Contract

Exhibit 4.3

This FOURTH SUPPLEMENTAL INDENTURE (this “Fourth Supplemental Indenture”), dated as of February 2, 2021, between The Xxxxxx Xxxxxx Corporation, a Delaware corporation (the “Company”), HHC Warehouse Holding Company, LLC, a Delaware limited liability company (“Warehouse Holding”), HH Warehouse Land Holdings, LLC, a Delaware limited liability company (“Warehouse Land”), HH Woodlands Tower Holdings, LLC, a Delaware limited liability company (“Woodlands Tower”) and API/HHC Lake Xxxxxxx Holding Company, LLC, a Delaware limited liability company (“Lake Xxxxxxx,” and each of Warehouse Holding, Warehouse Land, Woodlands Tower and Lake Xxxxxxx, a “Guarantor” and, collectively, the “Guarantors”), as guarantors, and Xxxxx Fargo Bank, National Association, as trustee under the Indenture referred to below (the “Trustee”). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Indenture.

W I T N E S S E T H:

WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture, dated as of March 16, 2017, as supplemented by a first supplemental indenture thereto, dated as of June 15, 2017, further supplemented by a second supplemental indenture thereto, dated as of August 18, 2020, and further supplemented by a third supplemental indenture thereto, dated as of October 2, 2020 (together, the “Indenture”), which provides for the issuance of $1,000,000,000 in the aggregate principal amount of 5.375% Senior Notes due 2025 (the “Notes”);

WHEREAS, the Company has offered to purchase for cash any and all outstanding Notes (the “Tender Offer”) pursuant to an Offer to Purchase and Consent Solicitation Statement dated January 19, 2021;

WHEREAS, pursuant to the Tender Offer, the Company also has requested that Holders of the Notes deliver their consents (the “Consents”) with respect to certain amendments to the Indenture;

WHEREAS, Section 9.02 of the Indenture provides that the Company and the Trustee may amend or supplement the Indenture and the Notes with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (other than Notes owned by the Company or by any Affiliate of the Company) (the “Outstanding Notes”) voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes);

WHEREAS, the Holders of a majority of the aggregate principal amount of Outstanding Notes have duly consented to the proposed amendments set forth in this Fourth Supplemental Indenture in accordance with Section 9.02 of the Indenture;

WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) a copy of resolutions of the Board of Directors of the Company authorizing the execution of this Fourth Supplemental Indenture, (ii) evidence of the consent of the Holders set forth in the immediately preceding paragraph and (iii) the Officer’s Certificate and the Opinion of Counsel described in Section 12.03 of the Indenture; and

WHEREAS, all conditions necessary to authorize the execution and delivery of this Fourth Supplemental Indenture and to make this Fourth Supplemental Indenture valid and binding have been complied with or have been done or performed.

NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the Indenture which, absent this Fourth Supplemental Indenture, might operate to limit such action, the parties hereto, intending to be legally bound hereby, agree as follows.

ARTICLE I

AMENDMENTS

Section 1.01 Amendments. Subject to Section 2.01 hereof, the Indenture is hereby amended by:

(a) deleting the following provisions and all references thereto (including in the Table of Contents) in their entirety:

	·	Section 4.03. Reports
	·	Section 4.06 Payment of Taxes
	·	Section 4.08 Restricted Payments
	·	Section 4.09 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	·	Section 4.10 Incurrence of Indebtedness and Issuance of Preferred Stock
	·	Section 4.11 Asset Sales
	·	Section 4.12 Transactions with Affiliates
	·	Section 4.13 Liens
	·	Section 4.14 Permitted Business Activities
	·	Section 4.16 Future Guarantors
	·	Section 4.17 Designation of Restricted and Unrestricted Subsidiaries
	·	Clause (4) of Section 5.01(a)
	·	Clauses (5) and (6) of Section 6.01(a)

(b) replacing the references in Section 3.02(a) and Section 3.03(a) to “30 days” with “two Business Days”; and

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(c) replacing the references in Section 3.01 and Section 3.03(c) to “10 Business Days” with “two Business Days”.

Effective as of the date hereof, none of the Company, the Trustee or other parties to or beneficiaries of the Indenture shall have any rights, obligations or liabilities under such Sections or clauses and such deleted Sections or clauses shall not be considered in determining whether a Default or Event of Default has occurred or whether the Company has observed, performed or complied with the provisions of the Indenture.

Section 1.02 Amendment of Definitions. Subject to Section 2.01 hereof, the Indenture is hereby amended by deleting any definitions from the Indenture with respect to which references would be eliminated as a result of the amendments of the Indenture pursuant to Section 1.01 hereof.

ARTICLE II

MISCELLANEOUS

Section 2.01 Effect of the Fourth Supplemental Indenture. Except as amended hereby, all of the terms of the Indenture shall remain and continue in full force and effect and are hereby confirmed in all respects. From and after the date of this Fourth Supplemental Indenture, all references to the Indenture (whether in the Indenture or in any other agreements, documents or instruments) shall be deemed to be references to the Indenture as amended and supplemented by this Fourth Supplemental Indenture. This Fourth Supplemental Indenture shall become operative at such time as, and only if, the Company accepts for payment, pursuant to the Tender Offer, Consents of the Holders of a majority in aggregate principal amount of the Outstanding Notes.

Section 2.02 Trustee’s Acceptance. The Trustee hereby accepts this Fourth Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.

Section 2.03 GOVERNING LAW. THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 2.04 Counterparts. The parties may sign any number of copies of this Fourth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Fourth Supplemental Indenture and of signature pages by facsimile or .pdf transmission shall constitute effective execution and delivery of this Fourth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or .PDF shall be deemed to be their original signatures for all purposes.

Section 2.05 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

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Section 2.06 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company. The Trustee does not have any liability or responsibility for any amendment set forth herein, the effect thereof or for evaluating such amendment or effect and any indemnity or protection afforded the Trustee under the indenture shall apply to this Fourth Supplemental Indenture.

[signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed, all as of the date hereof.

	THE XXXXXX XXXXXX CORPORATION
	By:	/s/ Xxxxx X. Xxxxx
		Name: Xxxxx X. Xxxxx
		Title: Senior Executive Vice President, Secretary and General Counsel

	XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Xxxxx Xxxxxx
		Name: Xxxxx Xxxxxx
		Title: Vice President

	HH WOODLANDS TOWER HOLDINGS, LLC
	By:	/s/ Xxxxx X. Xxxxx
		Name: Xxxxx X. Xxxxx
		Title: Secretary

	API/HHC LAKE XXXXXXX HOLDING COMPANY, LLC
	By:	/s/ Xxxxx X. Xxxxx
		Name: Xxxxx X. Xxxxx
		Title: Secretary

	HHC WAREHOUSE HOLDING COMPANY, LLC
	By:	/s/ Xxxxx X. Xxxxx
		Name: Xxxxx X. Xxxxx
		Title: Secretary

	HH WAREHOUSE LAND HOLDINGS, LLC
	By:	/s/ Xxxxx X. Xxxxx
		Name: Xxxxx X. Xxxxx
		Title: Secretary