Sixth Supplemental Indenture to 9% Senior Notes Due 2008 among Schuler Homes, Inc., Guarantors, and BNY Western Trust Company

Summary

This agreement is a supplemental indenture dated October 4, 2001, among Schuler Homes, Inc., its designated subsidiaries (as Guarantors), and BNY Western Trust Company (as Trustee). It amends the original indenture for Schuler Residential’s 9% Senior Notes due 2008 by adding new subsidiaries as guarantors of the notes. The agreement confirms that these additional guarantors are now legally responsible for the payment of the notes, and it ratifies all previous terms of the indenture. The agreement is governed by New York law and is effective upon signing by all parties.

EX-4.7 3 d96909ex4-7.txt 6TH SUPPLEMENTAL INDENTURE RE: 9% SENIOR NOTES EXHIBIT 4.7 SIXTH SUPPLEMENTAL INDENTURE Dated as of October 4, 2001 among SCHULER HOMES, INC. (formerly known as Schuler Holdings, Inc.), THE GUARANTORS PARTY HERETO and BNY WESTERN TRUST COMPANY AS TRUSTEE Supplementing the Indenture Dated as of May 6, 1998 SIXTH SUPPLEMENTAL INDENTURE This SIXTH SUPPLEMENTAL INDENTURE, dated as of October 4, 2001 (this "Sixth Supplemental Indenture"), by and among Schuler Homes, Inc., a Delaware corporation (formerly known as Schuler Holdings, Inc.) ("Schuler Homes"), the Guarantors signatory hereto BNY Western Trust Company, as successor in interest to U.S. Trust Company, National Association, as trustee (the "Trustee"). WHEREAS, Schuler Residential, Inc., a Delaware corporation ("Schuler Residential") (formerly known as Schuler Homes, Inc.) and the Guarantors signatory thereto executed and delivered the Indenture dated as of May 6, 1998, as supplemented by the First Supplemental Indenture, dated as of February 26, 1999, the Second Supplemental Indenture, dated as of July 15, 1999, the Third Supplemental Indenture, dated as of July 27, 2000, the Fourth Supplemental Indenture, dated as of October 20, 2000 and the Fifth Supplemental Indenture, dated as of June 21, 2001 (as supplemented, the "Indenture"), to the Trustee to provide for the issuance of Schuler Residential's 9% Senior Notes Due 2008 (the "Securities"). WHEREAS, pursuant to an Agreement and Plan of Reorganization, dated as of September 12, 2000 (the "Plan of Reorganization"), as amended, by and among Schuler Residential, Apollo Real Estate Investment Fund, L.P., a Delaware limited partnership ("Apollo"), Blackacre WPH, LLC, a Delaware limited liability company ("Blackacre"), Highridge Pacific Housing Investors, L.P., a California limited partnership ("Highridge"), AP WP Partners, L.P., a Delaware limited partnership ("APWP"), AP Western GP Corporation, a Delaware corporation ("AP Western"), API LHI, Inc., a California corporation ("API"), and Lamco Housing, Inc., a California corporation ("LAMCO," and collectively with Apollo, Blackacre, Highridge, APWP, AP Western and API, the "WP Partners"), (1) Schuler Residential and the WP Partners formed Schuler Homes and (2) a wholly-owned subsidiary of Schuler Homes merged into Schuler Residential, with Schuler Residential as the surviving corporation, as a result of which Schuler Residential became a wholly-owned subsidiary of Schuler Homes. WHEREAS, on April 2, 2001, pursuant to the Plan of Reorganization, Schuler Residential changed its name from "Schuler Homes, Inc." to "Schuler Residential, Inc.", and Schuler Homes changed its name from "Schuler Holdings, Inc." to "Schuler Homes, Inc." WHEREAS, in connection with the Plan of Reorganization, Schuler Homes acquired various subsidiaries which have been designated as Restricted Subsidiaries. WHEREAS, on June 21, 2001, pursuant to Section 2.6(b) of the Plan of Reorganization, Schuler Residential was merged into Schuler Homes, with Schuler Homes as the surviving corporation of such merger. WHEREAS, on June 21, 2001, Schuler Homes assumed all of the Obligations of Schuler Residential under the Indenture and the Securities. 