EXHIBIT 4.9
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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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SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 31, 1999
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8 3/8% SENIOR NOTES
DUE 2004
AND
8% SENIOR NOTES
DUE 2009
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SEVENTH SUPPLEMENTAL INDENTURE, dated as of August 31, 1999, and effective
as of the dates set forth in Articles I and II below, 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 the Sixth Supplemental Indenture dated as of February
4, 1999 (the "Sixth Supplemental Indenture"), among the Company, the Existing
Guarantors and the Trustee, the Company issued a series of Securities designated
as its 8% Senior Notes due 2009 in the aggregate principal amount of up to
$400,000,000 (the "8% 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, acquired or otherwise invested in
Subsidiaries, which 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, or dissolve into, the Company or another Restricted Subsidiary
and, upon such merger or dissolution, the Guarantee given by such Guarantor
shall no longer have any force or effect;
SEVENTH SUPPLEMENTAL INDENTURE Page 1
WHEREAS, in accordance with Section 9.05 of the Indenture, the Company has
caused certain Guarantors (the "Merged Guarantors") to merge with and into, or
have all their property conveyed to, the Company or certain Restricted
Subsidiaries, whereupon the Guarantees given by such Merged Guarantors shall no
longer have any force or effect;
WHEREAS, the execution of this Seventh 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 Seventh Supplemental Indenture
a valid, binding and legal instrument according to its terms have been done and
performed;
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. As of the respective effective dates stated below, and 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 and,
in the case of the 8% Notes, Article One of the Sixth Supplemental Indenture
thereto and the Guarantees affixed thereto:
JURISDICTION OF
NAME ORGANIZATION EFFECTIVE DATE
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Astante Luxury Communities, Inc. Delaware June 10, 1999
X.X. Xxxxxx, Inc. - Chicago Delaware March 31, 1999
X.X. Xxxxxx, Inc. - San Diego Delaware March 31, 1999
DRH Cambridge Homes, LLC Delaware July 1, 1999
DRH Land Company, Inc. California July 1, 1999
DRH Title Company of Colorado, Inc. Colorado July 1, 1999
Xxxxxxx VIII, Ltd. Delaware July 1, 1999
SEVENTH SUPPLEMENTAL INDENTURE Page 2
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 and
the 8% 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 Company or the Restricted Subsidiaries as indicated
below:
(a) X.X. Xxxxxx Denver Management Company, Inc. merged into X.X.
Xxxxxx, Inc. - Denver, as of January 4, 1999.
(b) Magnolia Homes Builders, Inc. merged into X.X. Xxxxxx, Inc. as of
April 6, 1999.
(c) X.X. Xxxxxx Atlanta, Ltd. merged into X.X. Xxxxxx, Inc. - Torrey
as of April 7, 1999.
(d) Continental Ranch, Inc. merged into L&W Investments, Inc., by
Agreements of Merger signed July 21, 1999 and effective as of
July 31, 1999 in Delaware and September 2, 1999 in California,
and the name of L&W Investments, Inc. was changed to Continental
Residential, Inc.
(e) X.X. Xxxxxx Los Angeles Management Company, Inc. merged into X.X.
Xxxxxx Los Angeles Holding Company, Inc., as of August 5, 1999.
(f) X.X. Xxxxxx San Diego Management Company, Inc. merged into X.X.
Xxxxxx San Diego Holding Company, Inc., as of August 5, 1999.
