EXHIBIT 4.4
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D.R. HORTON, INC. AND THE GUARANTORS PARTY HERETO
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of April 20, 1998
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8 3/8% SENIOR NOTES
DUE 2004
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FOURTH SUPPLEMENTAL INDENTURE, dated as of April 20, 1998, 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 between D.R.
HORTON, 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 (with the guarantors party to subsequent supplemental indentures,
the "Existing Guarantors") 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 up to $250,000,000 (the "Notes");
WHEREAS, on April 20, 1998, pursuant to the laws of the State of
Delaware and in accordance with the terms of the Agreement and Plan of Merger,
dated as of December 18, 1997 (the "Merger Agreement"), by and between the
Company and Continental Homes Holding Corp., a Delaware corporation
("Continental"), Continental was duly merged with and into the Company (the
"Merger") with the Company continuing as the surviving corporation;
WHEREAS, pursuant to Section 4.05 of the Indenture, if the Company
organizes, acquires or otherwise invests in another Subsidiary which becomes a
Restricted Subsidiary, then such Subsidiary shall execute and deliver a
supplemental indenture pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes on
the terms set forth in the Indenture;
WHEREAS, as a result of the Merger and in accordance with Section 4.05
of the Indenture, the Company desires to cause each of the former subsidiaries
of Continental who are deemed to be Restricted Subsidiaries according to the
Indenture to be bound by those terms applicable to a Guarantor under the
Indenture (as it applies to the Securities);
WHEREAS, the execution of this Fourth Supplemental Indenture has been
duly authorized by the Boards of Directors of the Company and the Additional
Guarantors and all things necessary to make this Fourth 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 Existing Guarantors and the Additional Guarantors covenant and agree with
the Trustee for the equal and ratable benefit of the respective holders of the
Securities as follows:
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ARTICLE I.
ADDITIONAL GUARANTORS
1.1. In accordance with Section 4.05 of the Indenture, the following
Restricted Subsidiaries (the "Additional Guarantors") hereby unconditionally
guarantee all of the Company's obligations under the Securities of any Series
that has the benefit of Guarantees of other Subsidiaries of the Company and the
Indenture (as it relates to all such Series) on the terms set forth in the
Indenture, including without limitation, Article Nine thereof, and, in the case
of the Notes, Article One of the First Supplemental Indenture thereto and the
Guarantees affixed thereto:
Name Jurisdiction of Organization
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Continental Homes, Inc. Delaware
KDB Homes, Inc. Delaware
L&W Investments, Inc. California
Continental Ranch, Inc. Delaware
Continental Homes of Florida, Inc. Florida
CHI Construction Company Arizona
CHTEX of Texas, Inc. Delaware
CH Investments of Texas, Inc. Delaware
Continental Homes of Austin, L.P. Texas
Continental Homes of Dallas, L.P. Texas
Continental Homes of San Antonio, L.P. Texas
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.
ARTICLE II.
MISCELLANEOUS PROVISIONS
2.1. This Fourth Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, dated as of September 30, 1997, by and among the
Company, the guarantors thereto and the Trustee, and the Third Supplemental
Indenture, dated as of April 17, 1998, 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 Fourth
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 Fourth
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
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unenforceability shall not affect any other provisions of this Fourth
Supplemental Indenture or of 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 Fourth Supplemental Indenture
and not defined herein that is defined in the Indenture shall have the meaning
specified in the Indenture, unless the context shall otherwise require.
2.6. All covenants and agreements in this Fourth Supplemental Indenture
by the Company and the Additional Guarantors shall bind each of their successors
and assigns, whether so expressed or not. All agreements of the Trustee in this
Fourth Supplemental Indenture shall bind its successors and assigns.
2.7. The laws of the State of New York shall govern this Fourth
Supplemental Indenture, the Securities of each Series and the Guarantees.
2.8. Except as amended by this Fourth Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
2.9. This Fourth 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 Fourth
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 Fourth 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 the 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 Fourth Supplemental Indenture and the Trustee makes no
representation with respect thereto.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
D.R. HORTON, INC.
By:/s/ David J. Keller
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David J. Keller
Executive Vice President,
Chief Financial Officer and Treasurer
ADDITIONAL GUARANTORS:
Continental Homes, Inc.
KDB Homes, Inc.
L&W Investments, Inc.
Continental Ranch, Inc.
Continental Homes of Florida, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
CH Investments of Texas, Inc.
By:/s/ David J. Keller
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David J. Keller, Treasurer
Continental Homes of Austin, L.P.
By: CHTEX of Texas, Inc.
Its: General Partner
By:/s/ David J. Keller
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David J. Keller, Treasurer
Continental Homes of Dallas, L.P.
By: CHTEX of Texas, Inc.
Its: General Partner
By:/s/ David J. Keller
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David J. Keller, Treasurer
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Continental Homes of San Antonio, L.P.
By: CHTEX of Texas, Inc.
Its: General Partner
By:/s/ David J. Keller
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David J. Keller, Treasurer
EXISTING GUARANTORS:
DRHI, Inc.
DRH Construction, Inc.
DRH New Mexico Construction, Inc.
D.R. Horton Denver Management Company,
Inc.
D.R. Horton, Inc. - Albuquerque
D.R. Horton, Inc. - Denver
D.R. Horton, Inc. - Minnesota
D.R. Horton, Inc. - New Jersey
Meadows I, Ltd.
Meadows II, Ltd.
Meadows IX, Inc.
Meadows X, Inc.
D.R. Horton Los Angeles Holding Company,
Inc.
D.R. Horton Los Angeles Management
Company, Inc.
D.R. Horton, Inc. - Birmingham
D.R. Horton, Inc. - Greensboro
D.R. Horton San Diego Holding Company,
Inc.
D.R. Horton San Diego Management
Company, Inc.
D.R. Horton, Inc. - Torrey
DRH Tucson Construction, Inc.
D.R. Horton, Inc. - Sacramento
D.R. Horton - Sacramento Management
Company, Inc.
C. Richard Dobson Builders, Inc.
Land Development, Inc.
S. G. Torrey Atlanta, Ltd.
By:/s/ David J. Keller
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David J. Keller, Treasurer
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D.R. Horton Management Company, Ltd.
By: Meadows I, Ltd.,
its general partner
By:/s/ David J. Keller
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David J. Keller, Treasurer
D.R. Horton - Texas, Ltd.
By: Meadows I, Ltd.,
its general partner
By:/s/ David J. Keller
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David J. Keller, Treasurer
SGS Communities at Grande Quay, LLC
By: Meadows IX, Inc., a member
By:/s/ David J. Keller
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David J. Keller, Treasurer
and
By: Meadows X, Inc., a member
By:/s/ David J. Keller
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David J. Keller, Treasurer
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AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By:/s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President
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