ex4-1.htm


    
      

    

    Exhibit
4.1

     

     

    SECOND
SUPPLEMENTAL INDENTURE

     

    This
SECOND SUPPLEMENTAL INDENTURE (the “Second Supplemental Indenture”) is dated as
of February 23, 2009 (the “Effective Date”), and made by and among ASHTON WOODS
USA L.L.C., a Nevada limited liability company (the “Issuer”), ASHTON WOODS
FINANCE CO., a Delaware corporation (the “Co-Issuer” and, together with Issuer,
the “Issuers”), the guarantors listed on the signature page hereto and HSBC Bank
USA, N.A., as successor trustee (the “Trustee”), to the Indenture, dated as of
September 21, 2005, among the Issuers, the guarantors party thereto (the
“Original Guarantors”) and U.S. Bank National Association, as original trustee
(the “Original Trustee”), as amended by the First Supplemental Indenture, dated
as of December 9, 2005, among the Issuers, Ashton Woods Transportation, LLC (the
“Additional Guarantor” and, together with Original Guarantors, the
“Guarantors”), the Original Guarantors and the Original Trustee (as supplemented
and amended, the “Indenture”).  Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture.

     

    WITNESSETH:

     

    WHEREAS,
the Issuers, the Guarantors and the Original Trustee have heretofore executed
and delivered the Indenture providing for the issuance of 9.5% Senior
Subordinated Notes due 2015 (the “Notes”) of the Issuers;

     

    WHEREAS,
the Issuer has entered into a Lock-Up and Support Agreement, dated as of
December 1, 2008 (the “Lock-Up Agreement”), regarding a proposed restructuring
of the indebtedness and equity of the Issuer with (i) certain beneficial owners
(or investment managers, agents, affiliates, advisors or other authorized
representatives for the beneficial owners) of the Notes, and (ii) the equity
owners of the Issuer and their affiliates party thereto;

     

    WHEREAS,
pursuant to the Lock-Up Agreement, the Issuers have launched an exchange offer
and consent solicitation, and the Issuers have offered to exchange any and all
of the outstanding Notes upon the terms and subject to the conditions set forth
in the Offering Memorandum and Consent Solicitation Statement, dated January 13,
2009 and Letter of Transmittal and Consent, each as may be amended, supplemented
or modified (the “Exchange Offer and Consent Solicitation”);

     

    WHEREAS,
Section 8.02 of the Indenture provides that the Issuers, the Guarantors and the
Trustee may amend certain provisions of the Indenture, with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding; provided, however, that an amendment to Section 4.19 of the
Indenture requires the consent of the Holders of not less than two-thirds in
aggregate principal amount of the Notes then outstanding;

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
the Exchange Offer and Consent Solicitation is conditioned upon, among other
things, the proposed amendments to the Indenture set forth herein (the “Proposed
Amendments”) having been approved by the requisite percentage of the aggregate
principal amount of all outstanding Notes, with this Supplemental Indenture
becoming effective immediately prior to the closing of the Exchange Offer and
Consent Solicitation with respect to the Indenture upon the acceptance for
exchange of Notes representing at least 95% of the total principal amount of the
outstanding Notes pursuant to the Exchange Offer and Consent Solicitation, which
condition may be waived in certain circumstances (the
“Acceptance”);

     

    WHEREAS,
the Issuers have received and delivered to the Trustee the requisite consents to
effect the Proposed Amendments under the Indenture;

     

    WHEREAS,
the Issuers and Guarantors have been authorized by a resolution of their Board
of Directors or other applicable governing body to enter into this Supplemental
Indenture and the Trustee has received an Officers’ Certificate and Opinion of
Counsel pursuant to Section 8.06 of the Indenture; and

     

    WHEREAS,
all other acts and proceedings required by law, by the Indenture and the
organizational documents of the Issuers and Guarantors to make this Supplemental
Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been duly done and performed.

