EX-4.15 9 d96909ex4-15.txt 5TH SUPPLEMENTAL INDENTURE RE: 10% SENIOR NOTES EXHIBIT 4.15 ================================================================================ D.R. HORTON, INC., THE GUARANTORS PARTY HERETO, AND FIRST UNION NATIONAL BANK, as Trustee ----------- FIFTH SUPPLEMENTAL INDENTURE Dated as of February 21, 2002 ----------- Supplementing the Indenture Dated as of April 15, 1996 with respect to the 10% Senior Notes Due 2006 ================================================================================ THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of February 21, 2002, 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, as trustee (the "Trustee"). RECITALS WHEREAS, Continental Homes Holding Corp., a Delaware corporation ("Continental"), 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, pursuant to which Continental issued a series of Securities designated as its 10% Senior Notes due 2006 in the aggregate principal amount of $150,000,000 (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, by and between the Company and Continental, Continental was duly merged with and into the Company (the "Continental Merger"), with the Company continuing as the surviving corporation; WHEREAS, as a result of the Continental 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 the First Supplemental Indenture dated as of April 20, 1998 (the "First Supplemental Indenture"), the Second Supplemental Indenture dated as of August 31, 1998 (the "Second Supplemental Indenture"), the Third Supplemental Indenture dated as of August 31, 1999 (the "Third Supplemental Indenture"), and the Fourth Supplemental Indenture dated as of May 21, 2001 (the "Fourth Supplemental Indenture"), among the Company, each of the guarantors party to such supplemental indentures (the "Existing Guarantors") and the Trustee, the Company caused certain Restricted Subsidiaries to guarantee the Notes for all purposes under the Indenture; WHEREAS, on February 21, 2002, 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 October 22, 2001, as amended, by and between the Company and Schuler Homes, Inc., a Delaware corporation ("Schuler"), Schuler was duly merged with and into the Company, with the Company continuing as the surviving corporation (the "Merger"); WHEREAS, pursuant to Sections 4.16 and 10.03 of the Indenture, any Subsidiary with a net book value greater than $10,000,000 which is a Restricted Subsidiary is required to guarantee, simultaneously with its designation as a Restricted Subsidiary, the payment of the Securities pursuant to the terms of Article Ten and Exhibit B of the Indenture; 1 WHEREAS, as a result of the Merger and pursuant to Sections 4.16 and 10.03 of the Indenture, the Company desires to cause each of the former subsidiaries of Schuler who are deemed to be Restricted Subsidiaries (the "Additional Guarantors") to be bound by those terms applicable to a Guarantor under the Indenture, and cause such Additional Guarantors to execute and deliver a supplemental indenture pursuant to which such Additional Guarantors shall unconditionally guarantee all of the Company's obligations under the Securities on the terms set forth in the Indenture; and WHEREAS, the execution of this Fifth Supplemental Indenture has been duly authorized by the Executive Committee of the Board of Directors of the Company and the Boards of Directors or other governing bodies of the Additional Guarantors and all things necessary to make this Fifth Supplemental Indenture a legal, valid, binding and enforceable obligation of the Company and the Additional Guarantors 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: ARTICLE I. ADDITIONAL GUARANTORS 1.1. In accordance with Sections 4.16 and 10.03 of the Indenture, the following Additional Guarantors hereby unconditionally guarantee all of the Company's obligations under the Securities and the Indenture, as it relates to the Securities, on the terms set forth in the Indenture, including without limitation, Article Ten and Exhibit B thereof:
