EXHIBIT 4.12
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D.R. HORTON, INC.,
THE GUARANTORS PARTY HERETO,
AND
U.S. BANK, N.A.
(successor by merger to U.S. Bank Trust National Association),
as
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of February 21, 2002
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Supplementing the Indenture
Dated as of June 28, 2001
with respect to the
10 1/2% Senior Subordinated Notes Due 2011
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of February 21, 2002, by
and among D.R. HORTON, INC., a Delaware corporation (the "Company"), the
EXISTING GUARANTORS (as defined herein), the ADDITIONAL GUARANTORS (as defined
herein) and U.S. BANK, N.A., as successor by merger to U.S. Bank Trust National
Association, as trustee (the "Trustee").
RECITALS
WHEREAS, Schuler Homes, Inc., a Delaware corporation ("Schuler") and
the guarantors signatory thereto (the "Existing Guarantors") executed and
delivered the Indenture dated as of June 28, 2001 (the "Indenture"), to the
Trustee, pursuant to which Schuler issued $150,000,000 principal amount of 10
1/2% Senior Subordinated Notes due 2009 (the "Securities");
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 (the "Merger Agreement"), by and
between the Company and Schuler, Schuler was duly merged with and into the
Company, with the Company continuing as the surviving corporation (the
"Merger");
WHEREAS, as a result of the Merger, the Company succeeded to all
obligations, duties and liabilities of Schuler under the Indenture and the
Securities as if incurred or contracted by the Company;
WHEREAS, the Company desires to amend the Indenture to provide for the
assumption by the Company of all Obligations of Schuler pursuant to Section 5.01
of the Indenture and that all references to Schuler shall now, where
appropriate, be references to "D.R. Horton, Inc.";
WHEREAS, Schuler has a new Subsidiary, Western Pacific Housing, Inc.
(formerly known as Schuler Homes Holdco, Inc.), a Delaware corporation ("WPHI"),
which has been designated as a Restricted Subsidiary;
WHEREAS, prior to the effective time of the Merger, pursuant to an
Agreement and Plan of Merger, dated as of February 15, 2002, by and among WPHI,
each of the limited partnerships identified therein, each of the limited
liability companies identified therein, and WPH Management Co., Inc., a
California corporation (collectively, the "Merged Guarantors"), the Merged
Guarantors merged with and into WPHI, with WPHI as the surviving corporation;
WHEREAS, each of the Merged Guarantors was a Guarantor under the
Indenture;
WHEREAS, the Company desires to amend the Indenture to provide for the
assumption by WPHI of all Obligations of the Merged Guarantors pursuant to
Section 5.01 of the Indenture;
WHEREAS, pursuant to Section 4.18 of the Indenture, the Company is
required to cause any Restricted Subsidiary (the "Additional Guarantors") to
guarantee, simultaneously with its
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designation as a Restricted Subsidiary, the payment of the Securities pursuant
to the terms of Article 11 and Exhibit B of the Indenture; and
WHEREAS, the execution of this First Supplemental Indenture has been
duly authorized by the Boards of Directors of the Company, the Merged Guarantors
and the Additional Guarantors and all things necessary to make this First
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
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.
CHANGE OF NAME
1.1. The Company hereby assumes all the Obligations of Schuler under
the Indenture, the Securities and the Registration Rights Agreement.
1.2. The Indenture is hereby amended so that all references to Schuler
shall, where appropriate, be deemed to be referenced to "D.R. Horton, Inc." and
further amended to reflect such changes in phraseology or form as may be
required thereby. Section 12.02 to the Indenture is hereby amended so that the
references to the Company's address shall be deemed to be 1901 Ascension Blvd.,
Suite 100, Arlington, Texas 76006, Attention: Chief Financial Officer.
1.3. Each series of Securities under the Indenture shall rank pari
passu, on at least an equal and ratable basis, with the securities issued under
the Indenture, dated as of September 11, 2000, relating to the 9 3/8% Senior
Subordinated Notes due 2011, by and among the Company, the guarantors named
therein and American Stock Transfer & Trust Company, as trustee.
ARTICLE II.
FORM OF SECURITY
2.1. In accordance with Article I of this First Supplemental Indenture,
Exhibit A to the Indenture is hereby amended so that all references to Schuler
shall, where appropriate, be deemed to be referenced to "D.R. Horton, Inc." and
further amended to reflect such changes in phraseology or form as may be
required thereby. Exhibit A to the Indenture is hereby amended so that the
references to the Company's address shall be deemed to be 1901 Ascension Blvd.,
Suite 100, Arlington, Texas 76006, Attention: Chief Financial Officer.
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ARTICLE III.