     

    NOW
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt of
which is hereby acknowledged, and for the equal and proportionate benefit of the
Holders of the Notes, the Issuers, the Guarantors and the Trustee hereby agree
as follows:

     

    Article
I.

     

    Amendments to the
Indenture

     

    1.1    Amendment of Section
4.02.  Section 4.02 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.2    Amendment of Section
4.03.  Section 4.03 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.3    Amendment of Section
4.05.  Section 4.05 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    1.4    Amendment of Section
4.06.  Section 4.06 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.5    Amendment of Section
4.08.  Section 4.08 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.6    Amendment of Section
4.09.  Section 4.09 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.7    Amendment of Section
4.10.  Section 4.10 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.8    Amendment of Section
4.11.  Section 4.11 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.9    Amendment of Section
4.12.  Section 4.12 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.10   
  Amendment of Section
4.13.  Section 4.13 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.11   
  Amendment of Section
4.14.  Section 4.14 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.12   
  Amendment of Section
4.15.  Section 4.15 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.13   
  Amendment of Section
4.16.  Section 4.16 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.14   
  Amendment of Section
4.17.  Section 4.17 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    1.15  
   Amendment of Section
4.18.  Section 4.18 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.16   
  Amendment of Section
4.19.  Section 4.19 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.17   
  Amendment of Section
4.20.  Section 4.20 of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.18   
  Amendment of Article
Five.  Article Five of the Indenture is hereby deleted in its
entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.19   
  Amendment of Section
6.01(3).  Section 6.01(3) of the Indenture is hereby deleted in
its entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.20   
  Amendment of Section
6.01(5).  Section 6.01(5) of the Indenture is hereby deleted in
its entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.21   
  Amendment of Section
6.01(6).  Section 6.01(6) of the Indenture is hereby deleted in
its entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.22   
  Amendment of Section
6.01(9).  Section 6.01(9) of the Indenture is hereby deleted in
its entirety and is replaced with the following:  “[intentionally
omitted]”.

     

    1.23   
  Amendment of Defined
Terms.  All terms defined in Sections 1.01 and 1.02 of the
Indenture and contained in the Articles, Sections and Clauses of the Indenture
deleted pursuant to Sections 1.1 through 1.22, inclusive, of this Supplemental
Indenture, but not otherwise used elsewhere in the Indenture, are hereby deleted
in their entirety.

     

    1.24
     Amendment of Section
References.  All references in the Indenture to the Articles,
Sections and Clauses of the Indenture deleted pursuant to this Article I of this
Supplemental Indenture are hereby deleted in their entirety.

     

    1.25
     Amendment to Notes and
Guarantee.  The Notes and Guarantee are hereby amended to
delete all provisions inconsistent with the amendments to the Indenture effected
by this Article I of this Supplemental Indenture.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    Article
II.

     

    Waiver

     

    2.1    Waiver of Past Defaults and
Events of Defaults.  As of the date hereof, all Defaults and/or
Events of Default or other consequences due to the Issuers’ or Guarantors’
failure to comply with any of the terms or conditions of the Indenture, either
on or before the Effective Date of this Supplemental Indenture, have been waived
by Holders of a majority of the principal amount of the indebtedness outstanding
to the extent permitted by Section 6.04 of the Indenture.

     

    Article
III.

     

    Effectiveness

     

    3.1    Effectiveness of this
Supplemental Indenture.  This Supplemental Indenture is entered
into pursuant to and consistent with Section 8.02 of the Indenture, and nothing
herein shall constitute a waiver, amendment, modification or deletion of any
provision of the Indenture requiring the consent of each Holder affected thereby
pursuant to clauses (b)(1) through (10) of Section 8.02 of the Indenture other
than with respect to Holders who provided consent to such waiver, amendment,
modification or deletion.  Upon the execution of this Supplemental
Indenture by the Issuers, the Guarantors and the Trustee, and the Acceptance,
the Indenture shall be amended and supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes and
each Holder shall be bound thereby.

     

    Article
IV.

