EXHIBIT 4.13
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X.X. XXXXXX, INC.,
THE GUARANTORS PARTY HERETO,
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as
Trustee
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FOURTEENTH SUPPLEMENTAL INDENTURE
Dated as of February 21, 2002
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Supplementing the Indenture
Dated as of June 9, 1997
with respect to the
8 3/8% Senior Notes Due 2004
10 1/2% Senior Notes Due 2005
8% Senior Notes Due 2009
7 7/8% Senior Notes Due 2011
Zero Coupon Convertible Senior Notes Due 2021
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THIS FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of February 21, 2002,
to the Indenture, dated as of June 9, 1997 (as amended, modified or supplemented
from time to time in accordance therewith, the "Indenture"), by and among X.X.
XXXXXX, 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 June
9, 1997 (the "First Supplemental Indenture"), among the Company, the guarantors
party thereto and the Trustee, the Company issued a series of Securities
designated as its 8 3/8% Senior Notes due 2004 in the aggregate principal amount
of $250,000,000 (the "8 3/8% Notes"), pursuant to the Sixth Supplemental
Indenture, dated as of February 4, 1999 (the "Sixth Supplemental Indenture"),
among the Company, the guarantors party thereto and the Trustee, the Company
issued a series of Securities designated as its 8% Senior Notes due 2009 in the
aggregate principal amount of up to $400,000,000 (the "8% Notes"), pursuant to
the Eighth Supplemental Indenture, dated as of March 21, 2000 (the "Eighth
Supplemental Indenture") and the Tenth Supplemental Indenture, dated as of June
5, 2000 (the "Tenth Supplemental Indenture"), among the Company, the guarantors
party thereto and the Trustee, the Company issued a series of Securities
designated as its 10 1/2% Senior Notes due 2005 in the aggregate principal
amount of $200,000,000 (the "10 1/2% Notes"), pursuant to the Eleventh
Supplemental Indenture, dated as of May 11, 2001 (the "Eleventh Supplemental
Indenture"), among the Company, the guarantors party thereto and the Trustee,
the Company issued a series of Securities designated as its Zero Coupon
Convertible Senior Notes due 2021 in the aggregate principal amount at maturity
of $381,113,000 (the "Zero Coupon Notes"), and pursuant to the Thirteenth
Supplemental Indenture, dated as of August 15, 2001 (the "Thirteenth
Supplemental Indenture"), among the Company, the guarantors party thereto (the
"Existing Guarantors") and the Trustee, the Company issued a series of
Securities designated as its 7 7/8% Senior Notes due 2011 in the aggregate
principal amount of $200,000,000 (the "7 7/8% Notes" and, together with the 8
3/8% Notes, the 8% Notes, the 10 1/2% Notes and the Zero Coupon Notes, the
"Notes");
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 Xxxxxxx
Homes, Inc., a Delaware corporation ("Xxxxxxx"), Xxxxxxx 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
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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
Xxxxxxx 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 Notes on
the terms set forth in the Indenture; and
WHEREAS, the execution of this Fourteenth 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 Fourteenth 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
X.X. Xxxxxx-Xxxxxxx 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
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Name Jurisdiction of Organization
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Melody Mortgage Co. Colorado
Oakley-Avalon LP California
Xxxxxx XX LLC Delaware
Xxxxxxx Homes of Arizona LLC Delaware
Xxxxxxx Homes of California, Inc. California
Xxxxxxx Homes of Oregon, Inc. Oregon
Xxxxxxx Homes of Washington, Inc. Washington
Xxxxxxx Mortgage, Inc. Delaware
Xxxxxxx Realty/Maui, Inc. Hawaii
Xxxxxxx 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. (formerly Western Pacific California
Housing, Inc., a California corporation)
Western Pacific Housing, Inc. (formerly Xxxxxxx Holdco, Inc., a Delaware
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-Xxxxxxxx, LLC Delaware
Western Pacific Housing-Communications Hill, LLC Delaware
Western Pacific Housing-Copper Canyon, LLC Delaware
Western Pacific Housing-Coto Venture, L.P. California
Western Pacific Housing-Creekside, LLC Delaware
Western Pacific Housing-Xxxxxx City, L.P. California
Western Pacific Housing-Del Xxxxx, LLC Delaware
Western Pacific Housing-Lomas Verdes, LLC Delaware
Western Pacific Housing-Lost Hills Park, LLC Delaware
Western Pacific Housing-Xxxxx Canyon Partners, LLC Delaware
Western Pacific Housing-XxXxxxxxx Canyon, LLC Delaware
Western Pacific Housing-Mountaingate, L.P. California
Western Pacific Housing-Norco Estates, LLC Delaware
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Name Jurisdiction of Organization
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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
Western Pacific Housing-Playa Vista, LLC Delaware
Western Pacific Housing-Poinsettia, 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-Xxxxxx Xxxxxxx, 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 Xxxx, 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.