ADDITIONAL GUARANTORS
3.1. In accordance with Sections 4.18 and 11.13 of the Indenture, the
following 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 11 of the Indenture:
<Table>
<Caption>
Name Jurisdiction of Organization
- ---- ----------------------------
C. Richard Dobson Builders, Inc. Virginia
CH Investments of Texas, Inc. Delaware
CHI Construction Company Arizona
CHTEX of Texas, Inc. Delaware
Continental Homes, Inc. Delaware
Continental Homes of Florida, Inc. Florida
Continental Homes of Texas, L.P. Texas
Continental Residential, Inc. California
D.R. Horton, Inc. - Birmingham Alabama
D.R. Horton, Inc. - Chicago Delaware
D.R. Horton, Inc. - Denver Delaware
D.R. Horton, Inc. - Dietz-Crane Delaware
D.R. Horton, Inc. - Greensboro Delaware
D.R. Horton, Inc. - Jacksonville Delaware
D.R. Horton, Inc. - Louisville Delaware
D.R. Horton Los Angeles Holding Company, Inc. California
D.R. Horton Management Company, Ltd. Texas
D.R. Horton, Inc. - Minnesota Delaware
D.R. Horton, Inc. - New Jersey Delaware
D.R. Horton, Inc. - Portland Delaware
D.R. Horton, Inc. - Sacramento California
D.R. Horton San Diego Holding Company, Inc. California
D.R. Horton - Emerald, Ltd. Texas
D.R. Horton - Texas, Ltd. Texas
D.R. Horton, Inc. - Torrey Delaware
DRH Cambridge Homes, Inc. California
DRH Cambridge Homes, LLC Delaware
DRH Construction, Inc. Delaware
DRH Regrem II, Inc. Delaware
DRH Regrem III, Inc. Delaware
DRH Regrem IV, Inc. Delaware
</Table>
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<Table>
<Caption>
Name Jurisdiction of Organization
- ---- ----------------------------
DRH Regrem V, Inc. Delaware
DRH Regrem VII, LP Texas
DRH Regrem VIII, LLC Delaware
DRH Southwest Construction, Inc. California
DRH Title Company of Colorado, Inc. Colorado
DRH Tucson Construction, Inc. Delaware
DRHI, Inc. Delaware
KDB Homes, Inc. Delaware
Meadows I, Ltd. Delaware
Meadows II, Ltd. Delaware
Meadows VIII, Ltd. Delaware
Meadows IX, Inc. New Jersey
Meadows X, Inc. New Jersey
Western Pacific Housing, Inc. Delaware
D.R. Horton-Schuler Homes, LLC Delaware
Western Pacific Housing-Park Avenue East, LLC Delaware
Western Pacific Housing-Park Avenue West, LLC Delaware
Western Pacific Housing-Copper Canyon, LLC Delaware
Western Pacific Housing-Del Valle, LLC Delaware
Western Pacific Housing-River Ridge, LLC Delaware
Western Pacific Housing-Boardwalk, LLC Delaware
Western Pacific Housing-Studio 528, LLC Delaware
Western Pacific Housing-Terra Bay Duets, LLC Delaware
Western Pacific Housing-Torrey Meadows, LLC Delaware
Western Pacific Housing-Windemere, LLC Delaware
Western Pacific Housing-Playa Vista, LLC Delaware
Western Pacific Housing-Torrance, LLC Delaware
SGS Communities at Grande Quay, LLC New Jersey
</Table>
3.2. 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 IV.
