Exhibit 4.4
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X.X. XXXXXX, INC. AND THE GUARANTORS PARTY HERETO
8 3/8% Senior Notes due 2004
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Second Supplemental Indenture
Dated as of September 30, 1997
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AMERICAN STOCK TRANSFER & TRUST COMPANY,
Trustee
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SECOND SUPPLEMENTAL INDENTURE dated as of September 30, 1997, and effective
as of the dates set forth in Article Two below (this "Supplemental Indenture"),
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"), each of the Guarantors and
AMERICAN STOCK TRANSFER AND TRUST COMPANY, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the holders of Notes (as defined herein):
WHEREAS, the Company, the Guarantors and the Trustee have duly authorized
the execution and delivery of the Indenture to provide that from time to time
newly organized Subsidiaries of the Company may become Restricted Subsidiaries
and Guarantors, and that the Company may redesignate an Unrestricted Subsidiary
to be a Restricted Subsidiary;
WHEREAS, the Company and the Guarantors desire and have requested the
Trustee to join them in the execution and delivery of this Supplemental
Indenture in order to designate additional Restricted Subsidiaries and
Guarantors of the Company's 8 3/8% Senior Notes due 2004 in the aggregate
principal amount of up to $250,000,000 (the "Notes");
WHEREAS, Sections 4.05 and 10.01(6) of the Indenture, and the definition of
"Unrestricted Subsidiary" in Article Two of the First Supplemental Indenture
dated as of June 9, 1997, provide that a supplemental indenture may be entered
into by the Company, the Guarantors and the Trustee for such purpose provided
certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement of the Company, the Guarantors and the Trustee, in accordance with its
terms, and a valid amendment of, and supplement to, the Indenture have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchase and acceptance of the
Notes by the holders thereof, the Company and the Guarantors mutually covenant
and agree with the Trustee, for the equal and ratable benefit of the holders,
that the Indenture is supplemented and amended, to the extent expressed herein,
as follows:
ARTICLE ONE
Scope of Supplemental Indenture; General
The changes, modifications and supplements to the Indenture effected by this
Supplemental Indenture shall be applicable only with respect to, and govern the
terms of, the Notes, and shall not apply to any other Securities that may be
issued under the Indenture unless a supplemental indenture with respect to such
other Securities specifically incorporates such changes, modifications and
supplements. Except as amended hereby, the Indenture and the Notes are in all
respects ratified and confirmed and all of their terms shall remain in full
force and effect.
The recitals of fact contained herein shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
them. The Trustee makes no representations as to the validity or adequacy of
this Supplemental Indenture or to its due execution by the Company.
Capitalized terms used but not defined herein have the meanings ascribed to
such terms in the Indenture. The laws of the State of New York shall govern this
Supplemental Indenture, the Notes and the Guarantees.
ARTICLE TWO
Addition and Removal of Guarantors
Section 2.01 Additional Guarantors.
Effective as of July 1, 1997, SGS Communities at West Windsor, LLC, a New
Jersey limited liability company, and, effective as of September 30, 1997, X.X.
Xxxxxx San Diego No. 22, Inc., a California corporation, X.X. Xxxxxx San Diego
No. 23, Inc., a California corporation, X.X. Xxxxxx San Diego No. 24, Inc., a
California corporation, X.X. Xxxxxx San Diego No. 25, Inc., a California
corporation, X.X. Xxxxxx San Diego No. 26, Inc., a California corporation, X.X.
Xxxxxx Denver No. 19, Inc., a Colorado corporation, X.X. Xxxxxx Denver No. 20,
Inc., a Colorado corporation, X.X. Xxxxxx Denver No. 21, Inc., a Colorado
corporation, X.X. Xxxxxx Denver No. 22, Inc., a Colorado corporation, X.X.
Xxxxxx Denver No. 23, Inc., a Colorado corporation, X.X. Xxxxxx Denver No. 24,
Inc., a Colorado corporation, X.X. Xxxxxx Denver No. 25, Inc., a Colorado
corporation, X.X. Xxxxxx Denver No. 26, Inc., a Colorado corporation, X.X.
