EXHIBIT 4.3
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X.X. XXXXXX, INC. AND THE GUARANTORS PARTY HERETO
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of April 17, 1998
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8 3/8% SENIOR NOTES
DUE 2004
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THIRD SUPPLEMENTAL INDENTURE, dated as of April 17, 1998, to the
Indenture, dated as of June 9, 1997 (as amended, modified or supplemented from
time to time in accordance therewith, the "Indenture"), by and among X.X.
XXXXXX, INC., a Delaware corporation (the "Company"), the ADDITIONAL GUARANTORS
(as defined herein), the EXISTING GUARANTORS (as defined herein) and AMERICAN
STOCK TRANSFER & TRUST COMPANY, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into the Indenture to
provide for the issuance from time to time of senior debt securities (the
"Securities") to be issued in one or more series as the Indenture provides;
WHEREAS, pursuant to the First Supplemental Indenture dated as of June
9, 1997 (the "First Supplemental Indenture"), among the Company, the guarantors
party thereto (with the guarantors party to subsequent supplemental indentures,
the "Existing Guarantors") and the Trustee, the Company issued a series of
Securities designated as its 8 3/8% Senior Notes due 2004 in the aggregate
principal amount of up to $250,000,000 (the "Notes");
WHEREAS, pursuant to Section 4.05 of the Indenture, if the Company
organizes, acquires or otherwise invests in another Subsidiary which becomes a
Restricted Subsidiary, then such Subsidiary shall execute and deliver a
supplemental indenture pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes on
the terms set forth in the Indenture;
WHEREAS, in accordance with Section 4.05 of the Indenture, the Company
desires to cause certain newly organized or acquired Subsidiaries who are deemed
to be Restricted Subsidiaries according to the Indenture to be bound by those
terms applicable to a Guarantor under the Indenture (as it applies to the
Securities);
WHEREAS, pursuant to Section 9.05 of the Indenture, a Guarantor may
merge with or into another Restricted Subsidiary and, upon such merger, the
Guarantee given by such Guarantor shall no longer have any force or effect;
WHEREAS, in accordance with Section 9.05 of the Indenture, the Company
desires to cause certain Guarantors to merge with and into certain Restricted
Subsidiaries (the "Merged Guarantors"), whereupon the Guarantees given by such
Guarantors shall no longer have any force or effect;
WHEREAS, the execution of this Third Supplemental Indenture has been
duly authorized by the Boards of Directors of the Company and the Additional
Guarantors and all things necessary to make this Third Supplemental Indenture a
valid, binding and legal instrument according to its terms have been done and
performed;
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NOW THEREFORE, for and in consideration of the premises, the Company,
the Additional Guarantors and the Existing Guarantors covenant and agree with
the Trustee for the equal and ratable benefit of the respective holders of the
Securities as follows:
ARTICLE I.
ADDITIONAL GUARANTORS
1.1. In accordance with Section 4.05 of the Indenture, the following
Restricted Subsidiaries (the "Additional Guarantors") hereby unconditionally
guarantee all of the Company's obligations under the Securities of any Series
that has the benefit of Guarantees of other Subsidiaries of the Company and the
Indenture (as it relates to all such Series) on the terms set forth in the
Indenture, including without limitation, Article Nine thereof, and, in the case
of the Notes, Article One of the First Supplemental Indenture thereto and the
Guarantees affixed thereto:
Name Jurisdiction of Organization
---- ----------------------------
X.X. Xxxxxx, Inc. - Sacramento California
X.X. Xxxxxx - Sacramento California
Management Company, Inc.
C. Xxxxxxx Xxxxxx Builders, Inc. Virginia
Land Development, Inc. Virginia
1.2. The Trustee is hereby authorized to add the above-named Additional
Guarantors to the list of Guarantors on the Guarantees affixed to the Notes.
ARTICLE II.
