EXHIBIT 4.14
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▇.▇. ▇▇▇▇▇▇, INC.,
THE GUARANTORS PARTY HERETO,
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of February 21, 2002
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Supplementing the Indenture
Dated as of September 11, 2000
with respect to the
9 3/4% Senior Subordinated Notes Due 2010
9 3/8% Senior Subordinated Notes Due 2011
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THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of February 21, 2002, to
the Indenture, dated as of September 11, 2000 (as amended, modified or
supplemented from time to time in accordance therewith, the "Indenture"), by and
among ▇.▇. ▇▇▇▇▇▇, INC., a Delaware corporation (the "Company"), the ADDITIONAL
GUARANTORS (as defined herein), the EXISTING GUARANTORS (as defined herein) 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
September 11, 2000 (the "First Supplemental Indenture"), among the Company, the
guarantors party thereto and the Trustee, the Company issued a series of
Securities designated as its 9 3/4% Senior Subordinated Notes due 2010 in the
aggregate principal amount of up to $200,000,000 (the "9 3/4% Notes");
WHEREAS, pursuant to the Second Supplemental Indenture dated as of
March 12, 2001 (the "Second Supplemental Indenture"), among the Company, the
guarantors party thereto and the Trustee, the Company issued a series of
Securities designated as its 9 3/8% Senior Subordinated Notes due 2011 in the
aggregate principal amount of up to $200,000,000 (the "9 3/8% Notes" and,
together with the 9 3/4% Notes, the "Notes");
WHEREAS, pursuant to the Third Supplemental Indenture dated as of May
21, 2001 (the "Third Supplemental Indenture"), among the Company, the guarantors
party thereto (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 ▇▇▇▇▇▇▇
Homes, Inc., a Delaware corporation ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ was duly merged with
and into the Company, with the Company continuing as the surviving corporation
(the "Merger");
WHEREAS, pursuant to Section 4.05 of the Indenture, any Restricted
Subsidiary that the Company organizes, acquires or otherwise invests in, or any
Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary, is
required to guarantee the Notes for all purposes under the Indenture;
WHEREAS, as a result of the Merger and pursuant to Section 4.05 of the
Indenture, the Company desires to cause each of the former subsidiaries of
▇▇▇▇▇▇▇ 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
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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; and
WHEREAS, the execution of this Fourth 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 Fourth 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 Section 4.05 of the Indenture, 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
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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
▇.▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇ LLC Delaware
▇▇▇▇▇▇▇ Homes of Arizona LLC Delaware
▇▇▇▇▇▇▇ Homes of California, Inc. California
▇▇▇▇▇▇▇ Homes of Oregon, Inc. Oregon
▇▇▇▇▇▇▇ Homes of Washington, Inc. Washington
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▇▇▇▇▇▇▇ Mortgage, Inc. Delaware
▇▇▇▇▇▇▇ Realty/Maui, Inc. Hawaii
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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-▇▇▇▇▇▇▇▇, 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-▇▇▇▇▇▇ City, L.P. California
Western Pacific Housing-Del ▇▇▇▇▇, LLC Delaware
Western Pacific Housing-Lomas Verdes, LLC Delaware
Western Pacific Housing-Lost Hills Park, LLC Delaware
Western Pacific Housing-▇▇▇▇▇ Canyon Delaware
Partners, LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇▇ Canyon, LLC Delaware
Western Pacific Housing-Mountaingate, L.P. California
Western Pacific Housing-Norco Estates, LLC Delaware
Western Pacific Housing-Oso, L.P. California
Western Pacific Housing-Pacific Park II, LLC Delaware
Western Pacific Housing-Park Avenue East, LLC Delaware
Western Pacific Housing-Park Avenue West, LLC Delaware
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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-▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇, 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.
1.3 In accordance with Section 5.01 of the Indenture, the Company, as
the surviving entity in the Merger, assumes all of the obligations of the
Company under the Notes and the Indenture.
1.4. 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 June 28, 2001, related to the 10 1/2% Senior
Subordinated Notes due 2011, by and among the Company, the guarantors named
therein and U.S. Bank, N.A., as trustee.
ARTICLE II.
MISCELLANEOUS
2.1. This
Fourth Supplemental Indenture constitutes a supplement to the
Indenture, and the Indenture and this
Fourth 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.
