EXHIBIT 4.15
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D.R. HORTON, INC.,
THE GUARANTORS PARTY HERETO,
AND
FIRST UNION NATIONAL BANK,
as
Trustee
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of February 21, 2002
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Supplementing the Indenture
Dated as of April 15, 1996
with respect to the
10% Senior Notes Due 2006
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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;
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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:
<Table>
<Caption>
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
</Table>
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<Table>
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
</Table>
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<Table>
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
</Table>
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.
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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
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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]
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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
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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
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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
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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
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Samuel R. Fuller
Treasurer
SGS Communities At Grande Quay, LLC
By: Meadows IX, Inc., a member
By: /s/ SAMUEL R. FULLER
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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
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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
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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
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Thomas Connelly
Chief Financial Officer
and Secretary
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ GEORGE J. RAYZIS
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Name: George J. Rayzis
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Title: Vice President
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