Name Jurisdiction of Organization ---- ---------------------------- Allegra, LLC California AP LHI, Inc. California AP Western GP Corporation Delaware AP WP Operating Corporation Delaware AP WP Partners, L.P. Delaware APLAM, LLC California D.R. Horton-Schuler Homes, LLC Delaware HPH Homebuilders 2000 L.P. California HPH Homebuilders LP 1995 California HPH Homebuilders LP 1996 California LAMCO Housing, Inc. California Livermore Homebuilders LP California Melody Homes, Inc. Delaware Melody Mortgage Co. Colorado Oakley-Avalon LP California Porter GP LLC Delaware Schuler Homes of Arizona LLC Delaware
2 Schuler Homes of California, Inc. California Schuler Homes of Oregon, Inc. Oregon Schuler Homes of Washington, Inc. Washington Schuler Mortgage, Inc. Delaware Schuler Realty/Maui, Inc. Hawaii Schuler Realty/Oahu, Inc. Hawaii SHA Construction LLC Delaware SHLR of California, Inc. California SHLR of Colorado, Inc. Colorado SHLR of Nevada, Inc. Nevada SHLR of Utah, Inc. Utah SHLR of Washington, Inc. Washington SRHI LLC Delaware SSHI LLC Delaware Vertical Construction Corporation Delaware Western Pacific Funding, Inc. California Western Pacific Housing Co. California Western Pacific Housing Management, Inc. California (formerly Western Pacific Housing, Inc., a California corporation) Western Pacific Housing, Inc. Delaware (formerly Schuler Holdco, Inc., a Delaware corporation) Western Pacific Housing-Antigua, LLC Delaware Western Pacific Housing-Aviara, L.P. California Western Pacific Housing-Boardwalk, LLC Delaware Western Pacific Housing-Broadway, LLC Delaware Western Pacific Housing-Canyon Park, LLC Delaware Western Pacific Housing-Carmel, LLC Delaware Western Pacific Housing-Carrillo, LLC Delaware Western Pacific Housing-Communications Delaware Hill, LLC Western Pacific Housing-Copper Canyon, LLC Delaware Western Pacific Housing-Coto Venture, L.P. California Western Pacific Housing-Creekside, LLC Delaware Western Pacific Housing-Culver City, L.P. California Western Pacific Housing-Del Valle, LLC Delaware Western Pacific Housing-Lomas Verdes, LLC Delaware Western Pacific Housing-Lost Hills Park, LLC Delaware Western Pacific Housing-Lyons Canyon Delaware Partners, LLC Western Pacific Housing-McGonigle Canyon, LLC Delaware Western Pacific Housing-Mountaingate, L.P. California Western Pacific Housing-Norco Estates, LLC Delaware Western Pacific Housing-Oso, L.P. California
3 Western Pacific Housing-Pacific Park II, LLC Delaware Western Pacific Housing-Park Avenue East, LLC Delaware Western Pacific Housing-Park Avenue West, LLC Delaware Western Pacific Housing-Playa Vista, LLC Delaware Western Pacific Housing-Pointsettia, L.P. California Western Pacific Housing-River Ridge, LLC Delaware Western Pacific Housing-Robinhood Ridge, LLC Delaware Western Pacific Housing-Santa Fe, LLC Delaware Western Pacific Housing-Scripps II, LLC Delaware Western Pacific Housing-Scripps, L.P. California Western Pacific Housing-Sea Cove, L.P. California Western Pacific Housing-Studio 528, LLC Delaware Western Pacific Housing-Terra Bay Duets, LLC Delaware Western Pacific Housing-Torrance, LLC Delaware Western Pacific Housing-Torrey Commercial, LLC Delaware Western Pacific Housing-Torrey Meadows, LLC Delaware Western Pacific Housing-Torrey Multi-Family, LLC Delaware Western Pacific Housing-Torrey Village Center, LLC Delaware Western Pacific Housing-Vineyard Terrace, LLC Delaware Western Pacific Housing-Westlake II, L.P. California Western Pacific Housing-Windemere, LLC Delaware Western Pacific Housing-Windflower, L.P. California WPH-Camino Ruiz, LLC Delaware WPH-HPH, LLC 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 Notes. ARTICLE II. DESIGNATED SENIOR INDEBTEDNESS 2.1 Each series of Securities and each Guarantee under the Indenture shall be deemed "Designated Senior Indebtedness" and "Guarantor Senior Indebtedness," respectively, for purposes of the Indenture, dated as of June 28, 2001, by and among Schuler, the guarantors party thereto and U.S. Bank Trust National Association, as trustee. 