EX-4.12 6 d96909ex4-12.txt 1ST SUPPLEMENTAL INDENTURE RE: 10.5% SENIOR NOTES EXHIBIT 4.12 ================================================================================ 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 ----------- FIRST SUPPLEMENTAL INDENTURE Dated as of February 21, 2002 ----------- Supplementing the Indenture Dated as of June 28, 2001 with respect to the 10 1/2% Senior Subordinated Notes Due 2011 ================================================================================ 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 1 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. 2 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:
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
3
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
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: 4 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 5 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. 6 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 7 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] 8 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 ------------------------------ 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 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 ------------------------------------- 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: ------------------- 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 ----------------------------------------