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Exhibit 4.4
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of June 8, 2001, among WCI Capital Corporation (the "Guaranteeing
Subsidiary"), a subsidiary of WCI Communities, Inc. (or its permitted
successor), a Delaware corporation (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and The Bank of New
York, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture") dated as of February 20, 2001
providing for the issuance of an aggregate principal amount of up to
$350,000,000 of 10 5/8% Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, the Company previously issued $250,000,000 of the
Notes as of February 20, 2001 (the "Initial Notes"), and now wishes to issue the
remaining $100,000,000 of the Notes permitted to be issued under the Indenture
(the "Additional Notes");
WHEREAS, the Indenture provides that a supplemental indenture
must be executed and delivered to the Trustee in order to issue the Additional
Notes;
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the 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 (the "Note
Guarantee"); and
WHEREAS, pursuant to Sections 9.01(f) and (g) of the
Indenture, the Trustee is authorized 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 Guaranteeing Subsidiary and the Company 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. ISSUANCE OF ADDITIONAL NOTES AND GUARANTEES. The Company
agrees to issue the Additional Notes and the Guaranteeing Subsidiary and the
other Guarantors each agree to unconditionally guarantee all of the Company's
obligations under the Additional Notes, in each case in accordance with the
terms and conditions set forth in the Indenture.
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3. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, the Notes or the obligations
of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes
will be promptly paid in full when due,
whether at maturity, by acceleration,
redemption or otherwise, and interest on the
overdue principal of and interest on the
Notes, if any, if lawful, and all other
obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in
accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other
obligations, that same will be promptly paid
in full when due or performed in accordance
with the terms of the extension or renewal,
whether at stated maturity, by acceleration
or otherwise. Failing payment when due of
any amount so guaranteed or any performance
so guaranteed for whatever reason, the
Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a guarantor.
(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes
and the Indenture, and the Guaranteeing Subsidiary accepts all
obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors,
any
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amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for the purposes of
this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the
Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and
fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving
effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under
Article 11 of the Indenture, this new Note Guarantee shall be
limited to the maximum amount permissible such that the
obligations of such Guarantor under this Note Guarantee will
not constitute a fraudulent transfer or conveyance.
4. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Note Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
5. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or
merge with or into (whether or not such Guarantor is the
surviving Person) another corporation, Person or entity
whether or not affiliated with such Guarantor unless:
(i) subject to Sections 11.04 and 11.05 of the
Indenture, the Person formed by or surviving
any such consolidation or merger (if other
than a Guarantor or the Company)
unconditionally assumes all the obligations
of such Guarantor, pursuant to a
supplemental indenture in form and substance
reasonably satisfactory to the
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Trustee, under the Notes, the Indenture and
the Note Guarantee on the terms set forth
herein or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default
exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the
Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of
the Indenture to be performed by the Guarantor, such successor
corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor corporation thereupon may cause
to be signed any or all of the Note Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the
Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the
Indenture as the Note Guarantees theretofore and thereafter
issued in accordance with the terms of the Indenture as though
all of such Note Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 11.05
of Article 11 of the Indenture, and notwithstanding clauses
(a) and (b) above, nothing contained in the Indenture or in
any of the Notes shall prevent any consolidation or merger of
a Guarantor with or into the Company or another Guarantor, or
shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to
the Company or another Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the
capital stock of any Guarantor, in each case to a Person that
is not (either before or after giving effect to such
transaction) a Restricted Subsidiary of the Company, then such
Guarantor (in the event of a sale or other disposition, by way
of merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Note
Guarantee; provided that the net proceeds of such sale or
other disposition are applied in accordance with the
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order
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to evidence the release of any Guarantor from its obligations
under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other
obligations of any Guarantor under the Indenture as provided
in Article 11 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the 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.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. 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.
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. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. 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 Guaranteeing Subsidiary and the
Company.
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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.
WCI CAPITAL CORPORATION
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WCI COMMUNITIES, INC.
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Senior Vice President
BAY COLONY-GATEWAY, INC.
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Senior Vice President
FINANCIAL RESOURCES GROUP, INC.
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Senior Vice President
FIRST FIDELITY TITLE, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
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FLORIDA LIFESTYLE MANAGEMENT COMPANY
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
LIVINGSTON NAPLES, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
LIVINGSTON ROAD, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
PANTHER DEVELOPMENTS, LLC
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
SUN CITY CENTER GOLF PROPERTIES, INC.
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Senior Vice President
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SUN CITY CENTER REALTY, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WATERMARK REALTY, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WI ULTRACORP OF FLORIDA, INC.
By: /s/ George R. Page
______________________________
Name: George R. Page
Title: President
THE COLONY AT PELICAN LANDING GOLF CLUB, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
COMMUNITIES AMENITIES, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
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COMMUNITIES HOME BUILDERS, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
GATEWAY COMMUNICATIONS SERVICES, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
JYC HOLDINGS, INC.
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Vice President
MARBELLA AT PELICAN BAY, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
PELICAN LANDING GOLF RESORT VENTURES, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
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SARASOTA TOWER, INC.
By: /s/ George R. Page
______________________________
Name: George R. Page
Title: President
TARPON COVE YACHT & RACQUET CLUB, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
TIBURON GOLF VENTURES, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WATERMARK POOLS, INC.
By: /s/ Thomas McCall
______________________________
Name: Thomas McCall
Title: Secretary
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WATERMARK REALTY REFERRAL, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WCI COMMUNITIES PROPERTY MANAGEMENT, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WCI GOLF GROUP, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
WCI REALTY, INC.
By: /s/ James D. Cullen
______________________________
Name: James D. Cullen
Title: Vice President
BAY COLONY REALTY ASSOCIATES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
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BAY COLONY OF NAPLES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
CORAL RIDGE COMMUNITIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
CORAL RIDGE PROPERTIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
CORAL RIDGE REALTY, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
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CORAL RIDGE REALTY SALES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
FLORIDA DESIGN COMMUNITIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
FLORIDA NATIONAL PROPERTIES, INC.
By: /s/ Steven C. Adelman
______________________________
Name: Steven C. Adelman
Title: Treasurer
GATEWAY COMMUNITIES, INC.
By: /s/ Steven C. Adelman
______________________________
Name: Steven C. Adelman
Title: Treasurer
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GATEWAY REALTY SALES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
HERON BAY, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
HERON BAY GOLF COURSE PROPERTIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
PELICAN BAY PROPERTIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
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PELICAN LANDING COMMUNITIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
PELICAN LANDING PROPERTIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
PELICAN MARSH PROPERTIES, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
TARPON COVE REALTY, INC.
By: /s/ Vivien N. Hastings
______________________________
Name: Vivien N. Hastings
Title: Secretary
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WCI HOMES, INC.
By: /s/ Armando J. Goenaga
______________________________
Name: Armando J. Goenaga
Title: Vice President
COMMUNITIES FINANCE COMPANY, LLC
By: /s/ James P. Dietz
______________________________
Name: James P. Dietz
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By:/s/ Mary Lagumina
______________________________
Name: Mary Lagumina
Title: