NINTH SUPPLEMENTAL INDENTURE dated as of December 28, 2011 among Kennedy- Wilson, Inc., Kennedy-Wilson Holdings, Inc., The Released Subsidiaries Party Hereto, The Guarantors Party Hereto and Wilmington Trust, National Association as Trustee
Exhibit 4.9
dated as of December 28, 2011
among
Xxxxxxx-Xxxxxx, Inc.,
Xxxxxxx-Xxxxxx Holdings, Inc.,
The Released Subsidiaries Party Hereto,
The Guarantors Party Hereto
and
Wilmington Trust, National Association
as Trustee
8.750% Senior Notes due 2019
THIS NINTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as of December 28, 2011, among Xxxxxxx-Xxxxxx, Inc., a Delaware corporation (the “Company”), KW Anaheim Land Partners LLC, a Delaware limited liability company, Pacifica West Coast Partners, LLC, a California limited liability company, KW Multi-Family Management Group, a California corporation, KW Mill Creek Property Manager, LLC, a California limited liability company, KW Sunrise Carlsbad, LLC, a Delaware limited liability company, and Sunrise Property Associates, LLC, a Delaware limited liability company (each a “Released Subsidiary” and collectively, the “Released Subsidiaries”), the Guarantors (as defined in the Indenture referred to below), Xxxxxxx-Xxxxxx Holdings, Inc., a Delaware corporation, as the Parent Guarantor (the “Parent Guarantor”), and Wilmington Trust, National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company, the Guarantors party thereto and Wilmington Trust FSB, as trustee, entered into the Indenture, dated as of April 1, 2011 (the “Indenture”), relating to the Company’s 8.750% Senior Notes due 2019 (the “Notes”);
WHEREAS, the Trustee succeeded Wilmington Trust FSB, as trustee under the Indenture as of July 1, 2011, pursuant to the provisions of Section 7.09 of the Indenture;
WHEREAS, Section 10.09 of the Indenture provides that under certain circumstances the Guaranty (as defined in the Indenture) of a Released Subsidiary will terminate;
WHEREAS, the Company and the Released Subsidiaries have duly authorized the execution and delivery of this Supplemental Indenture, subject to the terms and conditions described herein;
WHEREAS, the Company, Released Subsidiaries, the Parent Guarantor and the Guarantors have requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make this Supplemental Indenture a valid instrument in accordance with its terms and to give effect to the terms and conditions set forth herein and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. The Guaranty of each Released Subsidiary named above is hereby terminated pursuant to Section 10.09 of the Indenture.
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Section 3. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.
Section 5. 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 Company and the Released Subsidiaries.
Section 6. This Supplemental Indenture is an amendment supplemental to the Indenture and the Indenture and this Supplemental Indenture will henceforth be read together.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| Xxxxxxx-Xxxxxx, Inc., as Company | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: Chief Financial Officer | ||
| Xxxxxxx-Xxxxxx Holdings, Inc., as Parent Guarantor | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: Chief Financial Officer | ||
| Wilmington Trust, National Association, as Trustee | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| Each of the Guarantors named in Exhibit A hereto | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: President and Secretary | ||
| Each of the Released Subsidiaries named in Exhibit B hereto | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: President and Secretary | ||
[Supplemental Indenture Signature Page]
Exhibit A
Guarantors
XXXXXXX-XXXXXX PROPERTIES LTD.
XXXXXXX-XXXXXX PROPERTY SERVICES, INC.
XXXXXXX-XXXXXX PROPERTY SERVICES II, INC.
XXXXXXX XXXXXX PROPERTY SERVICES III, XX
XXXXXXX-XXXXXX PROPERTY EQUITY, INC.
XXXXXXX-XXXXXX PROPERTY EQUITY II, INC.
XXXXXXX-XXXXXX PROPERTY SPECIAL EQUITY, INC.
XXXXXXX-XXXXXX PROPERTY SPECIAL EQUITY II, INC.
XXXXXXX XXXXXX PROPERTY SPECIAL EQUITY III, LLC
K-W PROPERTIES
XXXXXXX XXXXXX PROPERTY SERVICES III GP, LLC
KW BASGF II MANAGER, LLC
KWF INVESTORS I, LLC
KWF INVESTORS II, LLC
KW INVESTORS III, LLC
KWF MANAGER I, LLC
KWF MANAGER II, LLC
KWF MANAGER III, LLC
XXXXXXX XXXXXX OVERSEAS INVESTMENTS, INC.
FAIRWAYS 340 CORP.
KW - RICHMOND, LLC
SG KW VENTURE I MANAGER LLC
KW LOAN PARTNERS I, LLC
KW LOAN PARTNERS II LLC
KW SUMMER HOUSE MANAGER, LLC
KW MONTCLAIR, LLC
KW BLOSSOM HILL MANAGER, LLC
KW SERENADE MANAGER, LLC
X-X XXXXXXXX INC.
XX XXXXXXX MANAGER, LLC
XXXXXXXXXX RANCH AINA LLC
68-540 XXXXXXXXXX, LLC
XX XXXXXXXXXX AINA LLC
XXXXXXX XXXXXX FUND MANAGEMENT GROUP, LLC
XXXXXXX XXXXXX INTERNATIONAL
XXXXXXX XXXXXX TECH, LTD.
KWP FINANCIAL X.
XXXXXXX XXXXXX AUCTION GROUP INC.
XXXXXXX-XXXXXX PROPERTIES, LTD.
KWF MANAGER IV, LLC
KWF MANAGER V, LLC
KW IRELAND, LLC
XXXXXXX XXXXXX PROPERTY EQUITY IV, LLC
KW RESIDENTIAL GROUP, INC.
KWF FUND IV – KOHANAIKI, LLC
KW TELSTAR PARTNERS, LLC
KWF INVESTORS IV, LLC
KWF INVESTORS V, LLC
Exhibit B
Released Subsidiaries
KW ANAHEIM LAND PARTNERS LLC
PACIFICA WEST COAST PARTNERS, LLC
KW MULTI-FAMILY MANAGEMENT GROUP
KW MILL CREEK PROPERTY MANAGER, LLC
KW SUNRISE CARLSBAD, LLC
SUNRISE PROPERTY ASSOCIATES, LLC
