Exhibit 10.2
D.R. HORTON, INC.,
THE GUARANTORS PARTY HERETO,
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 13, 2006
Supplementing the Indenture
Dated as of April 11, 2002
with respect to the
8.5% Senior Notes Due 2012
Dated as of April 11, 2002
with respect to the
8.5% Senior Notes Due 2012
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of June 13, 2006, to the Indenture, dated as of April 11, 2002 (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 (which includes all entities listed as an Existing Guarantor on the signature pages hereof) 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 April 11, 2002, among the Company, the guarantors party thereto and the Trustee, the Company issued a series of Securities designated as its 8.5% Senior Notes due 2012 (the “Notes”);
WHEREAS, pursuant to the Second Supplemental Indenture, dated as of January 23, 2006, among the Company, the guarantors party thereto and the Trustee, the Company caused certain Restricted Subsidiaries to guarantee the Notes for all purposes under the Indenture;
WHEREAS, pursuant to Section 4.05 of the Indenture, any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary by the Board of Directors of the Company (which includes an authorized committee thereof) is required to guarantee the Notes for all purposes under the Indenture;
WHEREAS, the Board of Directors of the Company has redesignated certain Unrestricted Subsidiaries of the Company as Restricted Subsidiaries of the Company;
WHEREAS, pursuant to Section 4.05 of the Indenture, in order for such former Unrestricted Subsidiaries to be bound by those terms applicable to a Guarantor under the Indenture, such former Unrestricted Subsidiaries (the “Additional Guarantors”) must execute and deliver a supplemental indenture pursuant to which such Additional Guarantors shall unconditionally guarantee all of the Company’s obligations under the Notes on the terms set forth in the Indenture;
WHEREAS, the execution of this Third Supplemental Indenture has been duly authorized by the Boards of Directors or other governing bodies of the Company and the Additional Guarantors and all things necessary to make this Third 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;
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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 Notes as follows:
ARTICLE I.
ADDITIONAL GUARANTORS
1.1. In accordance with Section 4.05 of the Indenture and as provided in ARTICLE NINE of the Indenture and the form of notation on security relating to Guarantee attached thereto, the following Additional Guarantors hereby unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture, as it relates to the Notes, on the terms set forth in the Indenture, including without limitation, Article Nine thereof:
| Name | Jurisdiction of Organization | |
| D.R. Horton, Inc. — Los Angeles | Delaware | |
| DRH Regrem XIII, Inc. | Delaware | |
| DRH Regrem XIV, Inc. | Delaware | |
| DRH Regrem XV, Inc. | Delaware | |
| DRH Regrem XVI, Inc. | Delaware | |
| DRH Regrem XVII, Inc. | Delaware | |
| DRH Regrem XVIII, Inc. | Delaware | |
| DRH Regrem XIX, Inc. | Delaware | |
| DRH Regrem XX, Inc. | Delaware | |
| DRH Regrem XXI, Inc. | Delaware | |
| DRH Regrem XXII, Inc. | Delaware | |
| DRH Regrem XXIII, Inc. | Delaware | |
| DRH Regrem XXIV, Inc. | 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.
MISCELLANEOUS
2.1. This Third Supplemental Indenture constitutes a supplement to the Indenture, and the Indenture and this Third 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.
2.2 The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
2.3 In the event that any provision in this Third 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.
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2.4 The article headings herein are for convenience only and shall not affect the construction hereof.
2.5 Any capitalized term used in this Third 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.
2.6 All covenants and agreements in this Third 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 Third Supplemental Indenture shall bind its successors and assigns.
2.7 The laws of the State of New York shall govern this Third Supplemental Indenture, the Notes and the Guarantees.
2.8 Except as amended by this Third Supplemental Indenture, the terms and provisions of the Indenture shall remain in full force and effect.
2.9 This Third 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 Third Supplemental Indenture.
2.10 All liability described in paragraph 13 of the 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 Third 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 with respect to the validity or execution or sufficiency of this Third Supplemental Indenture and the Trustee makes no representation with respect thereto.
[SIGNATURES INTENTIONALLY APPEAR ON NEXT PAGE FOLLOWING]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, all as of the day and year first above written.
| D.R. HORTON, INC. | ||||
| By: | /s/ BILL W. WHEAT | |||
| Bill W. Wheat | ||||
| Executive Vice President and Chief Financial Officer | ||||
EXISTING GUARANTORS:
C. RICHARD DOBSON BUILDERS, INC.
CHI CONSTRUCTION COMPANY
CHTEX OF TEXAS, INC.
