EXHIBIT 4.2
THIRD SUPPLEMENTAL INDENTURE, dated as of May 21, 2001, and effective as
of March 31, 2001, to the Indenture, dated as of September 11, 2000 (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 subordinated 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
September 11, 2000 (the "First Supplemental Indenture"), among the Company, the
guarantors party thereto (the "Existing Guarantors") and the Trustee, the
Company issued a series of Securities designated as its 9.75% Senior
Subordinated Notes due 2010 in the aggregate principal amount of up to
$200,000,000 (the "9.75% Notes");
WHEREAS, pursuant to the Second Supplemental Indenture dated as of March
12, 2001 (the "Second Supplemental Indenture"), among the Company, the Existing
Guarantors, and the Trustee, the Company issued a series of Securities
designated as its 9.375% Senior Subordinated Notes due 2011 in the aggregate
principal amount of up to $200,000,000 (the "9.375% Notes");
WHEREAS, pursuant to Section 4.05 of the Indenture, any Restricted
Subsidiary that the Company organizes, acquires or otherwise invests in, and any
Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary, is
required to guarantee the 9.75% Notes and the 9.375% Notes for all purposes
under the Indenture;
WHEREAS, pursuant to Section 4.05 of the Indenture, in order for such
Restricted Subsidiaries to be bound by those terms applicable to a Guarantor
under the Indenture, such Restricted Subsidiaries (the "Additional Guarantors")
must execute and deliver a supplemental indenture pursuant to which such
Additional Guarantors shall unconditionally guarantee all of the Company's
obligations under the 9.75% Notes and the 9.375% Notes on the terms set forth in
the Indenture;
WHEREAS, the execution of this Third Supplemental Indenture has been
duly authorized by the Executive Committee of the Board of Directors of the
Company and the Boards of Directors or other governing bodies of 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;
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
9.75% Notes and the 9.375% Notes as follows:
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ARTICLE I
ADDITIONAL GUARANTORS
1.1 As of March 31, 2001, and in accordance with Section 4.05 of the Indenture,
the following Additional Guarantors hereby unconditionally guarantee all of the
Company's obligations under the 9.75% Notes and the 9.375% Notes on the terms
set forth in the Indenture, as it relates to the 9.75% Notes and the 9.375%
Notes, including Article Nine thereof:
Jurisdiction
Name of Organization
---- ---------------
DRH Cambridge Homes, LLC Delaware
DRH Southwest Construction, Inc. California
DRH Title Company of Colorado, Inc. Colorado
Xxxxxxx VIII, Ltd. Delaware
DRH Regrem I, Inc. Delaware
DRH Regrem II, Inc. Delaware
DRH Regrem III, Inc. Delaware
DRH Regrem IV, Inc. Delaware
DRH Regrem V, Inc. Delaware
DRH Regrem VI, LP Texas
DRH Regrem VII, LP Texas
DRH Regrem VIII, LLC Delaware
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 9.75%
Notes and the 9.375% Notes.
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ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 This Third Supplemental Indenture constitutes a supplement to the Indenture.
The Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture, and this Third Supplemental Indenture, 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.
2.2 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.
2.3 In case any one or more of the provisions contained in this Third
Supplemental Indenture, the 9.75% Notes or the 9.375% 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 in this
Third Supplemental Indenture, the 9.75% Notes or the 9.375% Notes.
2.4 The article and section headings herein are for convenience only and shall
not affect the construction hereof.
2.5 Any capitalized term used in this Third 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.
2.6 All covenants and agreements in this Third 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 Third Supplemental Indenture shall bind its successors and
assigns.
2.7 The laws of the State of New York shall govern this Third Supplemental
Indenture, the Securities of each Series and the Guarantees.
2.8 Except as amended by this Third Supplemental Indenture, the terms and
provisions of the Indenture shall remain in full force and effect.
2.9 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.
2.10 All liability described in paragraph 12 of the 9.75% Notes or paragraph 12
of the 9.375% Notes, of any director, officer, employee or stockholder, as such,
of the Company is waived and released.
2.11 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, as of the 21st day of May, 2001.
X.X. XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Executive Vice President,
Chief Financial Officer, and
Treasurer
ADDITIONAL GUARANTORS:
----------------------
DRH Southwest Construction, Inc.
DRH Title Company of Colorado, Inc.
Xxxxxxx VIII, Ltd.
DRH Regrem I, Inc.
DRH Regrem II, Inc.
DRH Regrem III, Inc.
DRH Regrem IV, Inc.
DRH Regrem V, Inc
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Treasurer
DRH Regrem VIII, LLC, and
DRH Cambridge Homes, LLC
By: X.X. Xxxxxx, Inc. - Chicago,
a member
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Treasurer
DRH Regrem VI, LP
DRH Regrem VII, LP
By: Xxxxxxx I, Ltd., the general
partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Treasurer
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EXISTING GUARANTORS:
--------------------
DRHI, Inc.
Xxxxxxx I, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
X.X. Xxxxxx, Inc. - Birmingham
X.X. Xxxxxx, Inc. - Chicago
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. - Jacksonville
(formerly X.X. Xxxxxx, Inc. -
San Diego)
X.X. Xxxxxx, Inc. - Torrey
X.X. Xxxxxx San Diego Holding
Company, Inc.
X.X. Xxxxxx Los Angeles Holding
Company, Inc.
DRH Construction, Inc.
DRH Cambridge Homes, Inc.
C. Xxxxxxx Xxxxxx Builders, Inc.
DRH Tucson Construction, Inc.
Continental Homes, Inc.
KDB Homes, Inc.
Continental Residential, Inc.
Continental Homes of Florida, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Treasurer
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SGS COMMUNITIES AT GRANDE QUAY, LLC
By: Xxxxxxx IX, Inc., a member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Treasurer
and
By: Xxxxxxx X, Inc., a member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx 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
---------------------------------
Xxxxxx X. Xxxxxx
Treasurer
CONTINENTAL HOMES OF TEXAS, L.P.
By: CHTEX of Texas, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Treasurer
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XXXXXXX II, LTD.
CH INVESTMENTS OF TEXAS, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Xxxxxxx Xxxx
President
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AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
-------------------------
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