MERGED GUARANTORS
2.1. In accordance with Section 9.05 of the Indenture, the Company and
the Trustee acknowledge that the Guarantees previously given by the following
Merged Guarantors no longer have any force or effect by reason of the merger of
the Merged Guarantors into the Restricted Subsidiaries as indicated below:
The following Merged Guarantors merged with and into X.X. Xxxxxx Los
Angeles Holding Company, Inc., a California corporation, a Restricted Subsidiary
and Guarantor:
Name Jurisdiction of Organization
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X.X. Xxxxxx Los Angeles No. 9, Inc. California
X.X. Xxxxxx Los Angeles No. 10, Inc. California
X.X. Xxxxxx Los Angeles No. 11, Inc. California
X.X. Xxxxxx Los Angeles No. 12, Inc. California
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Name Jurisdiction of Organization
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X.X. Xxxxxx Los Angeles No. 13, Inc. California
X.X. Xxxxxx Los Angeles No. 14, Inc. California
X.X. Xxxxxx Los Angeles No. 16, Inc. California
X.X. Xxxxxx Los Angeles No. 17, Inc. California
X.X. Xxxxxx Los Angeles No. 18, Inc. California
X.X. Xxxxxx Los Angeles No. 19, Inc. California
The following Merged Guarantors merged with and into X.X. Xxxxxx San
Diego Holding Company, Inc., a California corporation, a Restricted Subsidiary
and Guarantor:
Name Jurisdiction of Organization
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X.X. Xxxxxx San Diego No. 9, Inc. California
X.X. Xxxxxx San Diego No. 10, Inc. California
X.X. Xxxxxx San Diego No. 11, Inc. California
X.X. Xxxxxx San Diego No. 12, Inc. California
X.X. Xxxxxx San Diego No. 13, Inc. California
X.X. Xxxxxx San Diego No. 14, Inc. California
X.X. Xxxxxx San Diego No. 15, Inc. California
X.X. Xxxxxx San Diego No. 16, Inc. California
X.X. Xxxxxx San Diego No. 17, Inc. California
X.X. Xxxxxx San Diego No. 18, Inc. California
X.X. Xxxxxx San Diego No. 19, Inc. California
X.X. Xxxxxx San Diego No. 20, Inc. California
X.X. Xxxxxx San Diego No. 21, Inc. California
X.X. Xxxxxx San Diego No. 22, Inc. California
X.X. Xxxxxx San Diego No. 23, Inc. California
X.X. Xxxxxx San Diego No. 24, Inc. California
X.X. Xxxxxx San Diego No. 25, Inc. California
X.X. Xxxxxx San Diego No. 26, Inc. California
The following Merged Guarantors merged with and into X.X. Xxxxxx, Inc.
- Denver, a Delaware corporation, a Restricted Subsidiary and Guarantor:
Name Jurisdiction of Organization
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X.X. Xxxxxx Denver No. 10, Inc. Colorado
X.X. Xxxxxx Denver No. 11, Inc. Colorado
X.X. Xxxxxx Denver No. 12, Inc. Colorado
X.X. Xxxxxx Denver No. 13, Inc. Colorado
X.X. Xxxxxx Denver No. 14, Inc. Colorado
X.X. Xxxxxx Denver No. 15, Inc. Colorado
X.X. Xxxxxx Denver No. 16, Inc. Colorado
X.X. Xxxxxx Denver No. 17, Inc. Colorado
X.X. Xxxxxx Denver No. 18, Inc. Colorado
X.X. Xxxxxx Denver No. 19, Inc. Colorado
X.X. Xxxxxx Denver No. 20, Inc. Colorado
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Name Jurisdiction of Organization
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X.X. Xxxxxx Denver No. 21, Inc. Colorado
X.X. Xxxxxx Denver No. 22, Inc. Colorado
X.X. Xxxxxx Denver No. 23, Inc. Colorado
X.X. Xxxxxx Denver No. 24, Inc. Colorado
X.X. Xxxxxx Denver No. 25, Inc. Colorado
X.X. Xxxxxx Denver No. 26, Inc. Colorado
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1. This Third Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture, the First Supplemental Indenture, and the Second
Supplemental Indenture, dated as of September 30, 1997, by and among the
Company, the guarantors thereto and the Trustee, shall be read together and
shall have the effect so far as practicable as though all of the provisions
thereof and hereof are contained in one instrument.