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 Xxxxxxx, the guarantors party thereto and U.S. Bank Trust
National Association, as trustee.
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ARTICLE III.
MISCELLANEOUS
3.1. This Fourteenth Supplemental Indenture constitutes a supplement to
the Indenture, and the Indenture and this Fourteenth 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 Fourteenth
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 Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth Supplemental Indenture shall
bind its successors and assigns.
3.7 The laws of the State of
New York shall govern this Fourteenth
Supplemental Indenture, the Notes and the Guarantees.
3.8 Except as amended by this Fourteenth Supplemental Indenture, the
terms and provisions of the Indenture shall remain in full force and effect.
3.9 This Fourteenth 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
Fourteenth Supplemental Indenture.
3.10 All liability described in paragraph 12 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 Fourteenth 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
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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 Fourteenth 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 Fourteenth
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
X.X. XXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Executive Vice President,
Chief Financial Officer, and Treasurer
EXISTING GUARANTORS:
C. Xxxxxxx Xxxxxx Builders, Inc.
CHI Construction Company
CHTEX of Texas, Inc.
Continental Homes, Inc.
Continental Homes of Florida, Inc.
Continental Residential, Inc.
X.X. Xxxxxx, Inc. - Birmingham
X.X. Xxxxxx, Inc. - Chicago
X.X. Xxxxxx, Inc. - Denver
X.X. Xxxxxx, Inc. - Xxxxx-Xxxxx
X.X. Xxxxxx, Inc. - Greensboro
X.X. Xxxxxx, Inc. - Jacksonville
X.X. Xxxxxx, Inc. - Louisville
X.X. Xxxxxx Los Angeles Holding Company, Inc.
X.X. Xxxxxx, Inc. - Minnesota
X.X. Xxxxxx, Inc. - New Jersey
X.X. Xxxxxx, Inc. - Portland
X.X. Xxxxxx, Inc. - Sacramento
X.X. Xxxxxx San Diego Holding Company, Inc.
X.X. Xxxxxx, 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.
Xxxxxxx I, Ltd.
Xxxxxxx VIII, Ltd.
Xxxxxxx IX, Inc.
Xxxxxxx X, Inc.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
DRH Regrem VIII, LLC
DRH Cambridge Homes, LLC
By: X.X. Xxxxxx, Inc. - Chicago,
a member
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
X.X. Xxxxxx - Emerald, Ltd.
X.X. Xxxxxx Management Company, Ltd.
X.X. Xxxxxx-Texas, Ltd.
DRH Regrem VII, LP
By: Xxxxxxx I, Ltd., the general
partner
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
SGS Communities At Grande Quay, LLC
By: Xxxxxxx IX, Inc., a member
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
and
By: Xxxxxxx X, Inc., a member
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
Continental Homes of Texas, L.P.
By: CHTEX of Texas, Inc., the
general partner
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Treasurer
Xxxxxxx II, Ltd.
CH Investments of Texas, Inc.
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
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 XX
Xxxxxx GP LLC
Xxxxxxx Homes of Arizona LLC
Xxxxxxx Homes of California, Inc.
Xxxxxxx Homes of Oregon, Inc.
Xxxxxxx Homes of Washington, Inc.
Xxxxxxx Mortgage, Inc.
Xxxxxxx Realty/Maui, Inc.
Xxxxxxx 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 Xxxxxxx
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-Xxxxxxxx, 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-Xxxxxx City, L.P.
Western Pacific Housing-Del Xxxxx, LLC
Western Pacific Housing-Lomas Verdes, LLC
Western Pacific Housing-Lost Hills Park, LLC
Western Pacific Housing-Xxxxx Canyon Partners,
LLC
Western Pacific Housing-XxXxxxxxx 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-Xxxxxx Xxxxxxx, 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 Xxxx, LLC
WPH-HPH, LLC
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx, 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
X.X. Xxxxxx-Xxxxxxx Homes, LLC
By: Vertical Construction
Corporation, its manager
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
Chief Financial Officer
and Secretary
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Trustee
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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