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EXHIBIT 4.10
D.R. HORTON, INC. AND THE GUARANTORS PARTY HERETO
AND
FIRST UNION NATIONAL BANK,
as
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of August 31, 1998
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10% SENIOR NOTES
DUE 2006
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SECOND 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 April 15, 1996 (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 FIRST UNION
NATIONAL BANK, a national banking association organized and existing under the
laws of the United States of America, as trustee (the "Trustee").
RECITALS
WHEREAS, Continental Homes Holding Corp., a Delaware corporation
("Continental"), and the Trustee entered into the Indenture pursuant to which
Continental issued $150,000,000 principal amount of 10% Senior Notes due 2006
(the "Securities");
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, 1998, by and between the Company and Continental,
Continental was duly merged with and into the Company (the "Merger"), with the
Company continuing as the surviving corporation;
WHEREAS, as a result of the Merger, the Company succeeded to all
obligations, duties and liabilities of Continental under the Indenture as if
incurred or contracted by the Company;
WHEREAS, pursuant to Section 4.16 of the Indenture, the Company is
required to cause any Subsidiary with a net book value greater than $10,000,000
which is a Restricted Subsidiary to guarantee, simultaneously with its
designation as a Restricted Subsidiary, the payment of the Securities pursuant
to the terms of Article 10 and Exhibit B of the Indenture;
WHEREAS, in accordance with Section 4.16 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 guarantee the
payment of the Securities;
WHEREAS, pursuant to Section 10.04 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 10.04 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 Second 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 Second 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 Sections 4.16 and
10.03 of the Indenture, the following Restricted Subsidiaries (the "Additional
Guarantors") hereby severally agree to be subject to and bound by the terms of
the Indenture applicable to a Guarantor and hereby jointly and severally
unconditionally and irrevocably guarantee on a senior basis the payment of the
Securities pursuant to the terms of Article 10 of, and Exhibit B to, the
Indenture:
Name Jurisdiction of Organization
D.R. Horton, Inc. - Portland Delaware
Magnolia Homes Builders, Inc. Georgia
1.2 The Additional Guarantors shall execute and deliver a Guarantee,
which shall be incorporated herein by reference in the form set forth in Exhibit
B to the Indenture.
ARTICLE II.
MERGED GUARANTORS
2.1 In accordance with Section 10.04 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
Homes of San Antonio, L.P. merged into Continental
Homes of Texas, L.P. as of July 31, 1998.
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(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 Second Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture, the First Supplement Indenture thereto, and this
Second Supplemental Indenture 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 Second
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
3.3 In the event that any provision in this Second Supplemental
Indenture shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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 Second 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 Second 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 Second Supplemental Indenture shall bind its
successors and assigns.
3.7 The laws of the State of New York shall govern this Second
Supplemental Indenture, the Securities of each Series and the Guarantees.
3.8 Except as amended by this Second Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
3.9 This Second 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 Second
Supplemental Indenture.
3.10 All liability described in paragraph 16 of the Notes of any
director, officer, employee or stockholder, as such, of the Company or any
Guarantor is waived and released.
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3.11 The Trustee accepts the modifications of the trust effected by
this Second 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 Second 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
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ George J. Rayzis
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Name: George J. Rayzis
Title: Vice President
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