3.2. The parties may sign any number of copies of this Third
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
3.3. In case any one or more of the provisions contained in this Third
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Third
Supplemental Indenture or of the Notes.
3.4. The article and section headings herein are for convenience only
and shall not affect the construction hereof.
3.5. Any capitalized term used in this Third Supplemental Indenture and
not defined herein that is defined in the Indenture shall have the meaning
specified in the Indenture, unless the context shall otherwise require.
3.6. All covenants and agreements in this Third Supplemental Indenture
by the Company and the Additional Guarantors shall bind each of their successors
and assigns, whether so expressed or not. All agreements of the Trustee in this
Third Supplemental Indenture shall bind its successors and assigns.
3.7. The laws of the State of New York shall govern this Third
Supplemental Indenture, the Securities of each Series and the Guarantees.
3.8. Except as amended by this Third Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
3.9. This Third Supplemental Indenture may not be used to interpret
another indenture, loan or debt agreement of the Company or a Subsidiary. Any
such indenture, loan or debt agreement may not be used to interpret this Third
Supplemental Indenture.
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3.10. All liability described in paragraph 12 of the Notes of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
3.11. The Trustee accepts the modifications of the trust effected by
this Third Supplemental Indenture, but only upon the terms and conditions set
forth in the Indenture. Without limiting the generality of the foregoing, the
Trustee assumes no responsibility for the correctness of the recitals herein
contained which shall be taken as the statements of the Company and the
Additional Guarantors, and the Trustee shall not be responsible or accountable
in any way whatsoever for or with respect to the validity or execution or
sufficiency of this Third Supplemental Indenture and the Trustee makes no
representation with respect thereto.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
X.X. XXXXXX, INC.
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Executive Vice President,
Chief Financial Officer and Treasurer
ADDITIONAL GUARANTORS:
X.X. Xxxxxx, Inc. - Sacramento
X.X. Xxxxxx - Sacramento Management
Company, Inc.
C. Xxxxxxx Xxxxxx Builders, Inc.
Land Development, Inc.
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
EXISTING GUARANTORS:
DRHI, Inc.
DRH Construction, Inc.
DRH New Mexico Construction, Inc.
X.X. Xxxxxx Denver Management Company,
Inc.
X.X. Xxxxxx, Inc. - Albuquerque
X.X. Xxxxxx, Inc. - Denver
X.X. Xxxxxx, Inc. - Minnesota
X.X. Xxxxxx, Inc. - New Jersey
Xxxxxxx I, Ltd.
Xxxxxxx II, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
X.X. Xxxxxx Los Angeles Holding Company,
Inc.
X.X. Xxxxxx Los Angeles Management
Company, Inc.
X.X. Xxxxxx, Inc. - Birmingham
X.X. Xxxxxx, Inc. - Greensboro
X.X. Xxxxxx San Diego Holding Company,
Inc.
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X.X. Xxxxxx San Diego Management
Company, Inc.
X.X. Xxxxxx, Inc. - Torrey
DRH Tucson Construction, Inc.
X.X. Xxxxxx Atlanta, Ltd.
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
X.X. Xxxxxx Management Company, Ltd.
By: Xxxxxxx I, Ltd.,
its general partner
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
X.X. Xxxxxx - Texas, Ltd.
By: Xxxxxxx I, Ltd.,
its general partner
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
SGS Communities at Grande Quay, LLC
By: Xxxxxxx IX, Inc., a member
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
and
By: Xxxxxxx X, Inc., a member
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
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AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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