MERGED GUARANTORS
4.1 In accordance with Section 11.14 of the Indenture, the Company and
the Trustee acknowledge that the following Merged Guarantors have merged with
and into WPHI, and that all Obligations of the Merged Guarantors under the
Securities, the Indenture, the Registration Rights Agreement and the Guarantees
have been assumed by WPHI:
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Porter LP LLC
Tracy, LLC (formerly WPH-Edgewood 56, LLC)
Western Pacific Housing-Agoura I, LLC
Western Pacific Housing-American Canyon, LLC
Western Pacific Housing-Bay Vista, LLC
Western Pacific Housing-Cabrera, LLC
Western Pacific Housing-Calvine, LLC
Western Pacific Housing-Cloverdale I, LLC
Western Pacific Housing-Cloverdale II, LLC
Western Pacific Housing-Cordelia Commons I, LLC
Western Pacific Housing-Coto I, LLC
Western Pacific Housing-Cypress Woods, LLC
Western Pacific Housing-Deer Creek, LLC
Western Pacific Housing-East Park, LLC
Western Pacific Housing-Edgewood 45, LLC
Western Pacific Housing-Escondido, LLC
Western Pacific Housing-Fieldstone, LLC
Western Pacific Housing-Hercules MRB, LLC
Western Pacific Housing-Hercules Village, LLC
Western Pacific Housing-Land Park North, LLC
Western Pacific Housing-Laurel Woods II, LLC
Western Pacific Housing-Martinez, LLC
Western Pacific Housing-Menifee, LLC
Western Pacific Housing-Montellano, LLC
Western Pacific Housing-Murrieta, LLC
Western Pacific Housing-Natomas Village 13, LLC
Western Pacific Housing-Paradise Creek, LLC
Western Pacific Housing-Providence I, LLC
Western Pacific Housing-Rowland Heights, LLC
Western Pacific Housing-Saddlebrook, LLC
Western Pacific Housing-San Elijo, LLC
Western Pacific Housing-Simi I, LLC
Western Pacific Housing-Sonoma, LLC
Western Pacific Housing-Spanish Hills, LLC
Western Pacific Housing-Stone Lake, LLC
Western Pacific Housing-Sun Valley, LLC
Western Pacific Housing-Terra Bay Woods, LLC
Western Pacific Housing-Torrey Glenn, LLC
Western Pacific Housing-Towngate, LLC
Western Pacific Housing-Valpico, LLC
Western Pacific Housing-Westminster, LLC
Western Pacific Housing-Windsor Pointe, LLC
Western Pacific Housing-Black Mountain, LLC
Western Pacific Housing-Cameron Meadows, LLC
Western Pacific Housing-Carlsberg Ranch, LLC
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Western Pacific Housing-Carpenteria, LLC
Western Pacific Housing-Dos Vientos 78, LLC
Western Pacific Housing-Fillmore, LLC
Western Pacific Housing-San Elijo Area R, LLC
Western Pacific Housing-Scott Ranch, LLC
Western Pacific Housing-Sorrento, LLC
Western Pacific Housing-Torrey, LLC
Western Pacific Housing-Torrey Santa Fe, LLC
WPH-SAL2, L.P. (formerly WPH-Sunset Hills III, L.P.)
WPH-SAL1, L.P.
WPH Management Co.
Western Pacific Housing-Altamar, LLC
Western Pacific Housing-Altura, L.P.
Western Pacific Housing-Arbor Hills, LLC
Western Pacific Housing-Bella Nevona, LLC
Western Pacific Housing-Carlsbad I, LLC
Western Pacific Housing-Carter Station, LLC
Western Pacific Housing-Corona, L.P.
Western Pacific Housing-Curran Grove, LLC
Western Pacific Housing-Del Sol
Western Pacific Housing-El Camino, LLC
Western Pacific Housing-Financing Partners
Western Pacific Housing-Glen View, LLC
Western Pacific Housing-Hamptons, L.P.
Western Pacific Housing-Mayfair, LLC
Western Pacific Housing-Pacific Park, L.P.
Western Pacific Housing-Penasquitos, LLC
Western Pacific Housing-Rancho Del Tio, LLC
Western Pacific Housing-Riverside I, LLC
Western Pacific Housing-San Simeon, L.P.
Western Pacific Housing-San Simeon II, L.P.
Western Pacific Housing-Shadow Creek, LLC
Western Pacific Housing-Skyridge, L.P.
Western Pacific Housing-Stanton I, LLC
Western Pacific Housing-Sunset Hills I, L.P.
Western Pacific Housing-Sunset Hills II, L.P.
Western Pacific Housing-Sutton Place, LLC
Western Pacific Housing-Tiburon II, L.P.
Western Pacific Housing-Torrey Hills, LLC
Western Pacific Housing-Westlake, L.P.
Western Pacific Housing-Winterhaven, LLC
Western Pacific Housing-Woods, L.P.
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ARTICLE V.
MISCELLANEOUS PROVISIONS
5.1. This First Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture and this First 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.
5.2 The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5.3 In the event that any provision in this First 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.
5.4 The article and section headings herein are for convenience only
and shall not affect the construction hereof.
5.5 Any capitalized term used in this First 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.
5.6 All covenants and agreements in this First 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 First Supplemental Indenture shall bind its
successors and assigns.
5.7 The laws of the State of New York shall govern this First
Supplemental Indenture, the Notes and the Guarantees.
5.8 Except as amended by this First Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
5.9 This First 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 First
Supplemental Indenture.
5.10 NO RECOURSE AGAINST OTHERS. A director, officer, controlling
person, employee or stockholder, as such, of the Company or any Guarantor or any
successor person thereof shall not have any liability for any Obligations,
covenants or agreements of the Company or any Guarantor under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations, covenants or agreements or their creation. Each Holder by
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accepting a Security waives and releases all such liability. The waiver and
releases are part of the consideration for the issue of the Securities.
