES – SOUTHWEST FLORIDA DIVISION, L.L.C. | ||
| TM CALIFORNIA SERVICES, INC. | ||
| TM HOMES OF ARIZONA, INC. | ||
| TM OYSTER HARBOR, LLC | ||
| TW ACQUISITIONS, INC. | ||
| TWC/FALCONHEAD WEST, L.L.C. | ||
| TWC/MIRASOL, INC. | ||
| TWC/XXXXXXX RANCH, LLC | ||
| TM RIDGE GP, LLC | ||
| TM RIDGE LP, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Executive Vice President, Chief Legal Officer and Secretary | ||
Signature Page to Supplemental Indenture – Qualified Successor
| AV HOMES, INC. | ||
| JCH GROUP, LLC | ||
| AVH CAROLINAS, LLC | ||
| AVH HOMES OF RALEIGH, LLC | ||
| AVH EM, LLC | ||
| AV HOMES OF ARIZONA, LLC | ||
| AVH DFW, LLC | ||
| AVATAR PROPERTIES, INC. | ||
| ROYAL OAK HOMES, LLC | ||
| VITALIA AT TRADITION, LLC | ||
| AVH NORTH FLORIDA, LLC | ||
| BONTERRA BUILDERS, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Executive Vice President, Chief Legal Officer and Secretary | ||
Signature Page to Supplemental Indenture – Qualified Successor
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Vice President | ||
Signature Page to Supplemental Indenture – Qualified Successor
Schedule 1
Guaranteeing Subsidiaries
| Name |
Jurisdiction | |
| ATPD, LLC |
Arizona | |
| AV Homes, Inc. |
Delaware | |
| Darling Homes of Texas, LLC |
Texas | |
| DFP Texas (GP), LLC |
Texas | |
| Xxxxxx Xxxxxxxx, Inc. |
Delaware | |
| Xxxxxx Xxxxxxxx at Crystal Falls, LLC |
Texas | |
| Xxxxxx Xxxxxxxx Holdings of Arizona, Inc. |
Arizona | |
| Xxxxxx Xxxxxxxx Marblehead Holdings, LLC |
Delaware | |
| Xxxxxx Xxxxxxxx of California, LLC |
California | |
| Xxxxxx Xxxxxxxx of Carolinas, Inc. |
North Carolina | |
| Taylor Morrison of Colorado, Inc. |
Colorado | |
| Xxxxxx Xxxxxxxx of Florida, Inc. |
Florida | |
| Xxxxxx Xxxxxxxx of Georgia, LLC |
Xxxxxxx | |
| Xxxxxx Xxxxxxxx of Illinois, Inc. |
Illinois | |
| Xxxxxx Xxxxxxxx of Texas, Inc. |
Texas | |
| Xxxxxx Xxxxxxxx Pacific Point Holdings, LLC |
Delaware | |
| Xxxxxx Xxxxxxxx Services, Inc. |
Delaware | |
| Xxxxxx Xxxxxxxx Tramonto Holdings, LLC |
Delaware | |
| Xxxxxx Xxxxxxxx/Arizona, Inc. |
Arizona | |
| Xxxxxx Xxxxxxx Communities – League City, Ltd. |
Texas | |
| Xxxxxx Xxxxxxx Communities At Mirasol, Ltd. |
Florida | |
| Xxxxxx Xxxxxxx Communities At Portico, L.L.C. |
Florida | |
| Xxxxxx Xxxxxxx Communities At St. Xxxxx Forest, L.L.C. |
Florida | |
| Xxxxxx Xxxxxxx Homes – Central Florida Division, L.L.C. |
Florida | |
| Xxxxxx Xxxxxxx Homes – Southwest Florida Division, L.L.C. |
Florida | |
| Xxxxxx Xxxxxxx Communities at Artisan Lakes, L.L.C. |
Florida | |
| TM California Services, Inc. |
Delaware | |
| TM Homes of Arizona, Inc. |
Arizona |
| Name |
Jurisdiction | |
| TW Acquisitions, Inc. |
Florida | |
| TWC/Falconhead West, L.L.C. |
Texas | |
| TWC/Mirasol, Inc. |
Florida | |
| TWC/Xxxxxxx Ranch, LLC |
Texas | |
| TM Oyster Harbor, LLC |
Florida | |
| Xxxxxx Xxxxxxxx Esplanade Naples, LLC |
Florida | |
| TM Ridge GP, LLC |
Texas | |
| TM Ridge LP, LLC |
Texas |
Schedule 2
Existing Subsidiary Guarantors
| Name |
Jurisdiction | |
| Avatar Properties Inc. |
Florida | |
| Royal Oak Homes, LLC |
Florida | |
| Bonterra Builders, LLC |
North Carolina | |
| JCH Group, LLC |
Delaware | |
| Vitalia at Tradition, LLC |
Florida | |
| AVH North Florida, LLC |
Florida | |
| AVH Carolinas, LLC |
Arizona | |
| AVH DFW, LLC |
Arizona | |
| AV Homes of Raleigh, LLC |
Arizona | |
| AVH EM, LLC |
Arizona | |
| AV Homes of Arizona, LLC |
Arizona |