1 WHEREAS, Schuler Homes desires that pursuant to Section 4.18 and Article 10 of the Indenture, those Restricted Subsidiaries listed on Exhibit A hereto (the "Additional Guarantors") shall become Guarantors under the Indenture. WHEREAS, Schuler Homes, the Guarantors and the Trustee have agreed to execute this Sixth Supplemental Indenture and have done all things necessary under their respective organizational documents and the Indenture to enter into this Sixth Supplemental Indenture. WHEREAS, Section 9.01 of the Indenture provides that the Company and the Guarantors, with the consent of the Trustee, may amend, modify or supplement the Indenture without notice to or the consent of any holder of the Securities for the purpose of reflecting additional guarantors in order to comply with Section 4.18 of the Indenture, and to make any other change that does not adversely affect the rights of any holder of the Securities. NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained, each party hereto agrees as follows for the benefit of the holders of the Securities: ARTICLE 1. DEFINITIONS Section 1.01. Definitions of Terms. Unless the context otherwise requires: (a) capitalized terms used herein that are not otherwise defined herein shall have the meaning assigned to such terms in the Indenture; (b) references to Sections or Articles mean references to such Section or Article in the Indenture, unless stated otherwise; and (c) rules of construction applicable pursuant to the Indenture are also applicable herein. ARTICLE 2. ADDITIONAL GUARANTORS Each of the Additional Guarantors listed on Exhibit A hereto hereby agrees to become a Guarantor under the Indenture, and upon its execution and delivery of this Sixth Supplemental Indenture, each of such Additional Guarantors guarantees payment of the Securities pursuant to the terms of Article 10 of the Indenture and Exhibit B thereto. 2 ARTICLE 3. MISCELLANEOUS Section 3.01. Authorization. The execution, delivery and performance by Schuler Homes and the Guarantors of this Sixth Supplemental Indenture have been duly authorized by all necessary action of Schuler Homes and each such Guarantor. Section 3.02. Ratification of Indenture. The Indenture, as supplemented by this Sixth Supplemental Indenture, is in all respects ratified and confirmed, and this Sixth Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall benefit and be bound hereby. Section 3.03. Governing Law. This Sixth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws provisions thereof. Section 3.04. Severability. In case any one or more of the provisions in this Sixth Supplemental Indenture shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law. Section 3.05. Counterparts. This Sixth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Section 3.06. Effectiveness. This Sixth Supplemental Indenture shall be effective and binding upon execution hereof by Schuler Homes, the Guarantors and the Trustee. Section 3.07. Trustee Not Responsible for Recitals. The recitals herein contained are made by Schuler Homes and the Guarantors and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof and shall incur no liability for any incorrectness thereof. The Trustee makes no representation as to the validity or sufficiency of this Sixth Supplemental Indenture. Section 3.08. Performance of Trustee. The Trustee, for itself and its successors, accepts the Trust of the Indenture as amended by this Sixth Supplemental Indenture and agrees to perform this Sixth Supplemental Indenture and the Indenture, but only upon the terms and conditions set forth herein and therein, including the terms and provisions in the Indenture defining and limiting the liability and responsibility of the Trustee. Section 3.09. Compensation. Schuler Homes shall promptly reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it in administering and executing this Sixth Supplemental Indenture. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the Trustee's agents and counsel. 