CONTINENTAL HOMES, 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. — FRESNO
D.R. HORTON, INC. — GREENSBORO
D.R. HORTON, INC. — GULF COAST
D.R. HORTON, INC. — JACKSONVILLE
D.R. HORTON, INC. — LOUISVILLE
D.R. HORTON, INC. — MINNESOTA
D.R. HORTON, INC. — NEW JERSEY
D.R. HORTON, INC. — PORTLAND
D.R. HORTON, INC. — SACRAMENTO
D.R. HORTON, INC. — TORREY
D.R. HORTON LOS ANGELES HOLDING COMPANY, INC.
D.R. HORTON MATERIALS, INC.
D.R. HORTON ORANGE COUNTY, INC.
D.R. HORTON SAN DIEGO HOLDING COMPANY, INC.
DRH CAMBRIDGE HOMES, INC.
DRH CONSTRUCTION, INC.
DRH ENERGY, INC.
DRH REGREM X, INC.
DRH REGREM XI, INC.
DRH SOUTHWEST CONSTRUCTION, INC.
DRH TUCSON CONSTRUCTION, INC.
DRHI, INC.
KDB HOMES, INC.
MEADOWS I, LTD.
MEADOWS VIII, LTD.
MEADOWS IX, INC.
MEADOWS X, INC.
MELMORT CO.
MELODY HOMES, INC.
SCHULER HOMES OF CALIFORNIA, INC.
SCHULER HOMES OF OREGON, INC.
SCHULER HOMES OF WASHINGTON, INC.
SCHULER MORTGAGE, INC.
SCHULER REALTY HAWAII, INC.
SHLR OF CALIFORNIA, INC.
SHLR OF COLORADO, INC.
SHLR OF NEVADA, INC.
SHLR OF UTAH, INC.
SHLR OF WASHINGTON, INC.
VERTICAL CONSTRUCTION CORPORATION
WESTERN PACIFIC FUNDING, INC.
WESTERN PACIFIC HOUSING, INC.
WESTERN PACIFIC HOUSING MANAGEMENT, INC.
CHI CONSTRUCTION COMPANY
CHTEX OF TEXAS, INC.
CONTINENTAL HOMES, 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. — FRESNO
D.R. HORTON, INC. — GREENSBORO
D.R. HORTON, INC. — GULF COAST
D.R. HORTON, INC. — JACKSONVILLE
D.R. HORTON, INC. — LOUISVILLE
D.R. HORTON, INC. — MINNESOTA
D.R. HORTON, INC. — NEW JERSEY
D.R. HORTON, INC. — PORTLAND
D.R. HORTON, INC. — SACRAMENTO
D.R. HORTON, INC. — TORREY
D.R. HORTON LOS ANGELES HOLDING COMPANY, INC.
D.R. HORTON MATERIALS, INC.
D.R. HORTON ORANGE COUNTY, INC.
D.R. HORTON SAN DIEGO HOLDING COMPANY, INC.
DRH CAMBRIDGE HOMES, INC.
DRH CONSTRUCTION, INC.
DRH ENERGY, INC.
DRH REGREM X, INC.
DRH REGREM XI, INC.
DRH SOUTHWEST CONSTRUCTION, INC.
DRH TUCSON CONSTRUCTION, INC.
DRHI, INC.
KDB HOMES, INC.
MEADOWS I, LTD.
MEADOWS VIII, LTD.
MEADOWS IX, INC.
MEADOWS X, INC.
MELMORT CO.
MELODY HOMES, INC.
SCHULER HOMES OF CALIFORNIA, INC.
SCHULER HOMES OF OREGON, INC.
SCHULER HOMES OF WASHINGTON, INC.
SCHULER MORTGAGE, INC.
SCHULER REALTY HAWAII, INC.
SHLR OF CALIFORNIA, INC.
SHLR OF COLORADO, INC.
SHLR OF NEVADA, INC.
SHLR OF UTAH, INC.
SHLR OF WASHINGTON, INC.
VERTICAL CONSTRUCTION CORPORATION
WESTERN PACIFIC FUNDING, INC.
WESTERN PACIFIC HOUSING, INC.
WESTERN PACIFIC HOUSING MANAGEMENT, INC.
| By: | /s/ BILL W. WHEAT | |||
| Executive Vice President and Chief Financial Officer | ||||
| CH INVESTMENTS OF TEXAS, INC. | ||||||
| MEADOWS II, LTD. | ||||||
| THE CLUB AT PRADERA, INC. | ||||||
| By: | /s/ ROBERT E. COLTIN | |||||
| Robert E. Coltin | ||||||
| Vice President | ||||||
| CONTINENTAL HOMES OF TEXAS, L.P. | ||||||
| By: CHTEX of Texas, Inc., its General Partner | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| D.R. HORTON MANAGEMENT COMPANY, LTD. D.R. HORTON — EMERALD, LTD. D.R. HORTON — TEXAS, LTD. DRH REGREM VII, LP DRH REGREM XII, LP | ||||||
| By: Meadows I, Ltd., its General Partner | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| SGS COMMUNITIES AT GRANDE QUAY, LLC | ||||||
| By: Meadows IX, Inc., a Member | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| and | ||||||
| By: Meadows X, Inc., a Member | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| DRH CAMBRIDGE HOMES, LLC DRH REGREM VIII, LLC | ||||||
| By: D.R. Horton, Inc. — Chicago, its Member | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
HPH HOMEBUILDERS 2000 L.P.