4 ARTICLE III. MISCELLANEOUS 3.1. This Fifth Supplemental Indenture constitutes a supplement to the Indenture, and the Indenture and this Fifth 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 Fifth 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 Fifth Supplemental Indenture or the Notes 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 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 Notes 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. 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 16 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 Trustee shall not be responsible or accountable in any way whatsoever for or 5 with respect to the validity or execution or sufficiency of this Fifth Supplemental Indenture and the Trustee makes no representation with respect thereto. ARTICLE IV. SUCCESSOR 4.1 The Company, as the Successor, shall succeed to, and be substituted for, and may exercise every right and power of, and shall assume every duty and obligation of, the Company under the Indenture with the same effect as if such Successor had been named as the Company therein. [SIGNATURES INTENTIONALLY APPEAR ON NEXT PAGE FOLLOWING] 6 IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed, all as of the day and year first above written. D.R. HORTON, INC. By: /s/ SAMUEL R. FULLER ---------------------------------------------- Samuel R. Fuller, Executive Vice President, Treasurer and Chief Financial Officer EXISTING GUARANTORS: C. Richard Dobson Builders, Inc. CHI Construction Company CHTEX of Texas, Inc. Continental Homes, Inc. Continental Homes of Florida, Inc. Continental Residential, Inc. D.R. Horton, Inc. - Birmingham D.R. Horton, Inc. - Chicago D.R. Horton, Inc. - Denver D.R. Horton, Inc. - Dietz-Crane D.R. Horton, Inc. - Greensboro D.R. Horton, Inc. - Jacksonville D.R. Horton, Inc. - Louisville D.R. Horton Los Angeles Holding Company, Inc. D.R. Horton, Inc. - Minnesota D.R. Horton, Inc. - New Jersey D.R. Horton, Inc. - Portland D.R. Horton, Inc. - Sacramento D.R. Horton San Diego Holding Company, Inc. D.R. Horton, Inc. - Torrey DRH Cambridge Homes, Inc. DRH Construction, Inc. DRH Regrem II, Inc. DRH Regrem III, Inc. DRH Regrem IV, Inc. DRH Regrem V, Inc. DRH Southwest Construction, Inc. DRH Title Company of Colorado, Inc. DRH Tucson Construction, Inc. DRHI, Inc. KDB Homes, Inc. Meadows I, Ltd. Meadows VIII, Ltd. Meadows IX, Inc. Meadows X, Inc. By: /s/ SAMUEL R. FULLER ------------------------------------ Samuel R. Fuller Treasurer DRH Regrem VIII, LLC DRH Cambridge Homes, LLC By: D.R. Horton, Inc. - Chicago, a member By: /s/ SAMUEL R. FULLER ------------------------------ Samuel R. Fuller Treasurer D.R. Horton - Emerald, Ltd. D.R. Horton Management Company, Ltd. D.R. Horton-Texas, Ltd. DRH Regrem VII, LP By: Meadows I, Ltd., the general partner By: /s/ SAMUEL R. FULLER ---------------------------------- Samuel R. Fuller Treasurer SGS Communities At Grande Quay, LLC By: Meadows IX, Inc., a member By: /s/ SAMUEL R. FULLER ---------------------------------- Samuel R. Fuller Treasurer and By: Meadows X, Inc., a member By: /s/ SAMUEL R. FULLER ---------------------------------- Samuel R. Fuller Treasurer Continental Homes of Texas, L.P. By: CHTEX of Texas, Inc., the general partner By: /s/ SAMUEL R. FULLER ---------------------------------- Samuel R. Fuller Treasurer Meadows II, Ltd. CH Investments of Texas, Inc. By: /s/ WILLIAM PECK ----------------------------------- William Peck President ADDITIONAL GUARANTORS: Allegra, LLC AP LHI, Inc. AP Western GP Corporation AP WP Operating Corporation AP WP Partners, L.P. APLAM, LLC HPH Homebuilders 2000 L.P. HPH Homebuilders LP 1995 HPH Homebuilders LP 1996 LAMCO Housing, Inc. Livermore Homebuilders LP Melody Homes, Inc. Melody Mortgage Co. Oakley-Avalon LP Porter GP LLC Schuler Homes of Arizona LLC Schuler Homes of California, Inc. Schuler Homes of Oregon, Inc. Schuler Homes of Washington, Inc. Schuler Mortgage, Inc. Schuler Realty/Maui, Inc. Schuler Realty/Oahu, Inc. SHA Construction LLC SHLR of California, Inc. SHLR of Colorado, Inc. SHLR of Nevada, Inc. SHLR of Utah, Inc. SHLR of Washington, Inc. SRHI LLC SSHI LLC Vertical Construction Corporation Western Pacific Funding, Inc. Western Pacific Housing Co. Western Pacific Housing Management, Inc., (formerly Western Pacific Housing, Inc., a California corporation) Western Pacific Housing, Inc. (formerly Schuler Holdco, Inc., a Delaware corporation) Western Pacific Housing-Antigua, LLC Western Pacific Housing-Aviara, L.P. Western Pacific Housing-Boardwalk, LLC Western Pacific Housing-Broadway, LLC Western Pacific Housing-Canyon Park, LLC Western Pacific Housing-Carmel, LLC Western Pacific Housing-Carrillo, LLC Western Pacific Housing-Communications Hill, LLC Western Pacific Housing-Copper Canyon, LLC Western Pacific Housing-Coto Venture, L.P. Western Pacific Housing-Creekside, LLC Western Pacific Housing-Culver City, L.P. Western Pacific Housing-Del Valle, LLC Western Pacific Housing-Lomas Verdes, LLC Western Pacific Housing-Lost Hills Park, LLC Western Pacific Housing-Lyons Canyon Partners, LLC Western Pacific Housing-McGonigle Canyon, LLC Western Pacific Housing-Mountaingate, L.P. Western Pacific Housing-Norco Estates, LLC Western Pacific Housing-Oso, L.P. Western Pacific Housing-Pacific Park II, LLC Western Pacific Housing-Park Avenue East, LLC Western Pacific Housing-Park Avenue West, LLC Western Pacific Housing-Playa Vista, LLC Western Pacific Housing-Pointsettia, L.P. Western Pacific Housing-River Ridge, LLC Western Pacific Housing-Robinhood Ridge, LLC Western Pacific Housing-Santa Fe, LLC Western Pacific Housing-Scripps II, LLC Western Pacific Housing-Scripps, L.P. Western Pacific Housing-Sea Cove, L.P. Western Pacific Housing-Studio 528, LLC Western Pacific Housing-Terra Bay Duets, LLC Western Pacific Housing-Torrance, LLC Western Pacific Housing-Torrey Commercial, LLC Western Pacific Housing-Torrey Meadows, LLC Western Pacific Housing-Torrey Multi-Family, LLC Western Pacific Housing-Torrey Village Center, LLC Western Pacific Housing-Vineyard Terrace, LLC Western Pacific Housing-Westlake II, L.P. Western Pacific Housing-Windemere, LLC Western Pacific Housing-Windflower, L.P. WPH-Camino Ruiz, LLC WPH-HPH, LLC By: /s/ THOMAS CONNELLY ----------------------------------------------------- Thomas Connelly, Chief Financial Officer and Secretary of each corporate guarantor, of each managing member or sole manager of each limited liability company guarantor, and of each general partner of each limited partnership guarantor D.R. Horton-Schuler Homes, LLC By: Vertical Construction Corporation, its manager By: /s/ THOMAS CONNELLY ----------------------------------- Thomas Connelly Chief Financial Officer and Secretary FIRST UNION NATIONAL BANK, as Trustee By: /s/ GEORGE J. RAYZIS ------------------------------------------- Name: George J. Rayzis ----------------------------------------- Title: Vice President ----------------------------------------