3 IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed, all as of the date first written above. SCHULER HOMES, INC. By: /s/ Thomas Connelly --------------------------------------- Thomas Connelly Senior Vice President and Chief Financial Officer SCHULER HOMES OF CALIFORNIA, INC. SCHULER HOMES OF OREGON, INC. SCHULER HOMES OF WASHINGTON, INC. MELODY HOMES, INC. MELODY MORTGAGE CO. SCHULER REALTY/MAUI, INC. SCHULER REALTY/OAHU, INC. LOKELANI CONSTRUCTION CORPORATION SHLR OF WASHINGTON, INC. SHLR OF COLORADO, INC. SSHI LLC SHLR OF NEVADA, INC. SRHI LLC SCHULER HOMES OF ARIZONA LLC SHLR OF CALIFORNIA, INC. SCHULER MORTGAGE, INC. SHA CONSTRUCTION LLC, as Guarantors By: /s/ Thomas Connelly --------------------------------------- Thomas Connelly Senior Vice President, Chief Financial Officer and Secretary 4 EACH OF THE GUARANTORS LISTED ON EXHIBIT A HERETO By: /s/ Thomas Connelly ---------------------------------------- Thomas Connelly Authorized Person BNY WESTERN TRUST COMPANY, as successor in interest to U.S. TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: /s/ Sandra H. Leess ---------------------------------------- 5 EXHIBIT A ADDITIONAL GUARANTORS 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 Porter LP LLC Western Pacific Housing, Inc. Western Pacific Housing Development Limited Partnership Western Pacific Housing Development II Limited Partnership WPH-Porter, LLC Tracy, LLC (formerly WPH-Edgewood 56, LLC) Western Pacific Housing-Agoura I, LLC Western Pacific Housing-American Canyon, LLC Western Pacific Housing-Antigua, LLC Western Pacific Housing-Bay Vista, LLC Western Pacific Housing-Broadway, LLC Western Pacific Housing-Cabrera, LLC Western Pacific Housing-Calvine, LLC Western Pacific Housing-Carrillo, LLC Western Pacific Housing-Cloverdale I, LLC Western Pacific Housing-Cloverdale II, LLC Western Pacific Housing-Communications Hill, LLC Western Pacific Housing-Cordelia Commons I, LLC Western Pacific Housing-Coto I, LLC Western Pacific Housing-Creekside, 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-Lomas Verdes, 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-Norco Estates, LLC Western Pacific Housing-Paradise Creek, LLC Western Pacific Housing-Providence I, LLC Western Pacific Housing-Robinhood Ridge, 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-Vineyard Terrace, 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 Western Pacific Housing-Carpenteria, LLC Western Pacific Housing-Dos Vientos 78, LLC Western Pacific Housing-Fillmore, LLC Western Pacific Housing-Lyons Canyon Partners, LLC Western Pacific Housing-San Elijo Area R, LLC Western Pacific Housing-Scott Ranch, LLC Western Pacific Housing-Sorrento, LLC Western Pacific Housing-Torrey Village Center Western Pacific Housing-Torrey, LLC Western Pacific Housing-Torrey Santa Fe, LLC WPH-Camino Ruiz, LLC WPH-HPH LLC WPH-SAL2, L.P. (formerly WPH-Sunset Hills III, L.P.) Western Pacific Funding, Inc. Western Pacific Housing - McGonigle Canyon, LLC Western Pacific Housing-Torrey Commercial, LLC Western Pacific Housing-Torrey Multi-Family, LLC WPH-SAL1, L.P. WPH Management Co. 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-Altamar, LLC Western Pacific Housing-Altura, L.P. Western Pacific Housing-Arbor Hills, LLC Western Pacific Housing-Aviara, L.P. Western Pacific Housing-Bella Nevona, LLC Western Pacific Housing Co. Western Pacific Housing-Canyon Park, LLC Western Pacific Housing-Carlsbad I, LLC Western Pacific Housing-Carmel, LLC Western Pacific Housing-Carter Station, LLC Western Pacific Housing-Corona, L.P. Western Pacific Housing-Coto Venture, L.P. Western Pacific Housing-Culver City, 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-Lost Hills Park, LLC Western Pacific Housing-Mayfair, LLC Western Pacific Housing-Mountaingate, L.P. Western Pacific Housing-Oso, L.P. Western Pacific Housing-Pacific Park, L.P. Western Pacific Housing-Pacific Park II, LLC Western Pacific Housing-Penasquitos, LLC Western Pacific Housing-Poinsettia, L.P. 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-Santa Fe, LLC Western Pacific Housing-Saugus, L.P. Western Pacific Housing-Scripps, L.P. Western Pacific Housing-Scripps II, LLC Western Pacific Housing-Seacove, 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-Westlake II, L.P. Western Pacific Housing-Windflower, L.P. Western Pacific Housing-Winterhaven, LLC Western Pacific Housing-Woods, L.P. Western Pacific Housing-Boardwalk, LLC Western Pacific Housing-Brea Olinda, LLC Western Pacific Housing-Gonsalves, LLC Western Pacific Housing-Lemon Grove, LLC Western Pacific Housing-Studio 528, LLC Western Pacific Housing-Terra Bay Duets, LLC Western Pacific Housing-Torrey Meadows, LLC Western Pacific Housing-Glacier, LLC Western Pacific Housing-Camarillo, LLC Western Pacific Housing-Playa Vista, LLC Western Pacific Housing-Torrance, LLC