     

    Miscellaneous

     

    4.1    Continuing Effect of the
Indenture.  Except as expressly provided herein, all of the
terms, provisions and conditions of the Indenture and the Notes outstanding
thereunder shall remain in full force and effect.

     

    4.2    Reference and Effect on the
Indenture.  On and after the Acceptance, each reference in the
Indenture to “the Indenture,” “this Indenture,” “hereunder,” “hereof” or
“herein” shall mean and be a reference to the Indenture as supplemented by this
Second Supplemental Indenture, unless the context otherwise
requires.

     

    4.3    Trust Indenture Act
Controls.  If any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with another provision of this Second
Supplemental Indenture or the Indenture that is required to be included by the
Trust Indenture Act of 1939, as amended, as in force at the date this Second
Supplemental Indenture is executed, the provision required by said Act shall
control.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    4.4    Governing
Law.  This Second Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York 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.

     

    4.5    Separability.  In
case any provision of this Second Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.

     

    4.6    Counterparts.  This
Second Supplemental Indenture may be executed in any number of counterparts and
by telecopier, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.

     

    4.7    Trustee.  The
Trustee makes no representations as to the validity or sufficiency of this
Second Supplemental Indenture.

     

    


     

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    IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first written above.

     

    


    
      	 
      	
              ASHTON
      WOODS USA L.L.C.

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Jerry Patava

            	 
      
	 
      	 
      	
              Name:

            	
              Jerry
      Patava

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              ASHTON
      WOODS FINANCE CO.

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Jerry Patava

            	 
      
	 
      	 
      	
              Name:

            	
              Jerry
      Patava

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              ASHTON
      WOODS TRANSPORTATION, LLC

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By:
      ASHTON WOODS USA L.L.C., sole member

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      


    

     

    

      [Second
Supplemental Indenture Signature Page]

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 
      	
              ASHTON
      ATLANTA RESIDENTIAL, L.L.C.

            	 
      
	 
      	
              CANYON
      REALTY L.L.C.

            	 
      
	 
      	
              ASHTON
      DALLAS RESIDENTIAL L.L.C.

            	 
      
	 
      	
              ASHTON
      HOUSTON RESIDENTIAL L.L.C.

            	 
      
	 
      	
              ASHTON
      WOODS CORPORATE, LLC

            	 
      
	 
      	
              ASHTON
      ORLANDO RESIDENTIAL L.L.C.

            	 
      
	 
      	
              ASHTON
      BURDEN, LLC

            	 
      
	 
      	
              ASHTON
      WOODS ARIZONA L.L.C.

            	 
      
	 
      	
              ASHTON
      TAMPA RESIDENTIAL, LLC

            	 
      
	 
      	
              ASHTON
      DENVER RESIDENTIAL, LLC

            	 
      
	 
      	
              ASHTON
      WOODS LAKESIDE L.L.C.

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              ASHTON
      WOODS CONSTRUCTION, LLC

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By:  ASHTON
      WOODS ARIZONA L.L.C., sole

              member

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              ASHTON
      WOODS ORLANDO LIMITED PARTNERSHIP

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By:  ASHTON
      WOODS LAKESIDE L.L.C.,

              general
      partner

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      


    

     

     

    
      [Second
Supplemental Indenture Signature Page]

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 
      	
              ASHTON
      BROOKSTONE, INC.

            	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Thomas Krobot

            	 
      
	 
      	 
      	
              Name:

            	
              Thomas
      Krobot

            	 
      
	 
      	 
      	
              Title:

            	
              Authorized
      Signatory

            	 
      


    

     

     

    
      [Second
Supplemental Indenture Signature Page]

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 
      	
              HSBC
      BANK USA, N.A., as successor Trustee

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
              By

            	
              /s/ Robert A. Conrad

            	 
      
	 
      	 
      	
              Name:

            	
              Robert
      A. Conrad

            	 
      
	 
      	 
      	
              Title:

            	
              Vice
      President

            	 
      


    

     

     

     

    
      [Second
Supplemental Indenture Signature Page]