EXHIBIT 1.09
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 27, 2000
among
XXXXXXX HOMES, INC.,
THE GUARANTORS PARTY HERETO
and
U.S. TRUST COMPANY, NATIONAL ASSOCIATION
AS TRUSTEE
Supplementing the Indenture
Dated as of May 6, 1998
THIRD SUPPLEMENTAL INDENTURE, dated as of July 27, 2000 (the
"Third Supplemental Indenture"), by and among Xxxxxxx Homes, Inc., a Delaware
corporation (the "Company"), the Guarantors signatory hereto and U.S. Trust
Company, National Association, as trustee (the "Trustee").
WHEREAS, the Company and the Guarantors signatory thereto
executed and delivered the Indenture dated as of May 6, 1998, as supplemented by
the First Supplemental Indenture, dated as of February 26, 1999, and the Second
Supplemental Indenture, dated as of July 15, 1999 (the "Indenture"), to the
Trustee to provide for the issuance of the Company's 9% Senior Notes Due 2008
(the "Securities").
WHEREAS, the Company has three Subsidiaries, Xxxxxxx Homes of
Arizona LLC, a Delaware limited liability company, SHLR of California, Inc., a
California corporation, and Xxxxxxx Mortgage, Inc., a Delaware corporation, each
of which is a Restricted Subsidiary.
WHEREAS, the Company desires that pursuant to Section 4.18 and
Article 10 of the Indenture, Xxxxxxx Homes of Arizona LLC, SHLR of California,
Inc. and Xxxxxxx Mortgage, Inc. shall become Guarantors under the Indenture.
WHEREAS, all necessary actions to make this Third Supplemental
Indenture a valid agreement of the Company, the Guarantors and the Trustee in
accordance with its terms and a valid supplement to the Indenture, have been
completed.
WHEREAS, the Company and the Guarantors, with the consent of
the Trustee, may supplement the Indenture to reflect additional Guarantors
without notice to or the consent of any Holder.
NOW THEREFORE, for and in consideration of the premises and
mutual covenants herein contained, each party hereto agrees as follows for the
benefit of the holders of the Securities:
Article 1.
DEFINITIONS
Section 1.01. DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) capitalized terms used herein that are not otherwise
defined herein shall have the meaning assigned to such terms in the Indenture;
(b) references to Sections or Articles mean references to such
Section or Article in the Indenture, unless stated otherwise; and
(c) rules of construction applicable pursuant to the Indenture
are also applicable herein.
Article 2.
ADDITIONAL GUARANTORS
Section 2.01. ADDITIONAL GUARANTORS.
Xxxxxxx Homes of Arizona LLC, SHLR of California, Inc. and
Xxxxxxx Mortgage, Inc. each hereby agrees to become a Guarantor under the
Indenture.
Article 3.
MISCELLANEOUS
Section 3.01. AUTHORIZATION.
The execution, delivery and performance by the Company and the
Guarantors of this Third Supplemental Indenture have been duly authorized by all
necessary action of the Company and each such Guarantor.
Section 3.02. RATIFICATION OF INDENTURE.
The Indenture, as supplemented by this Third Supplemental
Indenture, is in all respects ratified and confirmed, and this Third
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided and every holder of Securities
heretofore or hereafter authenticated and delivered under the Indenture shall
benefit and be bound hereby.
Section 3.03. GOVERNING LAW.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 3.04. SEVERABILITY.
In case any one or more of the provisions in this Third
Supplemental Indenture 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 3.05. COUNTERPARTS.
This Third Supplemental Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
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Section 3.06. EFFECTIVENESS.
This Third Supplemental Indenture shall be effective and
binding when executed by the Company, the Guarantors and the Trustee.
Section 3.07. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and the
Guarantors and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof and shall incur no liability for any incorrectness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Third Supplemental Indenture.
Section 3.08. PERFORMANCE OF TRUSTEE.
The Trustee, for itself and its successors, accepts the Trust
of the Indenture as amended by this Third Supplemental Indenture and agrees to
perform this Third Supplemental Indenture and the Indenture, but only upon the
terms and conditions set forth herein and therein, including the terms and
provisions in the Indenture defining and limiting the liability and
responsibility of the Trustee.
Section 3.09. COMPENSATION.
The Company shall promptly reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred by it in administering and
executing this Third Supplemental Indenture. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date first written
above.
XXXXXXX HOMES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: VP Finance
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XXXXXXX HOMES OF CALIFORNIA, INC.
XXXXXXX HOMES OF OREGON, INC.
XXXXXXX HOMES OF WASHINGTON, INC.
MELODY HOMES, INC.
MELODY MORTGAGE CO.
XXXXXXX REALTY/MAUI, INC.
XXXXXXX REALTY/OAHU, INC.
LOKELANI CONSTRUCTION CORPORATION
SHLR OF WASHINGTON, INC.
SHLR OF COLORADO, INC.
SSHI LLC
SHLR OF NEVADA, INC.
SRHI LLC
XXXXXXX HOMES OF ARIZONA LLC
SHLR OF CALIFORNIA, INC.
XXXXXXX MORTGAGE, INC.,
as Guarantors
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: VP Finance
----------------------------------------
U.S. TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
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Title: Asst. Vice President
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