Xxxxxx Los Angeles No. 18, Inc., a California corporation, X.X. Xxxxxx Los
Angeles No. 19, Inc., a California corporation, and DRH Tucson Construction,
Inc., a Delaware corporation (collectively, the "Additional Guarantors"), shall
become parties to the Indenture as Guarantors, guarantee the Notes and become
Restricted Subsidiaries. Accordingly, each of the Additional Guarantors hereby
agrees to be bound by, and expressly assumes as a Guarantor, the Indenture,
particularly Article Nine thereof, and the Guarantee noted on the Notes. In
furtherance of Section 4.05 of the Indenture, but not in limitation thereof,
each of the Additional Guarantors unconditionally guarantees, on a joint and
several basis with all other Guarantors, all of the Company's obligations under
the Notes and the Indenture (as it relates to the Notes), all in accordance with
the terms set forth in Article Nine of the Indenture and the Guarantee noted on
the Notes. Each of the Additional Guarantors hereby authorizes endorsement of
such guarantee on the Notes ordered to be authenticated and delivered by
Trustee, as contemplated by Exhibit A to the Indenture. The Company, the Trustee
and the other Guarantors acknowledge the addition of the Additional Guarantors
as Guarantors and Restricted Subsidiaries.
Section 2.02 Removal of Guarantors.
The Company, the Trustee and the other Guarantors acknowledge that,
effective as of July 31, 1997, Xxxxxxx III, Ltd. and X.X. Xxxxxx - Royalty, Ltd.
are no longer parties to the Indenture and therefore are no longer Restricted
Subsidiaries or Guarantors, by reason of the (i) liquidation of X.X. Xxxxxx -
Royalty, Ltd. and distribution of its assets to other Restricted Subsidiaries
and Guarantors and (ii) the merger of Xxxxxxx III, Ltd. into Xxxxxxx II, Ltd.,
which is a Restricted Subsidiary and Guarantor.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed, as of the effective dates above written.
X.X. Xxxxxx, Inc.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
GUARANTORS:
DRHI, Inc.
DRH Construction, Inc.
DRH New Mexico Construction, Inc.
DRH Tucson Construction, Inc.
X.X. Xxxxxx Denver Management
Company, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver No. 12, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver Xx. 00, Xxx.
X.X. Xxxxxx Xxxxxx Xx. 00, Inc.
X.X. Xxxxxx Denver No. 25, Inc.
X.X. Xxxxxx Denver No. 26, 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 III, 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 Los Angeles No. 9, Inc.
X.X. Xxxxxx Los Angeles No. 10, Inc.
X.X. Xxxxxx Los Angeles No. 11, Inc.
X.X. Xxxxxx Los Angeles No. 12, Inc.
X.X. Xxxxxx Los Angeles No. 13, Inc.
X.X. Xxxxxx Los Angeles No. 14, Inc.
X.X. Xxxxxx Los Angeles No. 16, Inc.
X.X. Xxxxxx Los Angeles No. 17, Inc.
X.X. Xxxxxx Los Angeles No. 18, Inc.
X.X. Xxxxxx Los Angeles No. 19, Inc.
X.X. Xxxxxx, Inc. - Birmingham
X.X. Xxxxxx, Inc. - Greensboro
X.X. Xxxxxx San Diego Holding
Company, Inc.
X.X. Xxxxxx San Diego Management
Company, Inc.
X.X. Xxxxxx San Diego Xx. 0, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego Xx. 00, Xxx.
X.X. Xxxxxx Xxx Xxxxx Xx. 00, Inc.
X.X. Xxxxxx San Diego No. 25, Inc.
X.X. Xxxxxx San Diego No. 26, Inc.
X.X. Xxxxxx, Inc. - Torrey
X.X. Xxxxxx Atlanta, Ltd.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
SGS COMMUNITIES AT GRANDE QUAY, LLC
By: Xxxxxxx IX, Inc., a member
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
and
By: Xxxxxxx X, Inc., a member
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
SGS COMMUNITIES AT WEST WINDSOR, LLC
By: Xxxxxxx IX, Inc., a member
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
and
By: X.X. Xxxxxx, Inc.- New Jersey, a member
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
X.X. XXXXXX MANAGEMENT COMPANY, LTD.
X.X. XXXXXX - TEXAS, LTD.
X.X. XXXXXX - ROYALTY, LTD.
By: Xxxxxxx I, Ltd.,
its general partner
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Treasurer
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Trustee
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
