EXHIBIT 4.5
TWELFTH SUPPLEMENTAL INDENTURE, dated as of May 21, 2001, and effective
as of March 31, 2001, 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 ▇.▇. ▇▇▇▇▇▇, 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 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 $250,000,000 (the "8 3/8% Notes"); pursuant to the Sixth Supplemental
Indenture, dated as of February 4, 1999 (the "Sixth Supplemental Indenture")
among the Company, the guarantors party thereto 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"); pursuant to
the Eighth Supplemental Indenture, dated as of March 21, 2000 (the "Eighth
Supplemental Indenture") and the Tenth Supplemental Indenture, dated as of June
5, 2000 (the "Tenth Supplemental Indenture"), among the Company, the guarantors
party thereto and the Trustee, the Company issued a series of Securities
designated as its 10 1/2% Senior Notes due 2005 in the aggregate principal
amount of $200,000,000 (the "10 1/2% Notes) (and, together with the 8 3/8% Notes
and the 8% Notes, the "Notes"), and pursuant to the Eleventh Supplemental
Indenture dated as of May 11, 2001 (the "Eleventh 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 Zero
Coupon Convertible Senior Notes due 2021 in the aggregate principal amount at
maturity of $381,113,000;
WHEREAS, pursuant to Section 4.05 of the Indenture, any Restricted
Subsidiary that the Company organizes, acquires or otherwise invests in, or any
Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary, is
required to guarantee the 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 Notes on the terms set forth in the Indenture;
WHEREAS, the execution of this Twelfth 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 Twelfth 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
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 Notes and the Indenture, as it relates to the
Notes, on the terms set forth in the Indenture, 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
▇▇▇▇▇▇▇ 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 Notes.
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ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 This Twelfth Supplemental Indenture constitutes a supplement to the
Indenture. The Indenture and this Twelfth 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 Twelfth 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 Twelfth
Supplemental Indenture or the 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 Twelfth
Supplemental Indenture or the 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 Twelfth 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 Twelfth 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 Twelfth Supplemental Indenture shall bind its successors and
assigns.
2.7 The laws of the State of New York shall govern this Twelfth Supplemental
Indenture, the Notes and the Guarantees.
2.8 Except as amended by this Twelfth Supplemental Indenture, the terms and
provisions of the Indenture shall remain in full force and effect.
2.9 This Twelfth 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 Twelfth
Supplemental Indenture.
2.10 All liability described in paragraph 12 of the 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 Twelfth
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 Twelfth
Supplemental Indenture, and the Trustee makes no representation with respect
thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
Supplemental Indenture to be duly executed, as of the 21st day of May, 2001.
▇.▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer, and
Treasurer
ADDITIONAL GUARANTORS:
----------------------
DRH Southwest Construction, Inc.
DRH Title Company of Colorado, Inc.
▇▇▇▇▇▇▇ VIII, Ltd.
DRH Regrem I, Inc.
DRH Regrem II, Inc.
DRH Regrem III, Inc.
DRH Regrem IV, Inc.
DRH Regrem V, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
DRH Regrem VIII, LLC
DRH Cambridge Homes, LLC
By: ▇.▇. ▇▇▇▇▇▇, Inc. - Chicago,
a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
DRH Regrem VI, LP
DRH Regrem VII, LP
By: ▇▇▇▇▇▇▇ I, Ltd., the general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
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EXISTING GUARANTORS:
--------------------
DRHI, Inc.
▇▇▇▇▇▇▇ I, Ltd.
▇▇▇▇▇▇▇ IX, Inc.
▇▇▇▇▇▇▇ X, Inc.
▇.▇. ▇▇▇▇▇▇, Inc. - Birmingham
▇.▇. ▇▇▇▇▇▇, Inc. - Chicago
▇.▇. ▇▇▇▇▇▇, Inc. - Denver
▇.▇. ▇▇▇▇▇▇, Inc. - Greensboro
▇.▇. ▇▇▇▇▇▇, Inc. - Louisville
▇.▇. ▇▇▇▇▇▇, Inc. - Minnesota
▇.▇. ▇▇▇▇▇▇, Inc. - New Jersey
▇.▇. ▇▇▇▇▇▇, Inc. - Portland
▇.▇. ▇▇▇▇▇▇, Inc. - Sacramento
▇.▇. ▇▇▇▇▇▇, Inc. - Jacksonville
(formerly ▇.▇. ▇▇▇▇▇▇, Inc. -
San Diego)
▇.▇. ▇▇▇▇▇▇, Inc. - Torrey
▇.▇. ▇▇▇▇▇▇ San Diego Holding
Company, Inc.
▇.▇. ▇▇▇▇▇▇ Los Angeles Holding
Company, Inc.
DRH Construction, Inc.
DRH Cambridge Homes, Inc.
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
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SGS COMMUNITIES AT GRANDE QUAY, LLC
By: ▇▇▇▇▇▇▇ IX, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
and
By: ▇▇▇▇▇▇▇ X, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
▇.▇. ▇▇▇▇▇▇ MANAGEMENT COMPANY, LTD.
▇.▇. ▇▇▇▇▇▇-TEXAS, LTD.
By: ▇▇▇▇▇▇▇ I, Ltd.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
CONTINENTAL HOMES OF TEXAS, L.P.
By: CHTEX of Texas, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
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▇▇▇▇▇▇▇ II, LTD.
CH INVESTMENTS OF TEXAS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
President
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AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
--------------------------
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