(g) Land Development, Inc. merged into C. Xxxxxxx Xxxxxx Builders,
Inc. by Articles of Merger signed August 30, 1999, filed with the
Virginia State Corporation Commission August 31, 1999, and
effective on September 1, 1999.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1 This Seventh Supplemental Indenture constitutes a supplement to the
Indenture. The Indenture, the First Supplement Indenture, the Second
Supplemental Indenture, dated as of September 30, 1997, the Third Supplemental
Indenture, dated as of April 17, 1998, the Fourth Supplemental Indenture, dated
as of April 20, 1998, the Fifth Supplemental Indenture, dated as of August 31,
1998, the Sixth Supplemental Indenture and this Seventh Supplemental Indenture,
by and
SEVENTH SUPPLEMENTAL INDENTURE Page 3
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 Seventh 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 Seventh
Supplemental Indenture, the Notes, or the 8% 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
Seventh Supplemental Indenture, the Notes or the 8% 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 Seventh Supplemental Indenture that
is defined in the Indenture and not defined herein shall have the meaning
specified in the Indenture, unless the context shall otherwise require.
3.6 All covenants and agreements in this Seventh Supplemental Indenture by
the Company, the Existing Guarantors and the Additional Guarantors shall bind
each of their successors and assigns, whether so expressed or not. All
agreements of the Trustee in this Seventh Supplemental Indenture shall bind its
successors and assigns.
3.7 The laws of the State of New York shall govern this Seventh
Supplemental Indenture, the Securities of each Series and the Guarantees.
3.8 Except as amended by this Seventh Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
3.9 This Seventh 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 Seventh
Supplemental Indenture.
3.10 All liability described in paragraph 12 of the Notes, or paragraph 12
of the 8% 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
Seventh 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 Seventh Supplemental Indenture, and the Trustee makes no representation
with respect thereto.
SEVENTH SUPPLEMENTAL INDENTURE Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
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:
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Astante Luxury Communities, Inc.
X.X. Xxxxxx, Inc. - Chicago
X.X. Xxxxxx, Inc. - San Diego
DRH Land Company, Inc.
DRH Title Company of Colorado, Inc.
Xxxxxxx VIII, Ltd.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
DRH Cambridge Homes, LLC
By X.X. Xxxxxx, Inc. - Chicago, a member
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
SEVENTH SUPPLEMENTAL INDENTURE Page 5
EXISTING GUARANTORS
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C. Xxxxxxx Xxxxxx Builders, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
Continental Homes, Inc.
Continental Homes of Florida, Inc.
Continental Residential, Inc. (formerly L&W
Investments, Inc.)
X.X. Xxxxxx, Inc. - Birmingham
X.X. Xxxxxx, Inc. - Denver
X.X. Xxxxxx, Inc. - Greensboro
X.X. Xxxxxx, Inc. - Louisville
X.X. Xxxxxx, Inc. - Minnesota
X.X. Xxxxxx, Inc. - New Jersey
X.X. Xxxxxx, Inc. - Portland
X.X. Xxxxxx, Inc. - Sacramento
X.X. Xxxxxx, Inc. - Torrey
X.X. Xxxxxx Los Angeles Holding Company, Inc.
X.X. Xxxxxx San Diego Holding Company, Inc.
DRH Cambridge Homes, Inc.
DRH Construction, Inc.
DRH Tucson Construction, Inc.
DRHI, Inc.
KDB Homes, Inc.
Xxxxxxx I, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
CH Investments of Texas, Inc.
Xxxxxxx II, Ltd.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President
SEVENTH SUPPLEMENTAL INDENTURE Page 6
Continental Homes of Texas, L.P.
By CHTEX of Texas, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Treasurer
X.X. Xxxxxx Management Company, Ltd.
X.X. Xxxxxx - Texas, Ltd.
By Xxxxxxx I, Ltd., its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman of the Board
SGS Communities at Grande Quay, LLC
By Xxxxxxx IX, Inc., a member
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman of the Board
and
By Xxxxxxx X, Inc., a member
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman of the Board
SEVENTH SUPPLEMENTAL INDENTURE Page 7
MERGED GUARANTORS IN EXISTENCE AS OF
AUGUST 31, 1999
Continental Ranch, Inc.
Land Development, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chairman of the Board
SEVENTH SUPPLEMENTAL INDENTURE Page 8
AMERICAN STOCK TRANSFER & TRUST
COMPANY, AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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SEVENTH SUPPLEMENTAL INDENTURE Page 9
