EXHIBIT 4.5
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇, INC. AND THE GUARANTORS PARTY HERETO
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
------------------
NINTH SUPPLEMENTAL INDENTURE
Dated as of March 31, 2000
------------------
10 1/2 % SENIOR NOTES
DUE 2005
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NINTH SUPPLEMENTAL INDENTURE, dated and effective as of March 31, 2000,
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 Eighth Supplemental Indenture dated as of
March 21, 2000 (the "Eighth 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 10 1/2 % Senior Notes
due 2005 in the aggregate principal amount of up to $150,000,000 (the "10 1/2 %
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 Securities
on the terms set forth in the Indenture;
WHEREAS, the execution of this Ninth 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 Ninth 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
Securities as follows:
ARTICLE I.
ADDITIONAL GUARANTORS
1.1. As of March 31, 2000, and in accordance with Section 4.05 of
the Indenture, the following Restricted Subsidiaries (the "Additional
Guarantors") hereby unconditionally guarantee
NINTH SUPPLEMENTAL INDENTURE Page 1
all of the Company's obligations under the 10 1/2 % Notes on the terms set forth
in the Indenture, including without limitation Article Nine thereof, Article One
of the Eighth Supplemental Indenture thereto and the Guarantees affixed thereto:
Jurisdiction of
Name Organization
---- ------------
Astante Luxury Communities, Inc. Delaware
DRH Cambridge Homes, LLC Delaware
DRH Southwest Construction, Inc. California
DRH Title Company of Colorado, Inc. Colorado
▇▇▇▇▇▇▇ VIII, Ltd. 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 10 1/2 %
Notes.
ARTICLE II.
MISCELLANEOUS PROVISIONS
2.1 This Ninth Supplemental Indenture constitutes a supplement to the
Indenture. The Indenture, and all Supplemental Indentures thereto, including
without limitation this Ninth 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 Ninth
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 Ninth
Supplemental Indenture or the Securities, including without limitation the 10
1/2 % 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 Ninth Supplemental Indenture or
the Securities, including without limitation the 10 1/2 % 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 Ninth 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.
NINTH SUPPLEMENTAL INDENTURE Page 2
2.6 All covenants and agreements in this Ninth 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 Ninth Supplemental Indenture shall bind its
successors and assigns.
2.7 The laws of the State of New York shall govern this Ninth
Supplemental Indenture, the Securities of each Series and the Guarantees.
2.8 Except as amended by this Ninth Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
2.9 This Ninth 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 Ninth
Supplemental Indenture.
2.10 All liability described in paragraph 12 of the 10 1/2 % 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 Ninth 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 Ninth 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.
▇.▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President, Treasurer
and Chief Financial Officer
NINTH SUPPLEMENTAL INDENTURE Page 3
ADDITIONAL GUARANTORS:
---------------------
Astante Luxury Communities, Inc.
DRH Southwest Construction, Inc.
DRH Title Company of Colorado, Inc.
▇▇▇▇▇▇▇ VIII, Ltd.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
DRH Cambridge Homes, LLC
By ▇.▇. ▇▇▇▇▇▇, Inc. - Chicago, a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
EXISTING GUARANTORS
-------------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Builders, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
Continental Homes, Inc.
Continental Homes of Florida, Inc.
Continental Residential, Inc. (formerly L&W
Investments, Inc.)
▇.▇. ▇▇▇▇▇▇, Inc. - Birmingham
▇.▇. ▇▇▇▇▇▇, Inc. - Chicago
▇.▇. ▇▇▇▇▇▇, Inc. - Denver
▇.▇. ▇▇▇▇▇▇, Inc. - Greensboro
▇.▇. ▇▇▇▇▇▇, Inc. - Louisville
▇.▇. ▇▇▇▇▇▇, Inc. - Minnesota
▇.▇. ▇▇▇▇▇▇, Inc. - New Jersey
▇.▇. ▇▇▇▇▇▇, Inc. - Portland
▇.▇. ▇▇▇▇▇▇, Inc. - Sacramento
▇.▇. ▇▇▇▇▇▇, Inc. - San Diego
▇.▇. ▇▇▇▇▇▇, Inc. - Torrey
▇.▇. ▇▇▇▇▇▇ Los Angeles Holding Company, Inc.
▇.▇. ▇▇▇▇▇▇ San Diego Holding Company, Inc.
NINTH SUPPLEMENTAL INDENTURE Page 4
DRH Cambridge Homes, Inc.
DRH Construction, Inc.
DRH Tucson Construction, Inc.
DRHI, Inc.
KDB Homes, Inc.
▇▇▇▇▇▇▇ I, Ltd.
▇▇▇▇▇▇▇ IX, Inc.
▇▇▇▇▇▇▇ X, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
CH Investments of Texas, Inc.
▇▇▇▇▇▇▇ II, Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Continental Homes of Texas, L.P.
By CHTEX of Texas, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
▇.▇. ▇▇▇▇▇▇ Management Company, Ltd.
▇.▇. ▇▇▇▇▇▇ - Texas, Ltd.
By ▇▇▇▇▇▇▇ I, Ltd., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
NINTH SUPPLEMENTAL INDENTURE Page 5
SGS Communities at Grande Quay, LLC
By ▇▇▇▇▇▇▇ IX, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
and
By ▇▇▇▇▇▇▇ X, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
NINTH SUPPLEMENTAL INDENTURE Page 6
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
NINTH SUPPLEMENTAL INDENTURE Page 7