5.11 The Trustee accepts the modifications of the trust effected by
this First 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 First 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 First
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,
Chief Financial Officer, and Treasurer
ADDITIONAL 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
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Samuel R. Fuller
Treasurer
Continental Homes of Texas, L.P.
By: CHTEX of Texas, Inc., the
general partner
By: /s/ SAMUEL R. FULLER
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Samuel R. Fuller
Treasurer
Meadows II, Ltd.
CH Investments of Texas, Inc.
By: /s/ WILLIAM PECK
-----------------------------
William Peck
President
Western Pacific Housing, Inc.
Western Pacific Housing-Park Avenue
East, LLC
Western Pacific Housing-Park Avenue
West, LLC
Western Pacific Housing-Copper Canyon,
LLC
Western Pacific Housing-Del Valle, LLC
Western Pacific Housing-River Ridge, LLC
Western Pacific Housing-Boardwalk, LLC
Western Pacific Housing-Studio 528, LLC
Western Pacific Housing-Terra Bay Duets,
LLC
Western Pacific Housing-Torrey Meadows,
LLC
Western Pacific Housing-Windemere, LLC
Western Pacific Housing-Playa Vista, LLC
Western Pacific Housing-Torrance, LLC
By: /s/ THOMAS CONNELLY
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Thomas Connelly, Chief Financial
Officer and Secretary of each
corporate guarantor and of each
managing member or sole manager of
each limited liability company
guarantor
D.R. Horton-Schuler Homes, LLC
By: Vertical Construction
Corporation, its manager
By:/s/ THOMAS CONNELLY
----------------------------
Thomas Connelly
Chief Financial Officer
and Secretary
EXISTING GUARANTORS:
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Melody Homes, Inc.
Melody Mortgage Co.
Schuler Homes of California, Inc.
Schuler Homes of Washington, Inc.
Schuler Homes of Oregon, Inc.
SHLR of Washington, Inc.
SHLR of Colorado, Inc.
SHLR of Nevada, Inc.
Schuler Realty/Maui, Inc.
Schuler Realty/Oahu, Inc.
Vertical Construction Corporation
SHLR of Utah, Inc.
Schuler Mortgage, Inc.
SHLR of California, Inc.
SSHI LLC (Stafford)
SRHI LLC (Rielly)
Schuler Homes of Arizona LLC
SHA Construction LLC
LAMCO Housing, Inc.
AP LHI, Inc.
APLAM, LLC
AP Western GP Corporation
AP WP Partners, L.P.
AP WP Operating Corporation
HPH Homebuilders 2000 LP
Porter GP LLC
Western Pacific Housing Management, Inc.
(formerly known as Western Pacific
Housing, Inc.)
Western Pacific Housing-Antigua, LLC
Western Pacific Housing-Broadway, LLC
Western Pacific Housing-Carrillo, LLC
Western Pacific Housing-Communications Hill,
LLC
Western Pacific Housing-Creekside, LLC
Western Pacific Housing-Lomas Verdes, LLC
Western Pacific Housing-Norco Estates, LLC
Western Pacific Housing-Robinhood Ridge, LLC
Western Pacific Housing-Vineyard Terrace, LLC
Western Pacific Housing-Lyons Canyon Partners,
LLC
Western Pacific Housing-Torrey Village Center
WPH-Camino Ruiz, LLC
WPH-HPH LLC
Western Pacific Funding, Inc.
Western Pacific Housing-McGonigle Canyon, LLC
Western Pacific Housing-Torrey Commercial, LLC
Western Pacific Housing-Torrey Multi-Family,
LLC
Allegra, LLC
Coto Venture, Ltd. (see WPH-Coto Venture, L.P.)
HPH Homebuilders LP 1995
HPH Homebuilders LP 1996
Livermore Homebuilders LP
Oakley-Avalon LP
Western Pacific Housing-Aviara, L.P.
Western Pacific Housing Co.
Western Pacific Housing-Canyon Park, LLC
Western Pacific Housing-Carmel, LLC
Western Pacific Housing-Coto Venture, L.P.
Western Pacific Housing-Culver City, L.P.
Western Pacific Housing-Lost Hills Park, LLC
Western Pacific Housing-Mountaingate, L.P.
Western Pacific Housing-Oso, L.P.
Western Pacific Housing-Pacific Park II, LLC
Western Pacific Housing-Poinsettia, L.P.
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-Westlake II, L.P.
Western Pacific Housing-Windflower, L.P.
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
U.S. Bank, N.A.
By: /s/ GONZALO UREY
-------------------------------------------
Name: Gonzalo Urey
-----------------------------------------
Title: Assistant Vice President
----------------------------------------