EXHIBIT 4.12
SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of February 3, 2003, is among
Technical Olympic USA, Inc., a Delaware corporation (the "Company"), each of
the parties identified under the caption "Subsidiary Guarantors" on the
signature page hereto (the "Guarantors") and Wells Fargo Bank Minnesota,
National Association, a national banking association, as Trustee.
RECITALS
WHEREAS, the Company, certain Subsidiary Guarantors and the Trustee
entered into an Indenture, dated as of June 25, 2002 (the "Indenture"),
pursuant to which the Company has originally issued $150,000,000 in aggregate
principal amount of 10 3/8% Senior Subordinated Notes due 2012 (the "Notes");
and
WHEREAS, Section 9.01(a)(iv) of the Indenture provides that the
Company, the Subsidiary Guarantors and the Trustee may amend or supplement the
Indenture in order to add any new Subsidiary Guarantor to comply with Section
10.04 thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by law and
by the charter and the bylaws (or comparable constituent documents) of the
Company, of the Subsidiary Guarantors and of the Trustee necessary to make this
Supplemental Indenture a valid instrument legally binding on the Company, the
Subsidiary Guarantors and the Trustee, in accordance with its terms, have been
duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Company, the Subsidiary Guarantors and
the Trustee covenant and agree for the equal and proportionate benefit of the
respective Holders of the Notes as follows:
ARTICLE 1.
Section 1.01. This Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any and all
purposes.
Section 1.02. This Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company, the
Subsidiary Guarantors and the Trustee.
ARTICLE 2.
Section 2.01. From this date, in accordance with Section 10.04 and by
executing this Supplemental Indenture and the accompanying notation of
Subsidiary Guarantee (a copy of which is attached hereto), the Subsidiary
Guarantors whose signatures appear below are subject to the provisions of the
Indenture to the extent provided for in Article 10 thereof.
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ARTICLE 3.
Section 3.01. Except as specifically modified herein, the Indenture
and the Notes are in all respects ratified and confirmed (mutatis mutandis) and
shall remain in full force and effect in accordance with their terms with all
capitalized terms used herein without definition having the same respective
meanings ascribed to them as in the Indenture.
Section 3.02. Except as otherwise expressly provided herein, no
duties, responsibilities or liabilities are assumed, or shall be construed to
be assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 3.03. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.
Section 3.04. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
TECHNICAL OLYMPIC USA, INC.
By: /s/ Tommy L. McAden
-------------------------------------------------
Tommy L. McAden
Vice President - Finance and Administration and
Chief Financial Officer
SUBSIDIARY GUARANTORS:
Adler Realty Co.
ADRO Const., Inc.
Alliance Insurance and Information Services, LLC
Engle Homes Delaware, Inc.
Engle Homes Financing, Inc.
Engle Homes/Arizona Construction, Inc.
Engle Homes/Arizona, Inc.
Engle Homes/Broward, Inc.
Engle Homes/Colorado, Inc.
Engle Homes/Virginia, Inc.
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Newmark Finance Affiliate, Ltd.
Newmark Finance Corporation
Newmark Home Corporation
Newmark Homes L.P.
Newmark Homes Purchasing, L.P.
NHC Homes, Inc.
NHM Investments, Inc.
Pacific United Development Corp.
Pacific United L.P.
Pembroke Falls Realty, Inc.
Preferred Builders Realty, Inc.
Preferred Home Mortgage Company
Prestige Abstract & Title, LLC
Professional Advantage Title, Ltd.
PUDC, Inc.
Silverlake Interests, L.C.
TAP Acquisition Co.
Technical Mortgage, L.P.
The Adler Companies, Inc.
TM Investments, L.L.C.
TOUSA Associates Services Company
TOUSA Financing, Inc.
TOUSA Homes, Inc.
TOUSA Shared Services, LLC
Universal Land Title Agency, Inc.
Universal Land Title, Inc.
Universal Land Title Investment #1, L.L.C.
Universal Land Title Investment #2, L.L.C.
Universal Land Title Investment #3, L.L.C.
Universal Land Title Investment #4, L.L.C.
Universal Land Title of South Florida, Ltd.
Universal Land Title of Texas, Inc.
Universal Land Title of The Palm Beaches, Ltd.
Universal Land Title of Virginia, Inc.
By: /s/ Tommy L. McAden
-------------------------------------------------
Tommy L. McAden
Vice President - Finance and Administration
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NEWMARK HOMES BUSINESS TRUST
By: /s/ Terry White
-------------------------------------------------
Name: Terry White
Title: Managing Trustee
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Joseph P. O'Donnell
-------------------------------------------------
Joseph P. O'Donnell
Corporate Trust Officer
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