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EXHIBIT 4.7
D.R. HORTON, INC. AND THE GUARANTORS PARTY HERETO
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of August 31, 1998
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8 3/8% SENIOR NOTES
DUE 2004
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FIFTH SUPPLEMENTAL INDENTURE, dated as of August 31, 1998, and
effective as of the dates set forth in Articles I and II below, 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 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, 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, in accordance with Section 4.05 of the Indenture, the Company
desires to cause certain newly organized or acquired Subsidiaries 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, pursuant to Section 9.05 of the Indenture, a Guarantor may
merge with or into, or dissolve into, another Restricted Subsidiary and, upon
such merger or dissolution, the Guarantee given by such Guarantor shall no
longer have any force or effect;
WHEREAS, in accordance with Section 9.05 of the Indenture, the Company
has caused certain Guarantors to merge with and into, or have all their property
conveyed to, certain Restricted Subsidiaries (the "Merged Guarantors"),
whereupon the Guarantees given by such Guarantors shall no longer have any force
or effect;
WHEREAS, the execution of this Fifth 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 Fifth Supplemental Indenture a
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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
Securities as follows:
ARTICLE I.
ADDITIONAL GUARANTOR
1.1. As of May 1, 1998, and August 28, 1998, respectively, the
respective dates of their organization, and 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
D.R. Horton, Inc. - Portland Delaware
Magnolia Homes Builders, Inc. Georgia
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.
MERGED GUARANTORS
2.1 In accordance with Section 9.05 of the Indenture, the Company and
the Trustee acknowledge that the Guarantees previously given by the following
Merged Guarantors no longer have any force or effect by reason of the merger or
dissolution of the Merged Guarantors into the Restricted Subsidiaries as
indicated below:
(a) DRH New Mexico Construction, Inc. merged into D.R.
Horton, Inc. - Albuquerque, as of April 30, 1998, and
the name of D.R. Horton, Inc. - Albuquerque was
changed to D.R. Horton, Inc. - Louisville.
(b) The name of Continental Homes of Austin, L.P., was
changed to Continental Homes of Texas, L.P. and
Continental Homes of Dallas, L.P. and Continental
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Homes of San Antonio, L.P. merged into Continental
Homes of Texas, L.P. as of July 31, 1998.
(c) SGS Communities at West Windsor, LLC dissolved as of
July 31, 1998, and its assets were distributed to
Meadows IX, Inc.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1 This Fifth Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture, the First Supplement Indenture, the Second
Supplemental Indenture, dated as of September 30, 1997, Third Supplemental
Indenture, dated as of April 17, 1998, and Fourth Supplemental Indenture, dated
as of April 20, 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.
3.2 The parties may sign any number of copies of this Fifth
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
3.3 In case any one or more of the provisions contained in this Fifth
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
unenforceability shall not affect any other provisions of this Fifth
Supplemental Indenture or of the Notes.
3.4 The article and section headings herein are for convenience only
and shall not affect the construction hereof.
3.5 Any capitalized term used in this Fifth 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.
3.6 All covenants and agreements in this Fifth 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 Fifth Supplemental Indenture shall bind its
successors and assigns.
3.7 The laws of the State of New York shall govern this Fifth
Supplemental Indenture, the Securities of each Series and the Guarantees.
3.8 Except as amended by this Fifth Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
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3.9 This Fifth 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 Fifth
Supplemental Indenture.
3.10 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.
3.11 The Trustee accepts the modifications of the trust effected by
this Fifth 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 Fifth Supplemental Indenture, and the Trustee makes no
representation with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
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:
D.R. Horton, Inc. - Portland
Magnolia Homes Builders, Inc.
By: /s/ David J. Keller
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David J. Keller, Treasurer
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EXISTING GUARANTORS:
DRHI, Inc.
Meadows I, Ltd.
Meadows II, Ltd.
Meadows IX, Inc.
Meadows X, Inc.
D.R. Horton, Inc. - Minnesota
D.R. Horton, Inc. - Greensboro
D.R. Horton, Inc. - Birmingham
D.R. Horton, Inc. - New Jersey
D.R. Horton, Inc. - Torrey
DRH Construction, Inc.
D.R. Horton, Inc. - Louisville
D.R. Horton, Inc. - Denver
D.R. Horton Denver Management Company, Inc.
D.R. Horton San Diego Holding Company, Inc.
D.R. Horton San Diego Management Company, Inc.
D.R. Horton Los Angeles Holding Company, Inc.
D.R. Horton Los Angeles Management
Company, Inc.
S. G. Torrey Atlanta, Ltd.
D.R. Horton, Inc. - Sacramento
D.R. Horton Sacramento Management
Company, Inc.
C. Richard Dobson Builders, Inc.
Land Development, Inc.
DRH Tucson Construction, Inc.
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
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SGS COMMUNITIES AT GRANDE QUAY, LLC
By Meadows IX, Inc., a member
By: /s/ Donald R. Horton
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Donald R. Horton
Chairman of the Board
and
By Meadows X, Inc., a member
By: /s/ Donald R. Horton
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Donald R. Horton
Chairman of the Board
D.R. HORTON MANAGEMENT COMPANY, LTD.
D.R. HORTON - TEXAS, LTD.
By Meadows I, Ltd., its general partner
By: /s/ Donald R. Horton
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Donald R. Horton
Chairman of the Board
CONTINENTAL HOMES OF TEXAS, L.P.
By CHTEX of Texas, Inc.
Its: General Partner
By: /s/ David J. Keller
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David J. Keller, Treasurer
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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