WESTERN PACIFIC HOUSING CO., A CALIFORNIA LIMITED PARTNERSHIP
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-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-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-POINSETTIA, L.P.
WESTERN PACIFIC HOUSING-RIVER RIDGE, LLC
WESTERN PACIFIC HOUSING-ROBINHOOD RIDGE, LLC
WESTERN PACIFIC HOUSING-SANTA FE, LLC
WESTERN PACIFIC HOUSING-SCRIPPS, L.P.
WESTERN PACIFIC HOUSING-SCRIPPS II, LLC
WESTERN PACIFIC HOUSING-SEACOVE, 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-WINDEMERE, LLC
WESTERN PACIFIC HOUSING-WINDFLOWER, L.P.
WPH-CAMINO RUIZ, LLC
WESTERN PACIFIC HOUSING CO., A CALIFORNIA LIMITED PARTNERSHIP
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-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-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-POINSETTIA, L.P.
WESTERN PACIFIC HOUSING-RIVER RIDGE, LLC
WESTERN PACIFIC HOUSING-ROBINHOOD RIDGE, LLC
WESTERN PACIFIC HOUSING-SANTA FE, LLC
WESTERN PACIFIC HOUSING-SCRIPPS, L.P.
WESTERN PACIFIC HOUSING-SCRIPPS II, LLC
WESTERN PACIFIC HOUSING-SEACOVE, 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-WINDEMERE, LLC
WESTERN PACIFIC HOUSING-WINDFLOWER, L.P.
WPH-CAMINO RUIZ, LLC
| By: | Western Pacific Housing Management, Inc., | |||||
| its Manager, Member or General Partner | ||||||
| By: | /s/ BILL W. WHEAT | |||||
| Bill W. Wheat | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| SCHULER HOMES OF ARIZONA LLC SHA CONSTRUCTION LLC | ||||||||
| By: | SRHI LLC, its Member | |||||||
| By: | SHLR of Nevada, Inc. its Member | |||||||
| By: | /s/ BILL W. WHEAT | |||||||
| Bill W. Wheat | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
| D.R. HORTON-SCHULER HOMES, LLC | ||||||||||
| By: | Vertical Construction Corporation, its Manager | |||||||||
| By: | /s/ BILL W. WHEAT | |||||||||
| Bill W. Wheat | ||||||||||
| Executive Vice President and Chief Financial Officer | ||||||||||
| SRHI LLC | ||||||||||
| By: | SHLR of Nevada, Inc., its Member | |||||||||
| By: | /s/ BILL W. WHEAT | |||||||||
| Bill W. Wheat | ||||||||||
| Executive Vice President and Chief Financial Officer | ||||||||||
| SSHI LLC | ||||||||||
| By: | SHLR of Washington, Inc., its Member | |||||||||
| By: | /s/ BILL W. WHEAT | |||||||||
| Bill W. Wheat | ||||||||||
| Executive Vice President and Chief Financial Officer | ||||||||||
ADDITIONAL GUARANTORS:
D.R. HORTON, INC. — LOS ANGELES
DRH REGREM XIII, INC.
DRH REGREM XIV, INC.
DRH REGREM XV, INC.
DRH REGREM XVI, INC.
DRH REGREM XVII, INC.
DRH REGREM XVIII, INC.
DRH REGREM XIX, INC.
DRH REGREM XX, INC.
DRH REGREM XXI, INC.
DRH REGREM XXII, INC.
DRH REGREM XXIII, INC.
DRH REGREM XXIV, INC.
DRH REGREM XIII, INC.
DRH REGREM XIV, INC.
DRH REGREM XV, INC.
DRH REGREM XVI, INC.
DRH REGREM XVII, INC.
DRH REGREM XVIII, INC.
DRH REGREM XIX, INC.
DRH REGREM XX, INC.
DRH REGREM XXI, INC.
DRH REGREM XXII, INC.
DRH REGREM XXIII, INC.
DRH REGREM XXIV, INC.
| By: | /s/ BILL W. WHEAT | |||
| Bill W. Wheat | ||||
| Executive Vice President and Chief Financial Officer |
| AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee | ||||||
| By: | /s/ HERBERT J. LEMMER | |||||
| Name: | Herbert J. Lemmer | |||||
| Title: | Vice President | |||||