First Supplemental Indenture, dated as of February 24, 2021, by and between The New Home Company Inc., the guarantors thereto and U.S. Bank National Association as trustee

Exhibit 4.5

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of February 24, 2021, by and between The New Home Company Inc., a Delaware corporation (the “Company”), the guarantors party hereto (the “Guarantors”) and U.S. Bank National Association, as trustee under the Indenture referred to below (in such capacity, the “Trustee”). 

RECITALS

WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture, dated as of October 28, 2020 (the “Indenture”), providing for the issuance of the Company’s 7.250% Senior Notes due 2025 (the “Notes”);

WHEREAS, Section 9.01(1) of the Indenture provides that, without notice to or consent of the Holders, the Company, the Guarantors and the Trustee may amend the Indenture to cure any ambiguity, defect or inconsistency;

WHEREAS, the Company and the Guarantors desire to execute and deliver this First Supplemental Indenture, in accordance with the terms of the Indenture, for the purpose of amending certain provisions in the Indenture in accordance with Section 9.01(1) of the Indenture;

WHEREAS, pursuant to Article 9 of the Indenture, the Trustee is authorized to execute and deliver this First Supplemental Indenture;

WHEREAS, the Company has provided to the Trustee the items required in Section 11.04 of the Indenture;

WHEREAS, pursuant to Section 9.06 of the Indenture, the Company has requested that the Trustee join in the execution of this First Supplemental Indenture;

WHEREAS, the Company has satisfied all conditions precedent, if any, provided under the Indenture to enable the Company, the Guarantors and the Trustee to enter into this First Supplemental Indenture; and

WHEREAS, all things and acts necessary to make this First Supplemental Indenture the legal, valid and binding obligation of the Company have been done.

NOW THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the others and for the equal and ratable benefit of the Holders, as follows:

ARTICLE I

AMENDMENTS TO THE INDENTURE

SECTION 1.1  AMENDMENTS.  The Indenture is hereby amended as follows:

“any guarantee of Indebtedness or other obligations of a joint venture engaged in a Permitted Business; provided that such guarantee constitutes a Permitted Investment under clause (21) of the definition thereof or is a Restricted Payment that is made in accordance with Section 4.04;”

ARTICLE II

MISCELLANEOUS PROVISIONS

SECTION 2.1   DEFINED TERMS.  For all purposes of this First Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this First Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

SECTION 2.2   INDENTURE.  Except as amended hereby, the Indenture is in all respects ratified and confirmed and all the terms thereof shall remain in full force and effect.  This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the Indenture as amended hereby and all terms and conditions of both shall be read together as though they constitute a single agreement, except that in the case of conflict between the Indenture and this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall control.  In case of a conflict between the terms and conditions contained in the Notes and those contained in the Indenture, as modified and amended by this First Supplemental Indenture, the provisions of the Indenture, as modified and amended by this First Supplemental Indenture, shall control.  On and after the effective date of this First Supplemental Indenture, each reference to the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” or the like shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires.

SECTION 2.3   GOVERNING LAW.  THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA.

SECTION 2.4   SUCCESSORS.  All agreements of the Company, the Guarantors and the Trustee in this First Supplemental Indenture and the Notes shall bind their respective successors and assigns.

SECTION 2.5   COUNTERPARTS.  The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

SECTION 2.6   SEVERABILITY.  In case any one or more of the provisions in this First Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

SECTION 2.7   THE TRUSTEE.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.

SECTION 2.8   EFFECTIVENESS; OPERATIVENESS.  This First Supplemental Indenture will become effective and binding upon the Company, the Trustee and the holders of the Notes immediately upon execution and delivery thereof by the parties hereto.

SECTION 2.9   EFFECT OF HEADINGS.  The Section headings herein are for convenience only and shall not affect the construction hereof.

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

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GUARANTORS

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GUARANTORS cont.

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