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2.2 The parties may sign any number of copies of this
Fourth
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
Fourth 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.
2.4 The article and section headings herein are for convenience only
and shall not affect the construction hereof.
2.5 Any capitalized term used in this
Fourth 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
Fourth 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 Fourth Supplemental Indenture shall bind its
successors and assigns.
2.7 The laws of the State of New York shall govern this Fourth
Supplemental Indenture, the Notes and the Guarantees.
2.8 Except as amended by this Fourth Supplemental Indenture, the terms
and provisions of the Indenture shall remain in full force and effect.
2.9 This Fourth 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 Fourth
Supplemental Indenture.
2.10 All liability described in paragraph 12 of the 9 3/4% Notes or
paragraph 13 of the 9 3/8% 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 Fourth 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 Fourth 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 Fourth
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
▇.▇. ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President, Treasurer and
Chief Financial Officer
EXISTING GUARANTORS:
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Builders, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
Continental Homes, Inc.
Continental Homes of Florida, Inc.
Continental Residential, Inc.
▇.▇. ▇▇▇▇▇▇, Inc. - Birmingham
▇.▇. ▇▇▇▇▇▇, Inc. - Chicago
▇.▇. ▇▇▇▇▇▇, Inc. - Denver
▇.▇. ▇▇▇▇▇▇, Inc. - ▇▇▇▇▇-▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇, Inc. - Greensboro
▇.▇. ▇▇▇▇▇▇, Inc. - Jacksonville
▇.▇. ▇▇▇▇▇▇, Inc. - Louisville
▇.▇. ▇▇▇▇▇▇ Los Angeles Holding Company,
Inc.
▇.▇. ▇▇▇▇▇▇, Inc. - Minnesota
▇.▇. ▇▇▇▇▇▇, Inc. - New Jersey
▇.▇. ▇▇▇▇▇▇, Inc. - Portland
▇.▇. ▇▇▇▇▇▇, Inc. - Sacramento
▇.▇. ▇▇▇▇▇▇ San Diego Holding Company, Inc.
▇.▇. ▇▇▇▇▇▇, 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.
▇▇▇▇▇▇▇ I, Ltd.
▇▇▇▇▇▇▇ VIII, Ltd.
▇▇▇▇▇▇▇ IX, Inc.
▇▇▇▇▇▇▇ X, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
DRH Regrem VIII, LLC
DRH Cambridge Homes, LLC
By: ▇.▇. ▇▇▇▇▇▇, Inc. - Chicago,
a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
▇.▇. ▇▇▇▇▇▇ - Emerald, Ltd.
▇.▇. ▇▇▇▇▇▇ Management Company, Ltd.
▇.▇. ▇▇▇▇▇▇-Texas, Ltd.
DRH Regrem VII, LP
By: ▇▇▇▇▇▇▇ I, Ltd., the general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
SGS Communities At Grande Quay, LLC
By: ▇▇▇▇▇▇▇ IX, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
and
By: ▇▇▇▇▇▇▇ X, Inc., a member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
Continental Homes of Texas, L.P.
By: CHTEX of Texas, Inc., the
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
▇▇▇▇▇▇▇ II, Ltd.
CH Investments of Texas, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
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 ▇▇
▇▇▇▇▇▇ GP LLC
▇▇▇▇▇▇▇ Homes of Arizona LLC
▇▇▇▇▇▇▇ Homes of California, Inc.
▇▇▇▇▇▇▇ Homes of Oregon, Inc.
▇▇▇▇▇▇▇ Homes of Washington, Inc.
▇▇▇▇▇▇▇ Mortgage, Inc.
▇▇▇▇▇▇▇ Realty/Maui, Inc.
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
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-▇▇▇▇▇▇▇▇, 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-▇▇▇▇▇▇ City, L.P.
Western Pacific Housing-Del ▇▇▇▇▇, LLC
Western Pacific Housing-Lomas Verdes, LLC
Western Pacific Housing-Lost Hills Park, LLC
Western Pacific Housing-▇▇▇▇▇ Canyon Partners,
LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇▇ 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-▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇, LLC
WPH-HPH, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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
▇.▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Homes, LLC
By: Vertical Construction
Corporation, its manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
and Secretary
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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