Contract

Exhibit 4.6

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 6, 2020, among Xxxxxx Xxxxxxxx Communities, Inc., a Delaware corporation (the “Issuer”), the Guarantors, Xxxxxx Xxxxxxxx Home III Corporation, a Delaware corporation (“Successor Holdings”) and U.S. Bank National Association, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H

WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (as heretofore supplemented, the “Indenture”), dated as of June 5, 2019, providing for the issuance of 5.875% Senior Notes due 2027 (the “Notes”);

WHEREAS, on the date hereof, TMM Holdings Limited Partnership, a British Columbia limited partnership (“Predecessor Holdings”) has transferred all of its assets to Successor Holdings;

WHEREAS, pursuant to Section 5.01(a)(2) of the Indenture, Successor Holdings is obligated to expressly assume all of the obligations of Predecessor Holdings under the Indenture, the Notes and its Note Guarantee and shall succeed to, and be substituted for (so that from and after the date of the asset transfer described above, the provisions of the Indenture referring to “Holdings” shall refer instead to Successor Holdings and not to Predecessor Holdings), and may exercise every right and power of Holdings by entering into a supplemental indenture (the “Assumption”);

WHEREAS, pursuant to Section 9.01(a)(3) of the Indenture, Successor Holdings, the Guarantors, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture to provide for the Assumption;

WHEREAS, the Issuer has delivered an Officer’s Certificate and Opinion of Counsel to the Trustee stating that all conditions precedent and covenants related to the execution and delivery of this Supplemental Indenture complies with the Indenture:

WHEREAS, Successor Holdings has complied with all conditions precedent and covenants provided for in the Indenture relating to this Supplemental Indenture; and

WHEREAS, the Issuer has requested that the Trustee 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, Successor Holdings, Predecessor Holdings, the Issuer, the Guarantors 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.    AGREEMENT TO ASSUME OBLIGATIONS. Successor Holdings hereby agrees to unconditionally assume Predecessor Holdings’ rights, obligations, covenants, agreements and liabilities in and under the Indenture, the Notes and its Note Guarantee, to be bound by all provisions of the Indenture, the Notes and its Note Guarantee applicable to Predecessor Holdings and to perform all of the obligations and agreements of Predecessor Holdings under the Indenture, the Notes and its Note Guarantee.

3.    RELEASE. Predecessor Holdings is hereby fully, finally and indefeasibly released from any and all of the covenants, conditions and obligations under or in connection with its Note Guarantee, the Indenture and the Notes. Predecessor Holdings shall have no further obligation, liability, duty or burden in respect of its Note Guarantee, the Indenture and the Notes and shall not exercise any right or power of Holdings or a Guarantor under the Indenture and the Notes.

4.    AMENDMENT. The definition of “Holdings” in Section 1.01 of the Indenture is hereby deleted in its entirety and replaced with the following:

“Holdings” means Xxxxxx Xxxxxxxx Home III Corporation, a Delaware corporation, and any of its successors under the terms of this Indenture.”

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 Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

6.    NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

7.    COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original (including copies transmitted via facsimile or electronic mail), but all of them together represent the same agreement.

8.    EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

9.    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, all of which recitals are made solely by the Guarantors, Successor Holdings and the Issuer.

[Signature pages follow.]

2

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.

ISSUER:

XXXXXX XXXXXXXX COMMUNITIES, INC.
By:		/s/ Xxxxxxx X. Xxxxxxx
Name:		Xxxxxxx X. Xxxxxxx
Title:		Chief Legal Officer, Executive Vice President and Secretary

SUCCESSOR HOLDINGS:

XXXXXX XXXXXXXX HOME III CORPORATION
By:		/s/ Xxxxxxx X. Xxxxxxx
Name:		Xxxxxxx X. Xxxxxxx
Title:		Chief Legal Officer, Executive Vice President and Secretary

PREDECESSOR HOLDINGS:

TMM HOLDINGS LIMITED PARTNERSHIP
By:		/s/ Xxxxxxx X. Xxxxxxx
Name:		Xxxxxxx X. Xxxxxxx
Title:		Chief Legal Officer, Executive Vice President and Secretary

Signature Page to 2027 Notes – First Supplemental Indenture

TRUSTEE:

U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:		/s/ Xxxxxx X. Xxxx
Name:		Xxxxxx X. Xxxx
Title:		Vice President

Signature Page to 2027 Notes – First Supplemental Indenture

GUARANTORS:

ATPD, LLC

AV HOMES OF ARIZONA, LLC

AV HOMES OF RALEIGH, LLC

AV HOMES, INC.

AVATAR PROPERTIES INC.

AVH CAROLINAS, LLC

AVH DFW, LLC

AVH EM, LLC

AVH NORTH FLORIDA, LLC

BONTERRA BUILDERS, LLC

DARLING HOMES OF TEXAS, LLC

DFP TEXAS (GP), LLC

JCH GROUP, LLC

ROYAL OAK HOMES, LLC

XXXXXX XXXXXXXX AT XXXXXXX FALLS, LLC

XXXXXX XXXXXXXX ESPLANADE NAPLES, LLC

XXXXXX XXXXXXXX FINANCE, INC.

XXXXXX XXXXXXXX HOLDINGS OF ARIZONA, INC.

XXXXXX XXXXXXXX HOLDINGS, INC.

XXXXXX XXXXXXXX HOME III CORPORATION

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.

XXXXXX XXXXXXXX/ARIZONA, INC.

XXXXXX XXXXXXX COMMUNITIES – LEAGUE CITY, LTD.

XXXXXX XXXXXXX COMMUNITIES AT ARTISAN LAKES, L.L.C.

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

TM RIDGE GP, LLC

TM RIDGE LP, LLC

TW ACQUISITIONS, INC.

TWC/FALCONHEAD WEST, L.L.C.

TWC/MIRASOL, INC.

Signature Page to 2027 Notes – First Supplemental Indenture

TWC/XXXXXXX RANCH, LLC
VITALIA AT TRADITION, LLC
On behalf of each of the above named entities,
By:		/s/ Xxxxxxx X. Xxxxxxx
Name:		Xxxxxxx X. Xxxxxxx
Title:		Chief Legal Officer, Executive Vice President and Secretary

Signature Page to 2027 Notes – First Supplemental Indenture